304 BIENNIAL REPORT OF THE ATTORNEY GENERAL
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1 304 BIENNIAL REPORT OF THE ATTORNEY GENERAL occupant and his family, is no test by which to ascertain if it is exempt, because it is not made such by the constitution; neither can its use in connection with make it a part of the tract upon which the home is located, where the two tracts are entirely separate and distinct.... (Emphasis supplied.) The situation posed by your letter is dissimilar from that which confronted the court in the case of Clark v. Cox, 85 So In that case the pivotal question was whether or not there had been an abandonment of the homestead by the conveyance of a railroad right-ofway through the homestead property. There the court pointed out that a homestead once established continued to be a homestead until abandoned and found that the property on the railroad right-of-way was still impressed with the homestead status. In the situation posed by your letter you point out that the state highway existed before the homestead was claimed. I conclude therefore that the parcel of real estate separated from the homestead is not entitled to homestead exemption. I also refer you to AGO 057-6, Biennial Report of the Attorney General, , p. 7; AGO , Biennial Report of the Attorney General, , p. 352; Shone v. Bellmore, 78 So. 605; Wilson v. Florida Nat'l Bank & Trust Co. at Miami, 64 So.2d 309; and State ex rel. Dunscombe v. Courson, 198 So JulY 23, 1968 TAXATION MILLAGE, METHOD OF FIXING, LIMITATION-CONSTRUCTION OF AND , F. S. To: Fred O. Dickinson, Jr., State Comptroller, Tallahassee QUESTION: Is Hillsborough County, as well as other governing authorities of taxing districts in this state, limited to the rate of millage fixed in 1967, or may the county and the other governing authorities of taxing districts in this state avail themselves of provision of , F. S., and increase the millage by not more than 10%? As I construe your question, it deals with Hillsborough County and other counties situated like Hillsborough County. Your letter states: Hillsborough County is in the process of preparing its budget for the fiscal year and is concerned of the millage to be affixed for the year In 1967, this county accomplished reevaluation and complied with , F. S., in fixing millage for that tax year. You further state that on the effective date of Ch , Laws of Florida, now found in , F. S., inclusive, Hillsborough County's rate of millage was in excess of 10 mills. Section 1, Ch , Laws of Florida ( (1), F. S.) provides in part: Except as otherwise provided herein, no aggregate ad valorem tax millage, shall be levied against real and tangible personal property by counties and districts as herein defined
2 BIENNIAL REPORT OF THE ATTORNEY GENERAL 305 in excess of ten (10) mills on the dollar of assessed value, except for special benefits and debt service on obligations issued in connection therewith, except for that millage authorized in article XII, sections 8 and 10 of the Florida constitution... However, nothing in this act shall prevent any board of county commissioners or board of public instruction to each levy at least five (5) mills, and the provisions of section , Florida Statutes, shall not apply herein to this extent. (Emphasis supplied.) As I interpret said provision this establishes a positive limitation on the aggregate ad valorem tax millage levied against real and tangible personal property by counties and districts. This limitation is in the amount of 10 mills on the dollar of assessed value. It does not include special benefits and debt service on obligations in connection therewith, nor that millage authorized in 8 and 10, Art. XII, State Const. I construe special benefits to be synonymous with "assessments for special benefits" as referred to in 7, Art. X, State Const. Therefore, millage imposed as an assessment for special benefits would not be included in calculating the aggregate ad valorem tax millage. These are sometimes referred to as special assessments as well as ~ssessments for special benefits. The distinction between a tax and a special assessment for special benefits thus becomes of substantial import in determining what constitutes the aggregate ad valorem tax millage referred to in section 1, Ch , Laws of Florida ( , F. S.). In Klemm v. Davenport, 100 Fla. 627, 129 So. 904, 70 A.L.R. 156, it is stated: A "tax" is an enforced burden or contribution imposed by sovereign right for the support of the government, the administration of the law, and to execute the various functions the sovereign is called