72.38 75.06 history. annotation. history. · annotation. see note to the foregoing section.-ed....

1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941 § 76.32

§ 72.38 HISTORY.

Comp. § 7, ch. 23891, 1947.

§ 72.39 HISTORY.

Comp. § 8, ch. 23891, 1947.

ANNOTATION.

Chapter 73

Eminent Domain

§ 73.10

Applied in Meyers v. City of Dayt.:ma Beach, 158 Fla. 859, 30 So. (2d) 354.

CHAPTER 75.

Validation of Bonds; Procedure.

§ 75.01 ANNOTATION.

Applied in Prescott v. Board of Public Instruction, (Fla.), 32 So. (2d) 731.

Stated in State v. Sarasota, 154 Fla. 250, 17 So. (2d) 109.

§ 75.05 HISTORY.

Am. § 1, ch. 22623, 1945.

ANNOTATION. In generaL-

This section does not use the word "immediately upon," and any careful circuit judge would want to take enough time to read the petition and satisfy himself that the jurisdiction of his court had been properly invoked by the petitioner before preparing and entering an order for notice and to show cause under this section. State v. Sarasota, 154 Fla. 250, 17 So. (2d) 109.

Section should receive reasonable interpretation. A reasonable interpretation of the language

of this statute should be accorded by the courts. State v. Sarasota, 154 Fla. 250, 17 So. (2d) 109.

It is remediaL-Statutory proceedings for the validation of

bonds are remedial in their nature and must in substance be in compliance with the statutory requirements. State v. Sarasota, 154 Fla. 250, 17 So. (2d) 109.

In proceedings for validating the issuance of certain refunding bonds by the City of Sarasota, the jurisdiction of the court was invoked by the filing of the petition and jurisdiction of the parties was subsequently obtained by compliance ·with the provisions of this section, and § 75.06. A second order was made necessary because of irregularity in publication notice. The court properly vacated first order and entered second order without requiring petitioner to file new petition. State v. Sarasota, 154 Fla. 250, 17 So. C2d) 109.

§ 75.06 HISTORY.

Am. § 1, ch. 22623, 1945.

ANNOTATION. Court may correct its ot·ders.-

It is well settled that courts of general jurisdiction have authority to correct their orders, judgments and decrees during the term at which they were rendered, or before they have become final and absolute under the statute. State v. Sarasota, 154 Fla. 250, 17 So. C2d) 109.

§ 75.06-1 HISTORY.

Comp. § 2, ch. 22623, 1945.


I. GENERALLY.

Quoted in part in State v. Sarasota, 154 Fla. 250, 17 So. C2d) 109.

II. MATTERS CONSIDERED AND ADJUDICATED.

Validation of bonds.-Objections to proposed validation of bonds

that the attempt of a taxing unit to validate a contract with a bond agent was an abuse of discretion on the part of the city commission, that it was indefinite and, in fact, was prohibited by the city charter, could not be entertained. Renicks v. Lake Worth, 154 Fla. 694, 18 So. C2d) 769.

In a proceeding to validate municipal bonds, an independent arrangement between the issuing body and a refunding agency not made a part or condition of the obligation to the bondholders could not be collaterally attacked. Id.


Applied in Prescott v. Board of Public Instruction, (Fla.), 32 So. (2d) 731.

Cited in Cates v. Heffernan, 154 Fla. 422, 18 So. C2d) 11.

ANNOTATION.

CHAPTER 76.

Attachments.

§ 76.20

Applied in Bloch v. Frick, 152 Fla. 554, 12 So. (2d) 604.

§ 76.23 HISTORY.

Repealed by § 6, ch. 22000, 1943; see ch. 48.

§ 76.32 HISTORY.

Comp. § 1, ch. 23137, 1945.

[51]

§ 76.33 1947 CUMULATIVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941

§ 76.33 HISTORY.

Comp. § 2, ch. 23137, 1945.

§ 76.34 HISTORY.

Comp. § 3, ch. 23137, 1945.

§ 76.35 HISTORY.

Comp. § 4, ch. 23137, 1945.

§ 76.36 HISTORY.

Comp. § 5, ch. 23137, 1945.

§ 76.37 HISTORY.

Comp. § 6, ch. 23137, 1945.

§ 76.38 HISTORY.

Comp. § 7, ch. 23137, 1945.

ANNOTATION.

CHAPTER 77.

Garnishment.

§ 77.03

Statutes regulating writs of garnishment be.fore and after judgment must be strictly complied with. Robinson v. Robinson, 154 Fla. 464, 18 So. (2d) 29.


Cited in Robinson v. Robinson, 154 Fla. 464, 18 So. (2d) 29; In re Demountable House Corp., 58 F. Supp. 955.

§ 77.25 HISTORY.

Repealed by § 6, ch. 22000, 1943; see ch. 48.

§ 77.28 HISTORY.

Comp. ~ 1, ch. 21772, 1943.

CHAPTER 78.

Replevin.


Where petitioner a stranger.-Replevin would lie where sheriff held property by virtue of an execution issued to satisfy a judgment in a case wherein petitioner was a stranger. Bloch v. Frick, 152 Fla. 554, 12 So. (2d) 604.


Legislative intent.-The legislature contemplated that replevin would lie when property was held under process except in certain enumerated instances. Bloch v. Frick, 152 Fla. 554, 12 So. (2d) 604.

ANNOTATION.

CHAPTER 79.

Habeas Corpus.

§ 79.01

Cross reference.-As to charge of crime, see § 79.08.

Writ is designed to give immediate relief from unlawful imprisonment.-The writ of habeas corpus in a high prerogative writ o! ancient origin designed to obtain immediate relief from unlawful imprisonment without sufficient legal l'easons. Essentially, it is a writ of inquiry and is issued to test the reasons or grounds of restraint and detention. Allison v. Baker, 152 Fla. 274, 11 So. (2d) 578, 579.

Where issuance of writ would be futile.Where petitioner, under an indictment charging murder in the first degree, alleged that his unlawful detention consisted largely of a denial of the right to bail, it was held that since petitioner was being confined in the state prison under a judgment and sentence and had only served one year of a fifteen-year sentence when the petition for the writ was presented in the lower court, the issuance of the writ of habeas corpus would be futile. Allison v. Baker, 152 Fla. 274, 11 So. (2d) 578, 579. See McNally v. Hill, 293 U. S. 131, 55 S. Ct. 24, 79 L. Ed. 238.


Cited in Allison v. Baker, 152 Fla. 274, 11 So. (2d) 578.






Cited in All1son v. Baker, 152 Fla. 274, 11 So. (2d) 578.


Findings of trial judge not lightly disturbed.In contempt proceedings, determination of the facts and inferences to be drawn therefrom are

[52]


necessarily left to the decision of the trial judge, and his conclusions as to the acts done and as to their contemptuous character or effect will not be lightly disturbed by this court on habeas corpus-nor will the findings of the judge ordinarily b~ · set aside when reasonably supported by the facts appearing of record. State v. SulliVan, 157 Fla. 496, 26 So. (2d.) 509.


• § 79.07 ANNOTATION.


ANNOTATION. Rule stated.-

§ 79.08

Habeas Corpus may be invoked to secure release of a person from imprisonment if the act of which he stands convicted is not in law a crime. Ex parte Stirrup, 155 Fla. 173, 19 So. (2d) 712.

Does not cover defective allegations.-A petitioner is not entitled to release if the

charge be merely defective in its allegations; it must wholly fail to state any offense under the laws of the state. Ex parte Stirrup, 155 Fla. 173, 19 So. <2d) 712.

But where the indictment or information wholly fails to charge any offense under the law, the petitioner will be entitled to discharge on habeas corpus, even though he may have voluntarily entered a plea of guilty to the charge. Id.

Though a plea of guilty is a confession of guilt of the highest order and authorizes the imposition of the sentence prescribed by law as upon a verdict of guilty, such plea admits only the acts charged, and does not preclude the defendant from claiming that such facts charged do not constitute a crime. Id.






§ 79.11 ANNOTATION. Scope and operation.-

This statute vests in the judge hearing the cause the authority to allow or grant writs of error to the Supreme Court. State v. Quigg, 154 Fla. 348, 17 So. <2d) 697.

While the Supreme Court has continued to entertain writs of error when properly applied for and allowed by the circuit court, as a means of invoking appellate review of judgments in habeas corpus proceedings, the method of review by appeal is more simple and expeditious, and can be availed of when allowed by the judge hearing the cause as provided by this section. I d.

Issuance of writ.-see also State v. Brister, 158 Fla. 662, 29 So. (2d) 699.

Cited in Allison v. Baker, 152 Fla. 274, 11 So . (2d) 578.



Chapter 80

Quo Warranto and Prohibition.

§ 80.01 Applied in State v. Wiseheart, 158 Fla. 267, 28

So. (2d ) 589.


As to distinction between prohibition and certiorari see Lorenzo v. Murphy, (Fla.), 32 So. (2d) 421.

ln •Loreawo v. Murphy, (Fla.), 32 So. (2d.) 421, the court said, in quoting from Peacock v. Miller, 123 Fla. 97, 166 So. 212, "Prohibition does not lie to prevent or correct commission of err01rs on part .of court that is proceeding within i-ts jurisdiction."

CHAPTER 81.

Justice of Peace Courts; Procedure.

§ 81.01 HISTORY.

Am. § 7, ch. 22858, 1945.


A justice of the peace is entitled, in his discretion, to allow sheriff to serve process in ordinary justice court cases, although the constable of the justice district is not disqualified and is able to perform his duties, except in cases where the justice acts in capacity of coroner. State v. Duckworth, 153 Fla. 739, 15 So. (2d) 668, 669.


The itemized statement in writing of plaintiff's claim against defendant verified by affidavit is the declaration required in cases coming within the purview of this section in the justice of the peace court. State v. Poindexter'

[53]

§ 81.26 1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941

& Sons Merchandise Co., 149 Fla. 765, 7 So. (2d) 452, 454.


This section relates to compensation for ministerial functions of the justices of the peace and not for judicial functions. State v. Fussell, 157 Fla. 55, 24 So. (2dl 804.

CHAPTER 82.

Forcible Entry and Unlawful Detainer.


Entry lawful where key is delivered by agent. -In Caplan v. Burns, 149 Fla. 429, 6 So. (2d) 8, 9, defendant was put into possession by plaintiff's agent Cby means of delivery of a key to residence in question) and therefore her entry was lawful, and did not violate this section.


