82 Fla. 191 | Fla. | 1921
This was an action brought by tbe plaintiff in error in the Circuit Court for Citrus County, against
The first count of the declaration which as above stated was for the recovery of taxes assessed upon the “railroad track and road bed” alleges that the said assessment was illegally and erroneously made by the tax assessor because the plaintiff did not own the “railroad right of way” when the assessment was made and that the “railroad right of way was never in existence as the property of the plaintiff and the plaintiff never owned said 9.11 miles of right of way and therefore there was never any such property as the 9.11 miles of right of way that the tax assessor of Citrus County, Florida, could have assessed against the plaintiff. ’ ’
The defendant, Allen, by his counsel interposed a demurrer to the first and second counts of the declaration, the third, fourth, fifth and seventh grounds of which are relied upon by the defendant as being sufficient. In these grounds it is contended that the declaration does not allege in what manner the assessment, levy and collection of the tax was illegal; second that the allegation of the declaration concerning the invalidity of' the assessment were mere allegations of conclusions of law; third, that it appears affirmatively from the declaration that the defendant was the tax collector of Citrus County, that the assessment of the plaintiff’s property appeared on its face to be regular and that it was the duty of the tax collector under the laws of the State to collect the taxes and that having discharged his duty he could not be held liable for his official acts; forth, that it affirmatively appears that the defendant was acting as the agent of Citrus County and the State of Florida in the discharge of an official duty and that in so doing he is not liable to the plaintiff in any amount of damages. The other grounds of the demurrer attack the allegations of the declaration as to the invalidity of the tax assessment and further that the payments appear to
The demurrer was sustained and judgment was entered against the plaintiff because as it was recited in the order it refused to plead further. This was an erroneous order and the ease will have to be reversed because of it. The demurrer went only to the first and second counts of the declaration and it left three common counts in the declaration which had not been withdrawn and to which the plea of the general issue had been interposed and two special pleas averring that the money sued for .had been paid to the defendant as tax collector of Citrus County in the settlement of the taxes legally due by the plaintiff and third that the plaintiff on the first of January 1913 operated a line of railroad in Citrus County with various side lines and spur tracks and that for those years the defendant did not return for taxation all of its lines and spur tracks as required by law and it became the duty of the •tax assessor to assess that portion of the side lines and spur tracks that had not been returned by the plaintiff for taxes and that it was for the taxes due and paid by the plaintiff upon the omitted side lines and spur tracks that the action was brought.
A judgment against the plaintiff upon the defendant’s demurer to the first and'second counts of the declaration should not have been entered unless the common counts had been withdrawn. The one assignment of error is that the Court erred in entering final judgment upon the demurrer to the plaintiff’s amended declaration and upon that assignment counsel for the plaintiff in error urged that the first and second counts of the amended- declaration
This uncertain ambiguous language we will construe as the trial court evidently construed it to mean that the tax paid by the plaintiff and which it seeks to recover in this action was upon the road bed, track,and right of way of the plaintiff, corporation in Citrus County and that such road bed and track and right of way was not owned or possessed by the plaintiff at the time of the assessment nor was the particular road bed, right of way and track upon which the tax was assessed and levied in existence at the time of the assessment. That fact then was admitted by the demurrer of the defendant. So that the single
Now the assessment being admitted by the demurrer to have been illegal was the tax collector liable 'in damages to the plaintiff for its enforcement? The circumstances under which it is alleged the plaintiff paid the tax renders the, payment an involuntary one. Here the tax collector had not only threatened to exercise a power with which he was clothed by law but had actually exercised it to the extent of seizing the property described and taking the same into his possession. . This allegation was made as to the first count. As to the second count it was alleged .that
In the case of Florida Packing and Ice Co. v. Carney, 51 Fla. 190, this court held that the tax collector was liable
The case of Florida Packing and Ice Co. v. Carney,
Now as it is the duty of the tax collector to pay over to-the state and county authorities the money collected by him for taxes the presumption exists in this case that he had paid over the money collected from the plaintiff when the action was brought and in the absence of an allegation to the contrary the declaration was defective and the demurrer was well taken. But this judgment will have to be reversed for the error pointed out. It is ordered that the judgment be reversed with directions .to enter an order sustaining the demurrers of the defendant to the first and second counts of the declaration and that such further proceedings be taken in the case as are consistent with this opinion.