on to perform. A "special assessment" is like a tax in that it is an enforced contribution from the property owner, it may possess other points of similarity to a tax, but it is inherently different and governed by entirely different principles. It is intposed upon the theory that that portion of the community which is required to bear it receives some special or peculiar benefit in the enhancement of value of the property against which it is imposed as a result of the improvement made with the proceeds of the special assessment. It is limited to the property benefited, is not governed by uniformity, and may be determined legislatively or judicially. Cooley on Taxation (3d Ed.) vol. 2, 1153; Words and Phrases Second Series, vol. 4, p. 625, and cases there cited. See also Whitney v. Hillsborough County (Fla.) 127 So. 486; Atlantic Coast Line R. Co. v. Lakeland (Fla.) 115 So. 669, text 683. (Emphasis supplied.) Also see Illinois Cent. R. Co. v. City of Decatur, 147 U.S. 190, 13 Sup. Ct. 293, 37 L. Ed Questions will no doubt arise as to the nature of the imposition imposed by certain districts which have taxing power. Generally, these will have to be considered individually adhering to certain guidelines which have been established by the courts. In this respect I refer you to the Klemm case, supra, and Bair v. Central and Southern Florida Flood Control District, 144 So.2d 818, which states at p. 820 in part:
3 306 BIENNIAL REPORT OF THE ATTORNEY GENERAL The imposition of a levy uniformly throughout the district necessarily and, we think, properly upon this record implies a finding of benefits accruing in some fashion either direct or indirect to all real property located therein, and the cited cases clearly control the question of valid relationship between such benefits and the levy on the particular parcels here involved, more properly characterized as an ad valorem tax for special purposes rather than a special assessment on an ad valorem basis: "For a general, common, public benefit to a taxing unit as a whole, lands in the taxing unit may be reasonably assessed [on an ad valorem basis] by legislative authority, even though the lands as such are not immediately or directly benefited by the public improvement, when the assessment is not an abuse of authority." Also see St. Lucie County-Fort Pierce Fire Prevention and Control Districtv. Higgs, Fla., 141 So.2d 744, which states at p. 746 in part: We agree with the learned circuit judge that the levy is a tax and not a special assessment for the reason he gave, namely, that no parcel of land was specially or peculiarly benefited in proportion to its value, but that the tax was a general one on all property in the district for the benefit of all... To be legal, special assessments must be directly proportionate to the benefits to the property upon which they are levied and this may not be inferred from a situation where all property in a district is assessed for the benefit of the whole on the theory that individual parcels are peculiarly benefited in the ratio that the assessed value of each bears to the total value of all property in the district... (Emphasis supplied.) For further reference see Martin v. Dade Muck Land Co., 116 So. 449, which involved the Everglades Drainage District; State v. Anna Maria Island Erosion Prevention Dist. 58 So.2d 845, which stated in part: It is therefore our opinion that the legislature was authorized to create Anna Maria Island Erosion Control Prevention District, that no provision of the constitution was violated in so doing, that it was for a proper public purpose and that the Board of County Commissioners of Manatee County was authorized to issue the bonds and imposed an ad valorem tax sufficient to retire them as they mature. (Emphasis supplied.) Also see Miller v. Ryan, 54 So.2d 60, which involved advertising tax districts; State v. Dreka, 185 So. 616, which involved the Daytona Beach Special Road and Bridge District, the Halifax Hospital District, and the Halifax Special Road and Bridge District; Crowder v. Phillips, 146 Fla. 70, 1 So.2d 629; and State v. Southeastern Palm Bch. County Hosp. Dist., 90 So.2d 809. District is defined in section 3, Ch , Laws of Florida ( , F. S.), as follows: The term "district" is defined to mean special districts having the power to levy taxes or require the levy of taxes, including but not limited to boards, commissions, authorities and agencies having authority to levy taxes or require the levy of taxes but shall not include special school districts nor any multi-county districts. (Emphasis supplied.)