It was the intention of the legislature that the form for the petition under this section be "substantially" followed in order to allow slight departures from the words of the statutory forms by reason of the circumstances of the particular case. Kennedy v. DeLong, 157 Fla. 15, 24 So. (2d) 703.


See note to the foregoing section.-Ed. note.


Cited in Kennedy v. DeLong, 157 Fla. 15, 24 So. (2d) 703.


The mortgagor defaulted on payment of notes secured by a mortgage and the mortgagee took possession, instituting suit to foreclose the purchase money mortgage. The evidence, though conflicting, sustained the finding of both the master and the court that the detention was not "willful and knowingly wrongful" so as to entitle the mortgagor to an allowance of double the rental value on the mortgage for the period in which the mortgagee was in possession. Hall v. Adams, 155 Fla. 1, 19 So. C2d) 412.


It was the intention of the legislature that the form for the verdict under this section be "substantially" followed in order to allow slight departures from the words of the statutory forms by reason of the circumstances of the particular case. Kennedy v. DeLong, 157 Fla. 15, 24 So. (2d) 703.

CHAPTER 83.

Landlord and Tenant.


Cited in Richart v. Roper, 156 Fla. 822, 25 So. (2d) !80; Kubie v. Williams, (Fla.), 31 So. (2dl 44.


Summary proceedings provided for speedy relief.-Landlord and tenant or distress proceedings as provided by this and the fQllowing sections are summary in nature and were provided for the purpose of giving a landlord speedy relief where (1) the tenant defaults in payment of rent under his contract, or (2) where he stays on and refuses to vacate the premises after the expiration of his rental contract. Dade Realty Corp. v. Schoenthal, 149 Fla. 674, 6 So. (2d) 845, 846.


Personal ~rvice not necessary.-It was not necessary that tenant be served personally with process in the distress proceeding. The statute provides that service may be made by delivery of a true copy to the tenant or "if [he] be absent from his last or usual place of residence, by leaving a copy thereof at such place." In Dade Realty Corp. v. Schoenthal, 149 Fla. 674, 6 So. C2d) 845, 846, all other defendants were served; tenant knew that the rent was due and since that was the sole issue, the service was sufficient. Any other interpretation would render that statute of no avail.

§ 83.22 HISTORY.

Am. § 1, ch. 22731, 1945.

ANNOTATION. Applied in I.Jooen~o v. Murphy, CF1a.), 32 So.

(2d) 421.


The filing of a motion for a new trial tolls the time fixed in this section within which warrant of possession is 11equired to issue. Kubi·e v. Earlsbad Corp., 158 Fla. 390, 28 So. (2d) 686.


The provisions of this section were made applicable to proceedings when instituted in civil courts of record since such courts were given concurrent jurisdiction with county judges' courts by § 33.14. Wiesen v. Schatzberg, 157 Fla. 375, 26 So. C2d) 62.

Appeals.-The provisions of this section do not authorize a.ppOO!l from ordJeJ.is grom:ting new trial and certior.a,ri will not lie to review such orders

[54]


because they do not constitute a final judgment. Kubie v. Karls bad Corp., 158 Fla. 390, 28 So. (2d) 686.

This section governs appeals from orders made on motions f-or new trial and it limits the privilege of appeal to review orders denying new trial. This is done so that the losing party will not lose his privilege of review by filing motion f.or new trial and in effect the result is the review of the final judgment. Kubie v. Williams, (Fla.), 31 So. (2d) 44.

A casual reading of this statute will reveal that it was designed to cut off any other means of review except by appeal to the circuit court in the manner provided. If the statute is harsh, the remedy is with the legislature. Dade Realty Corp. v. Schoenthal, 149 Fla. 674, 6 So. (2d) 845, 846.

Cited in Cates v. Heffernan, 154 Fla. 422, 18 So. (2d) 11.

§ 83.29 HISTORY.

Am. § 2, ch. 22731, 1945.


Cited in Cates v. Heffernan, 154 Fla. 422, 18 So. (2d) 11.

CHAPTER 84.

Mechanics' Lien Law.

ANNOTATION. § 84.01

Cited in Budd v. Gooch Co., 151 Fla. 262, 9 so. (2d) 633.

§ 84.02 . ANNOTATION.

See annotation to § 84.04.


If the owner was to obligate its property to the lien of the act, certainly some instrument in writing should have been prepared and signed. Masterbilt Corp. v. Ryan Motors, 149 Fla. 644, 6 So. (2d) 818, 820, wherein the owner simply examined the plans and specifications as prepared by the architect and granted its formal approval. It was held that the consent of the owner for the improvements according to the plans did not confer on or grant the authority to do the work.

§ 84.04 I. GENERAL CONSIDERATION.

ANNOTATION. Necessity for notice.-If it is desired to create

a lien on the property as against the owner, notice to the owner is necessary in accordance with the several provisions of this section in

the absence of a contract between the contractor and the owner. Masterbilt Corp. v. Ryan Motors, 149 Fla. 644, 6 So. (2d) 818, 820.

Substantia.~ compliance is necessa.ry.-A mechanic's or materialmen's lien is statutory and before a person may have such a lien, it is necessary that there be a substantial compliance with the several statutory provisions. MasterbUt Corp. v. Ryan Motors, 149 Fla. 644, 6 So. (2d) 818, 820.

Applied, as to subsection (3), in Shad v. Arnow, 155 Fla. 164, 19 So. (2d) 612.

V. STATEMENT OF CONTRACTOR AS TO AMOUNTS PAID OR DUE.

Failure to comply with statute precludes remedy afforded thereby.-Subsection (3) of this section does not cancel the debt, if any, owed by the owner of a building to the contractor, but merely precludes the contractor enforcing the obligation until the proof of payment of bills has been furnished, as provided by the statute. Howland v. Gore, 152 Fla. 781, 13 So. (2d ) 303, 307.

And bill should be dismissed if statement not alleged and proved.-In an action to foreclose a mechanic's lien it was held that the bill should be dismissed because plaintiff has failed to allege and prove that the contractor had given the owner a sworn statement as required by subsection (3) of this section as to full payment of the claims of sub-contractors and of the employees of the contractor. or a statement setting forth the name of the persons not so paid and the amount due each of them. Howland v. Gore, 152 Fla. 781, 13 So. (2d) 303, 307.

But contractor is not relieved from compliance with statute by provision in contract.-A provision in a building contract that "before issuance of final certificate the contractor shall submit evidence satisfactory to the architect that all pay rolls, material bills and other indebtedness connected with the work h ave been paid," was held not to relieve contractor from complying with the provisions of subsection (3) of this section, because it was not clearly made to appear that such was the intention of the parties. Howland v. Gore, 152 Fla. 781, 13 So. (2d) 303, 307.

§ 84.22 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 84.23 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 84.29 HISTORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. Where certain contractors , materialmen and

laborers engaged by owners to erect a building

[ 55 ]


executed a subordination agreement in which it was recited that application had been made for a loan, and stipulated that the signers for the purpose of inducing the bank to make the loan released, waived and subordinated "all rights, claims, demands and liens of whatsoever nature" which they might then have or acquire "by virtue of the labor and materials furnished and to be furnished in connection with the construction of said building" to the lien of the mortgage, it was held that the chancellor's decree giving priority to the bank's mortgage over the liens of the contractors, materialmen and laborers should be affirmed without prejudice to their right to an adjudication of their claims to any surplus after satisfaction of the bank's mortgage or to application for entry of personal judgments against the owners. Johnson v. Florida Bank, 153 Fla. 120, 13 So. (2d) 799, 800.

Cited in Shad v. Arnow, 155 Fla. 164, 19 So. (2d) 612.





CHAPTER 85.

Statutory Liens.


See annotation under § 85.11.

. § 85.11 ANNOTATION.

Lien can be had on vessel of foreign registry. -Where a vessel was registered with the collector of the port of New York, while Florida w.as the actual residence of the owner, and all the obligations dealt with in the proceeding were contracted in the state of Florida, it was held that the master had a lien for his wages under this section and § 85.01. The Diane, 45 F. Supp. 510, 511.

Order of claims against vessel where section not complied with.-Where a vessel was libeled it was held that evidence established claims to rank as follows: (1) The claims for seaman's wages, a maritime lien; (2) Claims for repairs and supplies, general maritime liens; (3) Claim of captain for wages and .advances, a lien created by state statute; and (4) Claims of two mortgagees, not perfected in accordance with the provisions of this section. The Diane, 45 F'. Supp. 510, 512.

§ 85.17 HISTORY.

Am. § 7, ch. 22858, 1945.


Stated in part in Howard v. Calhoun, 155 Fla. 689, 21 So. (2d) 361.


Stated in part in Howard v. Calhoun, 155 Fla. 689, 21 So. (2d) 361.

CHAPTER 86.

Enforcement of Statutory Liens.

§ 86.01 Dower right considered with section.-Where

a judgment was secured and satisfied against the husband before his death, the widow's right of dower is in pari materia with and must be read in connection with this chapter. In re Hester's. Estate, 158· Fla. 170, 28 So. (2d) 164.


Stated in part in Howard v. Calhoun, 155 Fla. 689, 21 So. <2d) 361.


Cited in dissenting opinion in Blanton v. State, 156 Fla. 694, 24 So. (2d) 232.

CHAPTER 87.

Declaratory Decrees, Judgments and Orders.

§ 87.01 HISTORY .

Comp. § 1, ch. 21820, 1943.

ANNOTATION. Editor's note.-This chapter enlarges the

scope of substantive and remedial remedies over its predecessor § 62.09. Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. (2d) 808. Some of the cases treated below construed § 62.09 and must be read and considered in the light of this fact.

This chapter is nothing more than a legislative attempt to extend procedural remedies to comprehend relief in cases where technical or social advances have tended to obscure or place in doubt one's rights, immunities, status or privileges. It should be construed with this objective in view. but it should not be permitted to foster frivolous or useless litigation to answer abstract questions, to satisfy idle curiosity, go on a fishing expedition or to give judgments that serve no useful purpose. It should be construed to aid those who have a meritorious cause rather than provide a way of escape for those who

[56]


would be adversely affected. Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. (2d) 808; see also Watson v. Centro Espanol De ':Dampa, 158 Fla. 796, 30 So. (2d) 288.