4 BIENNIAL REPORT OF THE ATTORNEY GENERAL 307 This section is extremely broad excluding only special school districts and multicounty districts. Thus the aggregate tax millage limitation of 10 mills includes both the counties and districts as defined in the act. That is, both combined cannot exceed 10 mills except as provided in section 2 and referred to in section 4 of said act ( and , F. S.). This conclusion is buttressed by certain language found in section 5 ( , F. S.), which allows those cities and counties which now or hereafter provide both municipal and county services to levy for county, district and municipal purposes a millage up to 20 mills on the dollar of assessed valuation. Also see section 7, Ch , Laws of Florida ( , F. S.), in which the legislature expresses itself on the subject of ad valorem taxation. This same legislative intent is emphasized in the preamble to said act wherein the legislature stated: WHEREAS, the legislature in compliance therewith and in the exercise of its authority desires to limit the overall millage that may be levied for county and district purposes to a specified millage unless a greater amount is approved at an election by the taxpayers,'... (Emphasis supplied.) Section 4 of said act ( (1), F. S.), provides in part: Any county whose rate of taxation as defined in section 1 exceeds ten (10) mills at the effective date of this act shall be authorized to continue at such greater rate of taxation until January 1, 1970 without the referendum provided for in section 2. However, no increase beyond that rate shall be permissible except through a referendum as provided for in section 2. (Emphasis supplied.) Hillsborough County, being a county having a millage in excess of 10 mills, would be within the purview of this section. Chapter , Laws of Florida, contains a general repealing clause which is found in s'ection 9. However, it is clear that Ch , was not intended to repeal in total and , F. S., since these sections are referred to in section 1 (1) and section 5, Ch , Laws of Florida ( (1), , F. S.). Section 5, Ch , Laws of Florida ( , F. S.), provides where material: Nothing contained herein shall be construed to conflict with nor repeal sections and , Florida Statutes, provided however, the provisions of section , Florida Statutes, shall not prevent an increase of millage approved in section 2 hereof... (Emphasis supplied.) In 82 C.J.S., pp , it is pointed out that repeal by implication is not favored and that a later act will only be held to repeal a prior act where they are clearly repugnant. Both and , F. S., and Ch , Laws of Florida, deal with the subject of millage limitation. Chapter , Laws of Florida, is the later word of the legislature. Section 4, Ch , Laws of Florida ( , F. S.), is clear in providing that as to counties whose rate of taxation exceeds 10 mills at the effective date of this act, such counties may not increase their millage except through a referendum as provided for in section 2, Ch , Laws of Florida ( , F. S.). Thus the procedure for increasing the millage is repugnant to the procedure outlined in and , F. S., and to the extent of such repugnance the later ex :,:.;j " I'
5 308 BIENNIAL REPORT OF THE ATTORNEY GENERAL pression of the legislature, Ch , Laws of Florida, must prevail. This conclusion is consistent with the legislative intent found in the title to said act wherein the legislature expressed itself as to its desire to limit the overall millage that may be levied for county and district purposes to a specific millage unless a greater amount is approved at an election by the taxpayers. Similarly section 4, Ch , Laws of Florida ( , F. S.), authorizes such counties to continue at their present rate until Jan. 1, No reference is made to the allowance of increases beyond their present rate by any procedure or manner referred to in and , F. S. The only procedure referred to for increasing the millage beyond that rate is through a referendum as provided for in section 2 of Ch , Laws of Florida ( , F. S.). The legislature in positive language speaks in terms only of continuing at the present rate until Jan. 1, Thus any increase beyond the present rate for those counties whose present rate is in excess of 10 mills can only be accomplished by referendum as provided in section 2, Ch , Laws of Florida ( , F. S.). Therefore, Hillsborough County can only increase its millage through the procedure outlined in section 2, Ch , Laws of Florida ( , F. S.). Section 2, Ch , Laws of Florida ( , F. S.), refers to such elections being called by the governing body of any such county or district. This clearly indicates that where said district within the county, where there is presently a millage in excess of 10 mills, desires to increase the millage, it must follow the procedure set forth in section 2, Ch , Laws of Florida. These conclusions are consistent with the obvious legislative intent expressed in Ch Laws of Florida ( , F. S.), and Ch , Laws of Florida ( , F. S.), of imposing a definite millage maximum on ad valorem taxation. Any counties presently levying in excess of 10 mills are allowed until Jan. 1, 1970, to reduce their millage to the required 10 mills July 23, 1968 TAXATION MILLAGE--LIMITATION, MUNICIPALITIES--CONSTRUCTION OF , F. S., EFFECT THEREOF UPON , F. S. To: Thomas A. Thomas, Attorney, Hollywood QUESTION: Can the City of Hollywood increase its millage by 14% in order to obtain sufficient revenue from ad valorem taxes to meet its anticipated obligations? You are concerned over the authority of the City of Hollywood to increase its millage by 14% and over what procedure should be followed for the City of Hollywood to obtain such an increase. Your question requires an analysis of Ch , Laws of Florida ( , F. S.). It then requires a construction of Ch , Laws of Florida, and the effect, if any, it has on and , F. S. Section 1, Ch , Laws of Florida ( , F. S.), expresses an intent to limit the millage applied by municipalities on the assessed
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