.Jurisdiction and discretion of court.-The circuit courts are not only clothed with jurisdiction to hear and enter declaratory decrees as required by this chapter, but they are also clothed with discretion to determine whether or not the moving party states a case sufficient to motivate jurisdiction as measured by the test of whether or not the moving party shows that he is in doubt as to the existence or nonexistence of some right, status, immunity, power or privilege that he is entitled to have such doubt removed and if shown to be existent, seek such relief as the circumstances warrant. Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. (2d) 808.

Where lease required tenant to erect, within 90 days, a plant of certain capacity but provided no penalty or forfeiture, and a plant of less capacity · was constructed, landlord's assignee, who purchased with knowledge that landlord had accepted rentals for over six years, was not entitled to declaratory decree requiring tenant to enlarge plant and imposing penalty for failure to do so, where no damage from breach of lease was shown. Id.

Some bona fide interest must appear.-Before a party may secure a declaration of rights under this section, it must appear that the question raised is real and not theoretical, and that the party raising it has a bona fide and direct interest in the result. Miami Water Works Local No. 654 v. Miami, 157 Fla. 445, 26 So. (2d) 194.

Under § 62.09 it was not necessary that there be an "actual controversy" before an equity court may take jurisdiction of a suit to construe a deed, will, contract in writing, or other instrument in writing, ahd declare the rights of persons interested thereunder but if the question raised in such suit is real and not theoretical, the person raising it has a bona fide interest under the writing, and there is a defender or defenders with a bona fide right to defend, the court which the suit is brought will not be held in error in assuming jurisdiction and rendering a declaratory judgment, even though there be no "actual controversy." Sample v. Ward, 156 Fla. 210, 23 So. (2d) 81.

Scope of chapter.-This chapter contemplates the adjudication of the rights, status and other equitable or legal relations existing between the parties by reason of the contm.ct relied upon and also that after this has been determined the court may proceed, pursuant to proper pleading in thrut regard, to grant such relief as may be proper pursuant to a judgment fixing the status of the parties under the contr.act. Fraser v. Cohelll, <Fla.), 31 So. (2d) 463.

Chapter held constitutional in Fra.ser v. Cohen, (Fla.), 31 So. (2d) 463.

The provisions of this chapter do not modify the provisions of §63.31. Americ•aill F·ederation of Labor v. Watson, <Fla.), 31 So. (2d.) 394.

Prior law, see Cone v. Benjamin, 157 Fla. 800, 27 So. (2d) 90; Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. (2d) 808.

Applied in p ,a,lm Tavern v. American Soc., etc., 153 Fla. 544, 15 So. (2d) 191; Ball v. Branch, 154 Fla. 57, 16 So. (2d) 524; Alsop v. Pierce, 155 Fla. 1'1!5, 19 So. (2d) 799; State v. Everglades Drainage Dist., 155 Fla. 403, 20 So. (2d) 397; State v. Broward Drainage Dist., 155 Fla. 407, 20 So. (2d) 399; State v. Lake Worth Drainage Dist., 155 Fla. 408, 20 So. (2d) 399; Rona1d v. Ryan, 157 Fla. 470, 26 So. (2d) 339; Satan Fraternity v. Board of Public Instruction, 156 Fla. 222, 22 So. (2d) 892; Miami v. Kichinko, 156 Fla. 128, 22 So. (2d) 627; V-olusia County v. Del-Air Corp., 157 Fla. 316, 25 So. (2d) 804; Fleming v. State Road Dept., 157 Fla. 164, 25• So. (2d) 376; Riley v. Doing, 66 F. Supp. 825; Caldwell v. North, 157 Fla. 52, 24 So. (2d) 806; Fowler v. Turner, 157 Fla. 529, 26 So. (2d) 792; Porter v. Baynard, 158 Fla. 294, 28 So. (2d) 890; City of Pensacola v. J.::~hnson, (Fla.), 28 So. (2d) 905; Efstathion v. Saucer, 158 Fla. 422, 29 So. (2d) 304; Larson v. Independent Life & Ace. Ins. Co., 158 Fla. 623. 29 So. (2d) 448; Smith v. Smith, 158 FLa. 628. 29 So. (2d) 629; Brown v. Foley, 158 Fla. 734, 29 So. (2d) 870; Chaikin v. City of Miami, 158 Fla~. 742, 30 So. (2d) 101; D'E&opo v. Spaith.is, <Fla.), 30 So. (2d) 742; Glackman v. City of Miami Beach, <Fla.), 31 S::~. (2d) 393; Quinerly v. DU!Ildee Corp., (Fla.>, 31 So. (2d) 533; State v. North, <Fla.), 32 So. (2d) 14; Asbell v. Green, (Fla.), 32 So. (2d) 593.

Cited in Cobb v. Board 01! Com'rs., 155 Fla. 60, 19 So. (2d) 505; American Federation of Labor v. Watson, 327 U. S. 582, 66 S. Ct. 761, 90 L. Ed. 873 (dis .. op.); Garden Suburbs Golf and Country Club v. Pruitt, 156 Fla. 825, 24 So. (2d> 898; Miami v. State, 158 Fla. 56, 27 So. (2d) 829; Snell v. State, 1518, Fla. 431, 28 So. (2d) 863.

§ 87.02 HISTORY.

Comp. § 2, ch. 21820, 1943.

ANNOTATION. Bill of complaint was properly dismissed when

bill failed to show that the defendants, or either of them, claimed or sought to claim, or might have any right to claim, any rights adverse to plaintiffs under the document of which construction was sought. Fleming v. State Road Dept., 157 Fla. 164, 25 So. <2d> 376.

Applied in Porter v. Baynard, 158 Fla. 294, 28 So. (2d) 890.

Cited in Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. (2d) 808.

§ 87.03 HISTORY.

Comp. § 3, ch. 21820, 1943.

ANNOTATION. Cited in Ready v. Safeway Rock Co., 157 Fla.

27, 24 So. (2d) 808.

[57]

~ 87.04 1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941

§ 87.04 HISTORY.

Comp. § 4, ch. 21820, 1943.

ANNOTATION. Applied in Porter v. Baynard, 158 Fla. 294,

28 So. (2d), 890.

Cited in Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. (2d) 808.

§ 87.05 HISTORY.

Comp. § 5, ch. 21820, 1943.

ANNOTATION. Cited in Ready v. Safeway Rock Co. , 157 Fla.

27, 24 So. (2d.) 808; Snell v. State, 158 Fla. 431, 28 So. (2d) 863.

§ 87.06 HISTORY.

Comp. § 6, ch. 21820, 1943.

§ 87.07 HISTORY.

Comp. § 7, ch. 21820, 1943.

ANNOTATION. Applied in Garden Suburbs Golf and Country

Club v. Pruitt, 156 Fla. 825, 24 So. (2d) 898.

§ 87.08 HISTORY.

Comp. §8, ch. 21820, 1943.

§ 87.09 HISTORY.

Comp. § 9, ch. 21820, 1943.

§ 87.10 HISTORY.

Comp. § 10, ch. 21820, 1943.

ANNOTATION. Quoted in part in Ready v. Safeway Rock Co.,

157 Fla. 27, 24 So. (2d) 808 (con op.) .

§ 87.11 HISTORY.

Camp. § 11, ch. 21820, 1943.

ANNOTATION. Quoted in part in Ready v. Safeway Rock Co.,

157 Fla. 27, 24 So. (2d) 808 (con op.).

§ 87.12 HISTORY.

Comp. § 12, ch. 21820, 1943.

ANNOTATION. Applied in D'Esopo v. Spathis, (Fla.), 30 So.

(2d) 742.

§ 87.13 HISTORY.

Comp. § 13, ch. 21820, 1943.

TITLE VII.

JUDICIAL PROOF.

CHAPTER 90.

Judicial Proof, Generally.

§ 90.01 HISTORY.

Am. § 1, ch. 23156, 1945. Am. § 7, ch. 24337, 1947.


I. GENERAL CONSIDERATION.

The purpose of this section is to maintain equality and discourage false swearing. Lorenz v. Lorenz, 157 Fla. 402, 26 So. (2d) 54.

It is applicable in divorce suits. Lorenz v. Lorenz, 157 Fla. 402, 26 So. (2d) 54.

Extent of prohibition.-The prohibition contained in this section only applies in suits or actions where the claim is against the executor or administrator, heir at law, next of kin, assignee, legatee, devisee or survivors of the de-ceased person and, therefore, only applies to cases where the rights of the deceased at the time of his death are involved. Helms v. First Nat. Bank, 158 Fla. 168, 28 So. (2d) 262.

Under this section a party to a cause may be a witness in his own behalf and as such witness is subject to all rules and regulations applying to any other witness and is likewise entitled to all privileges and rights which may be invoked by any other witness. Storm v. Houghton, 156 Fla. 793, 24 So. (2d) 519.

Laches.-Where death has sealed the lips of one of the

parties to a transaction and the statute precludes the debtor from testifying with respect to "any transaction or communication" between him and the decedent, the doctrine of laches is particularly subject to invocation. Florida Nat. Bank v. Gardner, 154 Fla. 801, 19 So. (2d) 5.

Applied in McClish v. Rankin, 153 Fla. 324, 14 So. (2d) 714, wherein the inhibition of the statute was waived.

Cited in Bowen v. Keen, 154 Fla. 161, 17 So. (2d) 706; Cone v. Benjamin, 157 Fla. 800, 27 So. (2d) 90; United. States v. 240 Acres of Land, etc., 62 F. Supp. 914; Rams,ay v. United States, 72 F. Supp. 613.

II. TRANSACTIONS OR COMMUNICATIONS WITH PERSONS SINCE DECEASED

OR INSANE.

A. In General. Exception in section applies only to represen

tatives.-It is plain from a study of the entire statute that the exception in this section was designed to protect the interests of persons deceased or incompetent, and that it is only

[58]

·1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941 ·§ 90.17

appropriate to . suits· ·against parties in their representative capacities. McDougald v. Couey, 150 Fla. 748, 9 So. (2d) 187, 188.

Transactions with deceased officers of corporations not inhibited by section.-Testimony as to conversation between deceased officer of corporation and maker of note, in regard to nature of the note, was admissible in behalf of maker because the inhibitions of this section in. regard Ito testimony concerning transactions with deceased persons do not extend to transactions and conversations with deceased officers of corporations. Tharp v. Kitchell, 151 Fla. 226, 9 So. (2d) 457.

The testimony of disinterested third parties may be admitted in evidence to prove relevant declarations or admissions made by a person since deceased, as against any person claiming under or in succession to such deceased person. Jackson v. Parker, 153 Fla. 622, 15 So. (2d) 451, 459.

B. Interest. An interest simply in the question involved

:will not disqualify a witness under this section. :The interest must be such that he will gain or .lose directly thereby, or the testimony to be ·given must be such that the record in t):le suit may be used as legal evidence for or against the witness in some action to prove or disprove the matters testified to by him. Farrington v. Richardson, 153 Fla. 907, 16 So. (2d) 158.

E. Persons and Classes Protected. Certain enumerated classes of persons are protected.

The inhibitions of this section are restricted to transactions and conversations between. the deceased and (a) executor or administrator; (b) heir at law; (c) next of kin; (d) assignee; (e) legatee; (f) devisee; (g) or survivor of such deceased persons. It is to be observed that the legislature failed or omitted to extend these inhibitions to transactions and conversations with decea.Sed officers of corporations. Tharp v. Kitchell, 151 Fla. 226, 9 So. (2d) 457, 460.

G. Illustrative Cases Generally. Where mortgagor died after mortgagee's agent

took possession of mortgaged premises and prior t'o foreclosure suit witnesses may not testify as to transactions had with deceased mortgaior. Joyner v. Bernard, 153 Fla. 372, 14 So. (2d) 724.

Mortgagors' testimony, in suit to foreclose mortgage, by deceased mortgagees' heirs, that mortgagees made proposition to sell mortgaged property to them for sum payable in installment, secured by mortgage, with payments to stop upon death of mortgagees if payment had not been made in full, was held incompetent under this .section. Jackson v. :Parker, 153 Fla. 622, 15 So. (2d) 451.

Testimony of person injured in auto accident in which driver was killed.-Where plaintiff, who was injured in an automobile accident in which the driver to whom the car had been entrusted

was killed, brought suit against the owner of the car, this section did not .disqualify plaintiff and prevent him testifying as to whether he paid for his transportation. McDougald v. Couey, 150 Fla. 748, 9 So. (2d) 187, 188.

In a suit by the husband to recover for the joint services rendered by husband and wife, against the administrator of ·the estate of the decedent, the wife was not disqualified from testifying by reason of "interest" in regard to transactions between the Witness and decedent. Farrington v. Richardson, 153 Fla. 907·, 16 So. (2d) 158.

§ 90.08 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 90.09 ANNOTATION. Denial of right is reversible error.-

Where defendant was denied the right to lay a predicate for the impeachment of his ·own witness, when he had been .surprised by the adverse testimony of . the witness, the action constituted reversible error because it runs counter to this section. Henderson v. State, 155 Fla. 487, 20 So. (2d) · 649.

Witness must prove adver5e.-It never was the purpose of this section to allow a party to put up a witness for the purpose of endeavoring to get from him beneficial evidence, and upon his simple failure to testify to tlie desired facts, ' to permit him to get the benefit of those expected facts as substantive evidence through the mouth of another witness, under the guise of impeachment. Hernandez v. State, 156 Fla. 356, 22 So. (2d) 781.


Use of fictitious name to conceal material witness.-Where plaintiff concealed the name of a material witness in a cause by causing a witness subpoena to be issued to a fictitious person and then changing it to be directed to the real witness, it was held trial court ·properly exercised his discretion in granting a new trial. Allen v. Powell, 150 Fla. 402, 7 So. (2d) 465.

Witness not ·disqualified by failure to · subpoena.-The mere fact ·that a witness is not subpoenaed does not disqualify him as such or vitiate his testimony. Allen v. Powell, 150 Fla. 402, 7 So. (2dl . 465.


Compliance with section is necessa.ry.-If the right to interrogate the opposing party is not duly exercised in accordance with, and within the limitations of this section. as interpreted by the courts, the interrogatories should be eliminated by due procedure as being unauthorized by controlling law. Kilgore v. Bird, 150 Fla. 702, 8 So. (2d) 665, 669.

[ 59 ]


Limitations to right granted by section.-A right of one party to propound interrogatories to be answered by the other party in a pending action at law is not a part of the common law in force in this state. The statute confers that right; and while there are no express limitations of the right contained in the statute, there are implied limitations to conserve rights of the party interrogated and to secure orderly judicial procedure without abuses, to the end that the right may serve to appropriately expedite judicial proceedings without causing illegality, inJw;tice or confusion in trials. Kilgore v. Bird, 150 Fla. 702, 8 So. (2d> 665, 669.

Unauthorized interrogatories. Where it does not appear that answers by

defendant to the interrogatories are necessary to plaintiff's case, or that the evidence of material facts sought cannot readily be obtained from other sources in due course of orderly judicial examination of witnesses, then the apparent purpose of the interrogatories is not in accord with the intendments of this section, and the interrogatories should not be allowed. Kilgore v. Bird, 150 Fla. 702, 8 So. (2d) 665, 670.

Contempt for failure to file answers to interrogatories.-Plaintiff held in contempt for its failure to file answers to the interrogatories as required by this section. Palm Shores v. Nobles, 149 Fla. 103, 5 So. (2d> 52, 53.

Where justice of p~ had jurisdiction to require ~wer to interrogatories.-Alternative writ of prohibition in the justice of the peace court was held susceptible to demurrer where the record showed that the justice of the peace was not without jurisdiction to require the interrogatories to be answered, since any error he might commit in that regard would be subject to correction in appellate proceedings. State v. Poindexter & Sons Merchandise Co., 149 Fla. 765, 7 So. (2d> ~52, 454.

Statement of account verified under oath in cases in the justice of the peace court is the declaration and after · such declaration is filed plaintiff may pursue the course of suing out interrogatories as authorized by this section. State v. Poindexter & . Sons Merchandise Co., )49 !"la. 765, 7 So. (2d) 452, 454.

§ 90.23 HISTORY.

Comp. §§ 1-4, ch. 23896, 1947.

CHAPTER 91.

Depositions.


This chapter does not apply to proceedings before masters in chancery but only to the appoi.lltment of, and proceedings before. commis-

sioners. Kneale v. Williams, 158 Fla. 811, 30 So. (2d) 284.

§ 91.03 HISTORY.

Am. § 7, ch. 22858, 1945.


Cited in Kneale v. Williams, 158 Fla. 811, 30 So. (2d) 284.


A master in chancery under· the Law of the state of New Jersey w'.hen officiating in the taking of depooitions authorized by a law court of the strute of New Jersey is a commissioner within the purview of this section. Kneale v. Williams, 158 Fla. 811, 30 So. (2d) 284.


A master in chancery under the law of the state of New Jersey when officiating in the taking of depositions a.uthorized. by a law court of the state of New Jersey is a commissioner within the purview of this sec·tion. Kneale v. Williams, 158 Fla. 811, 30 So. (2d) 284.

§ 91.30 HISTORY.

Comp. §§ 1, 2, ch. 24041, 1947.

CHAPTER 92.

Evidence Other Than by Deposition.

§ 92.05 HISTORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. Admission of final decree in evidence to show

marriage of parties.-In General Properties Corp. v. Gore, 153 Fla. 236, 14 So. (2d> 411, 414, a final decree was admitted in evidence by the trial court, not for the purpose of showing that appellant was bound by it, but only for the consideration of the jury on the question of marriage between certain parties.


Cited in Sells v. Jones, 151 Fla. 38, 9 So. (2d) 160.


Applied in General Properties Corp. v. Gore, 153 Fla. 236, 14 So. (2d) 411, treated under § 92.05.

§ 92.16 HISTORY.

Am. § 7, ch. 22858, 1945. .

[ 60]



Applied in General Properties Corp. v. Gore, 153 Fla. 236, 14 So. (2d) 411, treated under § 92.05.

§ 92.22 ANNOTATION. Additional testimony after pleadings amended.-

Chancellor did not err in taking into consideration several hundred pages of testimony of the parties after the pleadings had been amended, where a decree in a creditor's bill was reversed on a prior appeal and cause remanded with directions to take additional testimony and amend pleadings. Hollingsworth v. Arcadia Citrus Growers Ass'n, 154 Fla. 399, 18 So. (2d) 159.

Reading testimony on retrial where witness is dead.-It was proper to read to jury on retrial the testimony of original plaintiff given on former trial, where original plaintiff died pending an appeal, although former trial involved issue of simple negligence while the retrial involved issue of gross negligence. McDougald v. Imler, 153 Fla. 619, 15 So. (2d) 418.

Cited in Luttrell v. State, 150 Fla. 809, 9 So. <2d) 93 (dis. ·op. of Thomas, J.).

HISTORY. § 92.30

Comp. § 1, ch. 22866, 1945.

§ 92.31 HISTORY.

Comp. § 2, ch. 22866, 1945.

§ 92.32 HISTORY.

Comp. § 3, ch. 22866, 1945.

TITLE VIII.

LIMITATIONS.

.CHAPTER 95.

Limitation of Actions; Adverse Possession.


A judgment is regarded as a cause of action or a chose in action, whether domestic or foreign, it constitutes a cause of action upon which a new and independent action may be based. Crane v. Nuta, 157 Fla. 613, 26 So. (2d) 670.

Cited in Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So. (2d) 234.


This Section was held inapplicable to delinquent drainage district taxes. Ideal Farms

Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So. <2d) 234.

Cited in Stuart v. Green, 156 Fla. 551, 23 So. (2d) 831.

ANNOTATION. Valid limitation.-

§ 95.03

This section, declaring limiting agreements contrary to Florida public policy, does not jus-· tify a Florida court in disregarding the limitation when asserted defensively in an action on a contract executed and to be performed in a state where the limitation is valid. Holderness v. Hamilton Fire Ins. Co., 54 F. Supp. 145, 147.

Invalid stipulation in life insurance policy.Stipulation in life insurance policy that no suit should be brought upon it after the lapse of six months "from the date of death of the insured," was held invalid und~r this section. Caruthers v. Peninsular Life Ins. Co., 150 Fla. 467, 7 So. (2d) 841, 842.


The effect of this section is that if the action is barred in the state where the cause of action arose, it is also barred here. Holderness v. Hamilton Fire Ins., Co., 54 F. Supp. 145.

Under this section, by the "laws" of another state is meant not only the statutory law, but also the "laws" established by judicial decision. (!d.)

§. 95.11 HISTORY.

Am. § 1, ch. 21892, 1943. Am. § 7, ch. 24337, 1947.


ANNOTATION. When statute begins to run.

Claim for services rendered by son to his mother previous to within three years of the mother's death, held not barred by limitations because the statute does not begin to run until the debt is due and in this case no money was due until after the mother's death. In re Shambow's Estate, 153 Fla. 762, 15 So . . (2d) 837 ..

When statute will run against state.-The statute of limitations will not ordinarily run against the state; yet where the action is to enforce a purely personal right, the statute will apply. General Properties Co. v. Rellim Inv. Co., 151 Fla. 136, 9 So. (2d) 295, 296.

Invalid provision in life insurance policy no bar to action.-In an action on a life insurance policy to recover for the death of insured, it was held that the company could not rely on an invalid provision in the policy to the effect that no suit should be brought upon it after the lapse of six months "from the date of death of the insured" as proof of the intention on the part of the insurer that the instrument

[ 61]


should not be one under seal justifying a suit within the period of twenty years. Caruthers v. Peninsular Life Ins. Go., 150 Fla. 467, 7 So. (2d) 841.

Where policy d~liberately executed under seal. -The statement at the conclusion of a life insurance contract to the effect that the "company has, by its president and secretary, signed and affixed the seal of the company," was held to show that affixing the seal w.as no afterthought but the deliberate act of the corporation clearly indicating the purpose of the corporation to place the policy in that category of contracts covered by subsection (1) of this section. Caruthers v. Peninsular Life Ins. Co., 150 Fla. 467, 7 So. (2d) 841, 842.

Section held not applicable to scire facias proceedings.-Lott v. Padgett, 153 Fla. 304, 14 So (2d) 667, discussed under § 55.15.

This Section was held inapplicable to delinquent drainage district taxes. Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So. <2d) 234.

Where a mortgage contains a personal covenant whereby the mortgagor unconditionally promises to pay the debt for which the mortgage has been given as security, an action at law may be maintained on the covenant within the period of limitations applicable to sealed instruments, even though an unsealed promissory note given in the same transaction as evidence of the indebtedness may be barred by a shorter period of limitations. Swanson v. Bennett, 157 Fla. 113, 25 So. <2d) 207.

Under subsection (5) a course of action "accrues" only after letters testamentary are approved and some person exists against whom suit can be brought. Berger v. Jackson, 156 Fla. 768, 23 So. (2d) 265.

Cited in Shambow v. Shambow, 149 Fla. 278, 5 So. (2d) 454; Gilpen v. Bower, 152 Fla. 733, 12 So. (2d) 884; Spurway v. Dyer, 48 F. Supp. 255; Baldwin Drainage Dist. v. MacClenny Turpentine Co., 154 Fla.. 525, 18 So. (2d) 792; as· to suhsection (1) in Cra.ne v. Nuta, 157 Fla. 613, 26 So. (2-d) 670; Anderson v. Carlton, 156 Fla. 170, 22 So. (2d) 874; subsections (3) and (5) in Hilpert v. Commissioner of Intern& Revenue, 151 F. (2d/) 929.

Applied, as to subsection (5) in Exchange Nat. Bank v. Smith <Fla.), 27 So. (2d) 291; subsection (4) in Ake v. Birnbaum, 156 Fla. 735, 25 So. (2d) 213, on rehearing; Plant City v. Scott, 148 F. (2d) 953; Tampa Leather Co. v. Smith, 156 Fla. 801, 24 So. (2d) 523.

II. TWENTY YEARS.

Negotiable no~ under seal are instruments under seal and such obligations are not outlawed in the state until after the lapse of twenty years. Goral Gables v. Skehan, 47 F. Supp. 1, 2.

The distinction between instruments under seal and those not under seal is substantial, for a seal dmparts authenticity and consideration,

and have a life of twenty years after default as compared with the five years of an instrument not under seal. Plant City v. Scott, 148 F. (2d) 953.

Applied in Pennsylvania Co., etc., v. Watt, 151 F. (2d) 697.

m. SEVEN YEARS.

Under subsection (2) of this section, a judgment or decree must be final, and not interlocutory, in order to support an action thereon. In using the words "final" and "interlocutory" in reference to a decree, care should be exercised, because a mere declaration that something that really is interlocutory is final does not make it final, and does not make that which is not interlocutory interlocutory. Irving Trust Co. v. Kaplan, 155 Fla. 120, 20 So. (2d) 351.

IV. FIVE YEARS.

In an acti!'n for money advanced to a city for extensions of water main and gas mains to be laid in the streets of an addition being laid out by plaintiff, with a covering agreement for the return of the money to plaintiff within one to three years from date, it was held that the action was not barred by the provisions of subsections (3), (4) and (5) of this section. Brownell v. St. Petersburg, 128 F. (2d) 721, 722.

Applied in Westervelt v. Istokpoga Consolidated Sub-Drain. Dist., 158 Fla. 214, 28 So. (2d) 859.

Cited· in Wicker v. Board of Public Inst·ruction, (Fla.), 31 So. (2d) 635.

V. FOUR YEARS.

An action for wrongfully and maliciously procuring governor to exercise his discretion and remove director of state beverage department was subject to four-year statute of limitations. Faulk v. Allen, 152 Fla. 413, 12 So. (2d) 109.

Action for personal injuries received by a passenger on vessel engaged in interstate journey while vessel was in Florida waters is governed by federal statute and does not fall within this subsection. Scheibel v. Agwilines, 156 F. (2d) 636.

VI. THREE YEARS.

A. In General. Does not conflict with § 95.02.-

It cannot be said that the Legislature intended to enact contradictory or repugnant legislation. Subsection (5) of this Section and § 95.02 are not repugnant to each other. These statutes were in force and effect when Chapter 6458, Laws of Florida, Acts of 1913, was enacted. Separate fields of operation can or may be given the two acts, and in so doing apparent conflicts therein immediately disappear. Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So. (2d) 234.

Paragraph (e) of this subsection is not applica.ble to a claim by chain drug store corporation for refund of gross receipts taxes paid on restaumnt department. Wrugreen Drug Stores Co. v. Lee, 15·81 Fla. 260•, 28 So. (2d) -535.

[ 62]


Applied i.!n Wicker v. Board of Public Instructi.on, <Fla.), 31 So. (2d) 635; Plant City v. Scott, 148 F. (2d) 953.

Cited on petition for rehearing in Ball v. Yates, 15'81 Fla. 521, 29 So. (2d) 729 ; Scott v. Scott, 158 Fla. 781, 30 So. (2d) 620 (dis. op.).

VII. TWO YEARS.

It is the intent of this section to limit the commencement of an action for wrongful death from the time of the accrual of plaintiff 's cause and !Plaintiff's cruuse accrues and the statute of limitations commences to run upon death. St. Francis Hospital v. Thompson, <FLa.), 31 So. (2d) 710.

Cited in Red Top Cab & Baggage Co. v. Dorner, <F1a.), 31 So. (2d) 409.

VIII. ONE YEAR.

This section is general and embraces any state laws on the statute books or which may hereafter be enacted, as well as the Federal Fair Labor Standards Act now on the statute books, as well as any future federal legislation respecting the payment of wages and overtime. Ott v. Freeman & Son, 68 F. Supp. 445.


Applied in Palmer v. Greene, (Fla.), 31 So. (2d) 706.

§ 95.16 HISTORY.

Am. § 1, ch. 22897, 1945.

ANNOTATION. Directed verdict . proper where evidence in

sufficient to show adverse possession.-Where the manifest weight and probative force of the evidence clearly requires a verdict for one party and the evidence is legally insufficient to support a verdict for the opposite party in the particular issue within the meaning of the statute, the trial court will not be held in error for directing an appropriate verdict, no error of law or procedure intervening to make the directed verdict erroneous or improper. Okeechobee Co. v. Norton, 149 Fla. 651, 6 So. (2d) 632, 635, wherein the prescribed adverse possession was lacking.

Instrument must purport to convey land involved.-To be effective as color of title, an instrument must purport to convey the land involved. Therefore a legally sufficient description of the premises in the instrument relied upon as color of title is necessary. Mitchell v. Moore, 152 Fla. 843, 13 So. (2d) 314, 315.

Admissibility of ta.x deed in evidence.-Where the description is fatally defective, a tax deed is not admissible in evidence even as color of title, either under this or the following section or § 196.06. Mitchell v. Moore, 152 Fla. 843, 13 So. <2d) 314, 315.

Sufficiency of description of lan.ds in deed. If the description does not identify the land

with the degree of certainty essential to ascertain the boundaries and identity of the land, the deed or other instrument lacks one of the first essentials of color of title. Mitchell v. Moore, 152 Fla. 843, 13 So. (2d) 314, 315.

Applied in Carlton v. Elarbee, 154 Fla: 301, 17 So. (2d> 225.

§ 95.17 HISTORY.

Am. § 2, ch. 22897, 1945.

ANNOTATION. Evidence was insufficient to sustain cla1m

to land by adverse possession where claimant admitted that a portion of the property was not enclosed, and that the unenclosed portion was not usually cultivated or improved. Little v. Kendrick, 152 Fla~. 720, 12 So. (2d) 899, 900.

In Salls v. Martin, 156 Fla. 624, 24 So. (2d) 41, defendant in ejectment was not allowed to plead adverse possession where he was unable to show a return and payment of tax as is required by this section.

Applied in Drawdy Inv. Co. v. Leonard, 158 Fla. 444, 29 So. (2d) 198 (dis. op.).

Cited in Mahood v. Bessemer Properties, Inc., 154 Fla. 710, 18 So. (2d) 775, 153 A. L. R. 1199.

§ 95.18 ANNOTATION. And he can avail himself of adverse possession, etc.

One claiming title by adverse possession without color of title can recover only that part actually occupied. If the portion actually occupied is not definitely described, no judgment can be entered on the claim. Little v. Kendrick, 152 Fla. 720, 12 So. (2d) 899, 900.

Possession cannot be adverse to one who baa no right to possession. Wright Estates v. Germain, 152 Fla. 612, 12 So. (2d> 451, 452.

Possession under an executory contract Is not adverse as to the vendor and his priVies. Wright Estates v. Germain, 152 Fla. 612, 12 So. <2d) 451, 452.

Where whatever rights claimant had to proPerty were vested before the act became effective, the provisions of this section as to returning property for taxation were inapplicable. Little v. Kendrick, 152 Fla. 720, 12 So. (2d) 899, 900.

This section as amended in 1939 was intended to have prospective application only. Palmer v. Greene, <Fla.), 31 So. (2d) 706.


Cited in Saraoota-Fruitville Drainage Dist. v. All Lands, etc., 157 Fla. 206, 25 So. (2d) 498; Palmer v. Greene, (Fla.), 31 So. (2d) 706.

[ 63]


§ 95.21 § 98.03 WSTORY. 'ANNOTATION.

Am. § 3, ch. 22897, 1945. Stated in Clements v. Starbird, 152 Fla. 555, 12 So. (2d) 578.

§ 95.23 § 98.08 ANNOTATION. Cited in Model Land Co. v. Crawford, 155 Fla. ANNOTATION.

323, 20 So. <2d) 122; Ideal Farms Drainage Dist. Cited in Advisory Opinion to Governor, 157 v. Certain Lands, 154 Fla. 554, 19 So. (2d) 234. Fla. 885, 27 So. (2d) 409.

§ 95.26 § 98.13 WSTORY. HISTORY.

Comp. §§ 1-4, ch. 21790, 1943. Am. § 1, ch. 22759, 1945.


Comp. § 4, ch. 22897, 1945. Am. § 2, ch. 22759, 1945.

§ 95.28 § 98.22 HISTORY. HISTORY.

Comp. § 1, ch. 22560, 1945. Am. § 1, ch. 24203, 1947.


Comp. § 2, ch. 22560, 1945. Am. § 2, ch. 24203, 1947.


Comp. § 3, ch. 22560, 1945. Repealed § 11, ch. 24203, 1947.


Comp. §§ 4-6, ch. 22560, 1945. Am. § 3, ch. 24203, 1947.


Comp. § 7, ch. 22560, 1945. Am. § 4, ch. 24203, 1947.


Comp. § 8, ch. 22560, 1945. Am. § 5, ch. 24203, 1947.


Comp. § 9, ch. 22560, 1945. Am. § 6, ch. 24203, 1947.


Comp. § 1, ch. 24292, 1947. Am. § 7, ch. 24203, 1947.

TITLE IX. § 98.37 HISTORY.

ELECTORS AND ELECTIONS. Am. § 8, ch. 24203, 1947.

§ 98.39 CHAPTER 98.

Qualifications and ~egistration of Voters. HISTORY.

Am. § 9, ch. 24203, 1947.

§ 98.02 § 98.41 ANNOTATION.

Cited in Pace v. District of Columbia, 135 F. HISTORY. (2d) 249. Am. § 10, ch. 24203, 1947.

[ 64]


§ 98.51 HISTORY.

Comp. §§ 1-3, ch. 21762, 1943.

CHAPTER 99.

Holding Elections and Ascertaining the Results.

§ 99.02 HISTORY.

Am. § 1, ch. 24088, 1947.

§ 99.05 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 99.07 HISTORY.

Am. § 1, ch. 22739, 1945.

ANNOTATION. Where the only irregularity shown to have oc

curred in an election on a bond issue for the construction of a Bay County hospital was in the notice concerning the time for opening and closing the polls, and it is not shown that the electors did not freely exercise the right of suffrage and there is no intimation that if the statute had been strictly complied with the result would have been different does not invali- · date election. Bay County v. State, 157 Fla. 47, 24 So. (2d) 714.

§ 99.10 HISTORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. As to the nomination of minority political

parties, see § 102.71. Only the names of those nominated in a pri

mary election could require their names to be printed on the official ballot. State v. Gray, 154 Fla. 861, 19 So. (2d) 311.


Cited in State v. Gray, 154 Fla. 861 , 19 So. (2d) 311.

§ 99.16 HISTORY.

Am. § 1, ch. 22626, 1945.

ANNOTATION. Form of ballot pertaining to a particular

amendment was sufficient to put the electorate on notice as to the amendment they are voting upon, especially in view o'f the publication of the amendment for three months and the posting of a complete copy of it in each voting place. Sylvester v. Tindall, 154 Fla. 663, 18 So. (2d) 892.


Cited in Sylvester v. Tindall 154 Fla. 663, 18 So. (2d ) 892.

§' 99.21 HISTORY.

Am. § 2, ch. 24088, 1947.

§ 99.29 ANNOTATION. Use of cross mark is mandatory.

In accord with original, see McAlpin v. State, 155 Fla. 33, 19 So. (2d) 420.


The primary purpose of this section was to enable the voter if desired to vote a straight party ticket by the use of a cross ( X ) mark in the circle at the top of the ballot as required by the Statute. Cobb v. Board of Com'rs, 155 Fla. 60, 19 So. (2d ) 505.

It requires the names of candidates of each party to be arranged in separate perpendicular columns, the candidates of the party receiving the largest vote in the preceeding general elect ion to be printed in the first column. There are no specifications as to width or length of the columns or whether they may be broken. Cobb v. Board of Com'rs, 155 Fla. 60, 19 So. (2d) 505.

Any form where the names of candidates of each party are arranged in separate columns so that the voter can vote a straight ticket, if he desires is sufficient provided of course, that mandatory requirements of the statute are observed. Id.

§ 99.58 HISTORY.

Comp. §§ 1, 2, cll.. 23957, 1947.

CHAPTER 100.

Voting Machines.

§ 100.01 ANNOTATION. Sufficiency of form of ballot.-

Ballot which contained by title and number proposed amendment to Article IV of the Constitution was sufficient in form, but, if irregular, the irregularity was cured by the adoption of the amendment by the people. Sylvester v. Tindall, 154 Fla. 663, 18 So. (2d ) 892.

§ 100.11 HISTORY.

Am. § 1, ch. 24089, 1947.

§. 100.25 HISTORY.

Am. § 7, ch. 22858, 1945.

[ 65]

§ 100.26. 1947 CUMULATIVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941

§ 100.26 HISTORY.

Am. § 2, ch. 24089 ,. 1947.

§ 100.34 HISTORY.

Am. § 1, ch. 22018, 1943. Am. § 3, ch. 24089, 1947 .

§ 100.35 HISTORY.

Am. § 2, ch. 22018, 1943.

§ 100.36 HISTORY.

Am. § 3, ch. 22018, 1943.

§ 100.37 HISTORY.

Am. § 4, ch. 22018; 1943.

§ 100.38 HISTORY.

Am. § 5, ch. 22018, 1943.

§ 100.39 HISTORY.

Am. § 6, ch. 22018, 1943.

§ 100.42 HISTORY. ··

Comp. § 3A, ch. 22018, 1943. Am. § 4, ch. 24089, 1947.

·§ 100.43 HISTORY.

Comp. § 3B, ch. 22018, 1943. • ' • I

§ 100.44 HISTORY.

Comp. § 3C, ch. 220i8, 1943.

§ 100.45 HISTORY.

Comp. § 3D, ch. 22018, 19~3.

. § 100.46 HISTORY.

Comp. § 3E, ch. 22018, 1943.

§ 100.47 HISTORY.

Coinp. §§ 7, 8, ch. 22018, 1943.

§ 100.48 HISTORY:

Comp. § 10, ch. 22lH8, 1943.

HISTORY.

CHAPTER 101.

Absent Voters.

§ 101.11

Comp. § 1, ch. 22014, 1943.

§ 101.12 HISTORY.

Comp. § 2, ch. 22014, 1943.

HISTORY. § _101.13

Comp. § 3, ch. 22014, 1943.

§ 101.14 HISTORY.

Comp. § 4, ch. 22014, 1943.

§ 101.15 HISTORY.

Comp. § 5, ch. 22014, 1943.

§ 101.16 HISTORY.

Comp. § 6, ch. 22014, 1943.

§ 101.17 HISTORY.

Comp. § 7, ch. 22014, 1943.

§ 101.18 HISTORY.

Comp. § 8, ch. 22014, 1943.

§ 101.19 HISTORY.

Comp. § 9, ch. 22014, 1943.

CHAPTER 102.

Primary Elections.


Quoted in Davis v . State, 156 Fla. 178, 23 So. (2d ) 87.


A negro person of African descent, who is otherwise a qualified elector under the laws of Florida and desires to be registered as such elector affiliated with the Democratic Party, shall be declared and taken as a proper member of the Democratic Party of Florida and is entitled to be registered as a democratic elector on the registration books. Davis v. State, 156 Fla. 181, 23 So. <2d ) 85.

§ 102.23 HISTORY.

Repealed by § 1, ch. 21958, 1943.

§ ·102.26 ANNOTATION.

Any candidate's sworn statement and filing fee that is placed in the mail, or in the hands of a common carrier, in time to reach Talla-

[ 66]


hassee on regular schedule during February 1 should be construed as full compliance with the law. State v. Gray, 154 Fla. 255, 17 So. (2d) 228 (dis. op.).


Cited in State v. Gray, 157 Fla. 229, 25 So. (2d) 492.


Cited in State v. Gray, 157 Fla. 229, 25 So. (2d) 492.

§ 102.29-1 HISTORY.

Comp. § 1, ch. 22760, 1945.

§ 102.3i ANNOTATION.

This section must necessarily be read in pari materi with §102.69. State v. Gray, 154 Fla. 255, 17 So. (2d) 228.

This section evidences no indication of an intention to except anyone from its operation, or to place the duty or resposibility for compliance therewith upon anyone other than the prospective candidate himself. State v. Gray, 157 Fla. 229, 25 So. (2d) 492.

And compliance therewith is required.-Compliance with the provisions of this section and § 102.67 constitutes a condition precedent to the exercise of the rights and privileges thereof. State v. Gray, 157 Fla. 229, 25 So. (2d) 492.

§ 102.31-1 HISTORY.

Comp. § 1, ch. 22679, 1945.

§ 102.32 ANNOTATION. Delayed d~livery of oath and fees.-

Secretary of State was not required to place name of candidate for State Senator on primary election ballot, where application, oath and fees of candidate did not reach Secretary of State until 1 A. M. of Feb. 2, 1944, because of delay of candidate in delivering them to transportation company until after 12 o'clock noon on February 1, 1944, and lack of diligence of transportation company. State v. Gray, 154 Fla. 255, 17 So. <2d) 228.


Quoted in State v. Gray, 154 Fla. 255, 17 So. (2d) 228.


§ 102.35-1 HISTORY.

Comp. §1, ch. 23006, 1945.

§ 102.36 HISTORY.

Am. § 1, ch. 24163, 1947.


Scope and effect.-The provision of this section does not provide an adequate and effective means for filling the vacancy in the office of United States Senator occurring 48 days before the general election since the statute contemplates one and perhaps a second primary, and it would not be possible, within the period shown, to issue the writ of election, give the notice, call and hold one, and possibly two primaTies as contempia.tedJ, ami •then have the name of the nominee placed on the general election ballot. Advisory Opinion to Governor, 157 Fla. 885, 27 So. <2d) 409.

§ 102.56-1 HISTORY.

Comp. §§ 1, 2, ch. 22627, 1945.

§ 102.61 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 102.67 HISTORY.

Am. § 1, ch. 21702, 1943.

ANNOTATION. The sole purpose and intent of this section is

to provide a method to coerce the Governor in the exercise of the power of appointment under article III, section 27 of the constitution. State v. Gray, 157 Fla. 229, 25 So. (2d) 492. (dis. op.)

Compliance with the provisions of this section and § 102.31 constitutes a condition precedent to the exercise of the rights and privileges thereof. Id.

This section evidences no indication of an intention to except anyone from its operation, or to place the duty or responsibility for compliance therewith upon anyone other than the prospective candidate himself. Id.

§ 102.69 HISTORY.

Comp. § 1, ch. 21851, 1943.

ANNOTATION. Evidence failed to meet the requirements of

this section. State v. Gray, 154 Fla. 255, 17 So. (2d) 228.

Quoted in State v. Gray, 154 Fla. 255, 17 So. § 102.70 (2d) 228; State v. Gray, 157 Fla. 229, 25 So. (2d) HISTORY. 492. · Comp. § 2, ch. 21851, 1943.

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§ 102.71 1947 CUMULATIVE SUPPLEMENT TO VOLUMED, FLORIDA STATUTES, 1941

§ 102.71 HISTORY.

Comp. §§ 1-2A, ch. 22039, 1943. Am. §§ 1-3, ch. 22678, 1945.

ANNOTATION. The reasonable purpose of this section was to

restore the status of minority parties as it existed prior to the enactment of Chapter 14657, Acts of 1931, < § 99.10, Fla. Stats., 1941), since it expressly permits the State Executive Committee of such parties to provide by resolution for the nomination of presidential electors and party committeemen. It is silent as to elective state and county officers. State v. Gray, 154 Fla. 861, 19 So. (2d) 311.

Where petition for alternative writ of mandamus failed to show that petitioners were bound together in some form of organization and that for at least two consecutive presidential elections they attempted but failed to elect a majority of the electors for president and vice president, the petition was subject to a motion to quash. Id.

§ 102.72 HISTORY.

Comp. §§ 1-3, ch. 22058, 1943 . . Am. § 1, ch. 22729, 1945.

§ 102.73 HISTORY.

Comp. §§ 1-6, ch. 24103, 1947.

ANNOTATION.

CHAPTER 103.

Bond Elections.

§ 103.01

Cited in Miami Beach v. Tenney, etc., Holding Co., 150 Fla. 241, 7 So. (2d) 136; Port of Palm Beach v. State, 156 Fla. 99, 22 So. (2d) 581.


Cited in Holmer v. State, 158 Fla. 397, 28 So. (2d) 586.



§ 103.06 ,HISTORY.

4tn. § 7, ch. 22858, 1945.

A1ffl'QTATION. Cited in State v. Monroe County, 158 Fla. 251,

27 SQ. (~p) 339; Holmer v. State, 158 Fla. 397, 28 so. <2d) 586.

§ 103.07 HISTORY.

A.m. § 7, ch. 22858, 1945.




Cited in Port of Palm Beach v. State, 156 Fla. 99, 22 So. (2d) 581.


This section imposed the duty on the board of county commissioners to determine and make a finding of fact reflecting the truth as to tl'le actual number of freeholders otherwise qualified to vote in the election. Bowers v. Alachua County, 150 Fla. 581, 8 So. (2d) 395, 398.


HISTORY. Comp. § 1, ch. 22545, 1945.

CHAPTER 104.

Contesting Elections.

§ 104.01 ANNOTATION •

. Where it appears that the relator has failed to show that he secured a majority of the legal votes cast as he is required by law to do, a clear legal right to mandamus is not shown. McAlpin v. State, 155 Fla. 33, 19 So. (2d) 420.

CHAPTER 106.

Election of United States Senators.


This section is a repetition of the quoted part of the seventeenth Am.endment to the Federal Constitution, except for the latter clause which authorizes the Governor to make "temporary appointments until the vacancy is filled by election." Stanley v. ~ampqell, 157 Fla. 891, 27 So. (2d) 411.

TITLE X.

OFFICES, OFFICERS AND PUBLIC RECORDS.

CHAPTER 111.

Compensation of Certain Administrative qmcials.

§ 111.01 HISTORY.

Am. § 1, ch. 22913, 1945. Am. § 1, ch. 24034, 1947.

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1947 CUMULATIVE SUPPLEMENT TO VOLUMED, FLORIDA STATUTES, 1941 § 115.08

ANNOTATION. Subsection (4) of this section is not bad ab

initi~ set of circumstances mwy arise in which it could be uPheld. State v. Gay, 158 Fla. 465, 28 So. (2d) 901.

Subsection (4) of this section attempts to overcome the constitutional prohibition by permitting the raise in salary during the period fOT whicl). they are elected to the legislature. State v. Gay, 158 Fla. 465, 28 So. (2d) 901.

CHAPTER 112.

Persons Eligible to Office, Retirement, Expenses.

§ 112.02 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 112.05 IDS TORY.

Am. § 1, ch. 22828, 1945.

§ 112.06 HISTORY.

Am. §§ 1, 1A, ch. 21913, 1943. Expired after June 30, 1945.

§ 112.06-1 HISTORY.

Camp. §§ 1, 3, ch. 22830, 1945. Am. §§ 1-3, ch. 23892, 1947.

§ 112.15 IDS TORY.

Camp. § 1, ch. 21646, ·1943.

§ 112.16 HISTORY.

Comp. § 1, ch. 23672, 1947.

§ 112.17 HISTORY.

Camp. § 2, ch. 23672, 1947.

CHAPTER 113.

Commissions.


As to effect of absence of conuruss10n, see Palmer v. State, 149 Fla. 616, 6 So. (2d) 550.

ANNOTATION.

CHAPTER 114.

Vacating Office.

§ 114.01

I. GENERALLY.

There is no inherent power in the executive to fill a vaca.ncy in office-his power to do so must be expressly provided by the oonstitution and

conferred by law. State v. Wiseheart, 158 Fla. 267, 28 So. (2d) 589.

The gove·rnor may d·eclare a vacancy under the conditions in this section or by removal as providJed im. rrurticle IV, §15, of the oonstitution but not otherwise. Id.

· The fact as to whether or not a vacancy exists masy be dete11mined primar ily by the Governor but his finding in t his regard may be challenged in Pl'OPer proceedings in oourts of competent juisdiction. State v. Wi.seheart, 158 Fla. 267, 28 So. (2d) 589 (dis. op.>.

Cited in ·Advisory Opinion to Governor, 152 Fla. 686, 12 So. (2d) 876; Stanley v. Campbell, 157 Fla. 891, 27 So. (2d) 411.


I. GENERALLY. '

There must be a vacancy before appointment. -In' accord with origina l see State v. Wisehea.rt, 158 Fla. 267, 28 So. (2d) 589. Term of office generally.

Under this section and under § 7 of Art. IV of the Fla. Constitution, persons appointed by the governor to fill vacancies. occurring in elective offices are entitled to take and hold such offices until the same should be filled by election as provided by law. · Advisory Opinjon to Governor, 152 Fla. 686, 12 So. (2d) 876, 878.

Ill. APPOINTMENT OF .JUDGES. Appointment of circuit judge after adoption

of § 46 of Article V of the Florida. Constitution.-Vacancy in circuit judgeship created by the elevation of circuit judge to the supreme court after the adoption of § 46 of Art. V of the Fla. Constitution, requiring circuit judges to be elected with first election to be held in 1948 and extending the present terms of circuit judges to 1949, was required to be filled by appointment of the governor subject to confirmation by senate and commission issued to appointee under ad interim appointment should read, "until the end of th~ next ensuing session of the senate unless an appointment should be sooner made and confirmed by the senate." Advisory Opinion to Governor, 152, Fla. 674, 12 So. (2d) 879.

CHAPTER 115.

Leaves of Absence to Officials.

§ 115.01 ANNOTATI.ON.

See th!J Fla. Const., Art. IV, §§ 1, 15 and Art. XVI, § 15, and annotations thereto,.

Cited in In re Advisory Opinion to Governor, 151 Fla. 44, 9, (2d) 172.


The purpose of this and the following seven sections was to secure to officials performing

[ 69]


military services in the armed forces of the United States their tenure of office for the entire term of their respective offices as fixed by law. Advisory Opinion to Governor, 152 Fla. 674, 12 So. (2d) 879, 880. See also, In re Advisory Opinion to Governor, 150 Fla. 556, 8 So. (2d) 26; 140 A. L. R. 1481; In re Advisory Opinion to Governor, 151 Fla. 44, 9 So. (2d) 172.

Legislature may secure an officer in his tenure. -Since the state constitution recognizes allegiance to the federal government, state constitutional provisions should be construed to effectuate that allegiance. It is within the constitutional power of the legislature to secure a state or county officer in his tenure during the period for which he was elected and there is nothing in this and the following seven sections inconsistent with this power. In re Advisory Opinion to Governor, 150 Fla. 556, 8 So. (2d) 26, 32, 140 A. L. R. 1481.

Absences on leave for the performance of mllitary services does not create a vacancy in office, as the absent officer's term of office is preserved, and the appointment by the governor of persons to act in the place and stead of such officials on leave does not require any con-1lrmation by the senate. Advisory Opinion to Governor, 152 Fla. 674, 12 So. (2d) 879, 880.

See annotations to Fla. Canst., Art. IV, § 15, and Art. XVI, § 15.

Cited in Wood v. State, 155 Fla. 256, 19 So. (2d) 872.


Cross references.-As to governor's power to appoint persons to perform duties of officers ~bsent, in war service, see annotation to § 1, Art. IV of the Fla. Constitution. See also, Fla. Const., Art. IV, § 15 and Art. XVI, § 15 and annotations thereto.

Appointment of persons to perform duties of officers requesting leave.-!! the officer who requests the leave of absence under the statute is authorized to name a deputy to take charge of and perform the duties of the office, he should name a competent person to do this before or at the time of requesting the leave of absence but if not clothed with such power under the law, the power vested in the governor to grant the leave of absence necessarily implies the power to name a suitable person to perform the duties of the office during the period of the absence. In re Advisory Opinion to Governor, 150 Fla. 556, 8 So. (2d) 26, 32, 140 A. L. R. 1481.

Upon granting leave of absence to a sheriff for military or war purposes, the governor may under § 17, Art. XVI of the Fla. Constitution, declare a compulsory absence of the sheriff from official duty in the war service, and if a deputy duly appointed by the sheriff is satisfactory to the governor, he may designate such person, or if not satisfactory he may in his executive discretion designate another, to per-

form the duties of the office during such absence of the sheriff not longer than the remainder of the term. In re Advisory Opinion to Governor, 151 Fla. 44, 9 So. (2d) 172, 175.

Removal of person designated to ta.k.e place of absent officer.-The deputy or person designated takes the place of an officer absent in war service is subject to removal in like manner as the original officer. In re Advisory Opinion to Governor, 150 Fla. 556, 8 So. (2d) 26, 32, 140 A. L. R. 1481.

Quoted in part in Wood v. State, 155 Fla. 256, 19 So. <2dl 872.


The discretion of the governor to grant or deny a leave of absence is not an arbitrary one. In re Advisory Opinion to Governor, 150 Fla. 556, 8 So. (2d) 26, 32, 140 A. L. R. 1481.

CHAPTER 116.

Powers and Duties of Officers.

§ 116.03 HISTORY.

Am. § 1, ch. 2419>8,, 1947.


Cited in note to Kotch v. River Port Pilot Comrs. <U.S.> 91 L. Ed. 826.


Cited in note to Kotch v. River Port Pilot Comrs. (U.S.) 91 L. Ed. 826.

§ 116.12 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 116.19 HISTORY.

Am. § 1, ch. 23854, 1947.

§ 116.21 HISTORY.

Camp. §§ 1-4, ch. 22050, 1943.

HISTORY.

CHAPTER 117.

Notaries Public.

§ 117.01

Am. § 1, ch. 21765, 1943.

[ 70]


ANNOTATION.

CHAPTER 119.

Public Records.

§ 119.01

Citizen may inspect records.-When a citizen applies to inspect or make

copies of them, it is the duty of the town clerk to make provision for this to be done in such manner as will accommodate the applicant and at the same time safeguard the records. Fuller v. State, 154 Fla. 368, 17 So. (2d) 607.

And may make copies.-The best-reasoned authority in this country

holds that the right to inspect public records carries with it the right to make copies. Fuller v. State, 154 Fla. 368, 17 So. (2d) 607.

CHAPTER 120.

General Provisions Relating to Boards, Commissions, Etc.

§ 120.01 HISTORY.

Comp. § 1, ch. 21778, 1943. Repealed by § 7, ch. 24337, 1947.

§ 120.02 HISTORY.


§ 120.03 HISTORY.

Comp. § 3, ch. 21778, 1943. Repea,led by § 7, ch. 24337, 1947.

§ 120.04 HISTORY.


§ 120.05 HISTORY.


§ 120.06 HISTORY.

Comp. § 7, ch. 21778, 1943.

§ 120.07 HISTORY.

Comp. §§ 1, 2, ch. 21694, 1943.

§ 120.08 HISTORY.

Comp. §§ 1-5, ch. 21821, 1943. Transferred to chapter 695 and renumbered

§ 695.03-1.

CHAPTER 121.

State Officers and Employees' Retirement System.

§ 121.01 HISTORY.

Comp. § 1, ch. 22831, 1945. Am. § 1, ch. 23958, 1947.

ANNOTATION.

Chapter was held not to violate Art. III, § 16, Florida Constitution, in that the body of the act is not broader than the title. State v. Lee, 158 Fla. 148, 28 So. (2d) 104.

§ 121.02 HISTORY.

Comp. § 2, ch. 22831, 1945. Am. § 2, ch. 23958, 1947.

§ 121.03 HISTORY.

Comp. § 3, ch. 22831, 1945. Am. § 3, c!h. 23958, 1947.

§ 121.04 HISTORY.

Comp. § 4, ch. 22831, 1945. Am. § 4, ch. 23958, 1947.

§ 121.05 HISTORY.

Comp. § 5, ch. 22831, 1945. Am. § 5, ch. 23958, 1947.

§ 121.06 HISTORY.

Comp. § 6, ch. 22831, 1945.

§ 121.07 HISTORY.

Comp. § 7, ch. 22831, 1945. Am. § 6, ch. 239~8. 1947.

§ 121.08 HISTORY.

Comp. § 8, ch. 22831 , 1945. Am. § 7, ch. 23958, 1947.

§ 121.09 HISTORY.

Comp. § 9, ch. 22831, 1945.

§ 121.10 HISTORY.

Comp. § 10, ch. 22831, 1945. Am. § 8, ch. 23958, 1947.

. § 121.11 HISTORY.

Comp. § 11, ch. 22831, 1945.

[ 71]


§ 121.12 WSTORY.

Comp. § 12, ch. 22831, 1945.

§ 121.13 HISTORY.

Comp. § 13, ch. 22831, 1945.

§ 121.14 IDS TORY.

Comp. § 14, ch. 22831, 1945.

§ 121.15 HISTORY.

Comp. § 15, ch. 22831, 1945. Am. § 9, ch. 23958, 1947.

§ 121.16 HISTORY.

Comp. § 16, ch. 22831, 1945.

§ 121.17 WSTORY.

Comp. § 17, ch. 22831 , 1945.

TITLE XI.

COUNTY ORGANIZATION, OFFICERS AND REGULATIONS.

CHAPTER 124. Commissioners' Districts.

§ 124.01 HISTORY.

Am. § 1, ch. 24108, 1947.

ANNOTATION. Section is not in harmony with § 5, Article

VUI, as amended in 1944, therefore, the provisions of the constitution will control, rather than the statute. Prince v. State, 157, Fla. 103, 25 So. (2d) 5.

§ 124.02 HISTORY.

Am. § 1, ch. 24108, 1947.

§ 124.03 HISTORY.

Am. § 1, ch. 24108, 1947.

§ 124.04 HISTORY.

Am. § 1, ch. 24108, 1947.

ANNOTATION. Purpose.-It was the purpose of 'this section

that it would apply to changes in one or· more districts which were sought to be made after the County Commissioners had, under the provisions of the Constitution as it existed prior to 1944, divided the county into five County

Commissioners' Districts. Prince v. State, 157 Fla. 103, 25 So. (2d) 5.

§ 124.05 HISTORY.

Repealed by ch. 2410'8,, 1947.

CHAPTER 125.

County Commissioners; Powers, Duties and Compensation.


I. GENERALLY.

Powers are vested by statute.-The County Commissioners have no powers other than those expressly vested in them by statute, or that must be necessarily implied to carry into effect the powers thus expressly vested, and their governmental powers cannot be delegated. Crandon v. Hazlett, 157 Fla. 574. 26 So. (2d) 638.

III. MISCELLANEOUS POWERS.

Sale of real property.-This section contains fifteen subsections spe

cifying the powers and duties of members of the board of county commissioners, none of which bestows the power to sell real property. The sixteenth section, general in its nature, is exactly the same as the thirteenth subsection appearing in the original act and in McClellan's Digest, except that the words italicized have been deleted: "To perform all other acts and duties which may be authorized and required by law." Gessner v. Del-Air Corp., 154 Fla. 829, 17 So. (2d) 522.

§ 125.23 I

ANNOTATION. Where the amended alternative writ of man

damus shows that every prerequisite for the formation of a fire control unit has been complied with, and the budget plan of work was approved by the board of county commissioners, mandamus would lie to compel the county budget commission to approve the plan. State v. Davis, 154 Fla. 835, 19 So. (2d) 373.

§ 125.25 HISTORY. . ,

Am. § 1. ch. 21997, 1943.

ANNOTATION. In general.-

There is nothing in the law which authorizes the county budget commission to question the policy of the legislature in adding to or taking from the duties of a county board or thwart the means for the execution of their duties. State v. Davis, 154 Fla. 835, 19 So. <2d) 373.

County budget commissions are primarily fiscal in purpose and partake but little if at all of the policy making aspect. They are of late arrival in our scheme of government and grow

[ 72]

1947 CUMULATIVE SUPPLEMENT TO VOLUME ll, FLORIDA STATUTES, 1941 § 129.01

out of the complex situation in which governmental integers found themselves from having taken over so many public services in addition to the duty of governing. The budget commission may raise or lower estimates of the different boards and in other respects reconcile their fiscal affairs. State v. Davis, 154 Fla. 835, 19 So. (2d) 373.

where a county fire control unit had been approved by the voters ·in a referendum election, and a budget plan had been approved by the county commissioners but had been disapproved by the budget commission, because of which the board of commissioners refused to pay anything from the sum they were authorized to pay in support of the unit, there was no reason for the budget commissioners to again advertise for a public hearing in the matter. The budget commission could not add to or take away from the flat sum appropriated for a specific purpose. Id. .

§ 125.26 HISTORY.

Am. § 2, ch. '21997, 1943.

ANNOTATION. The function of the county budget commis

sion consistS in its power to raise or lower estimates of the different boards and in other respects reconcile their fisc.al affairs. State v. Davis, 154 Fla. 835, 19 So. <2d) 373.

§ 125.29 HISTORY.

Am. § 3, ch. 21997, 1943. Am. §§ 1-3, ch. 22635, 1945.

§ 125.31 HISTORY.

Comp. §§ 1-4, ch. 21691, 1943.

HISTORY. Comp. §§ 1-3, ch. 21957, 1943.

ANNOTATION. Cited in Crandon v. Hazlett, 157 Fla. 574, 26

So. <2d) 638. ' i.

§ 125.33 ·' HISTORY.

Comp. §§ 1-4, ch. -'22067, 1943. , , § 125.34

HISTORY. Gomp. §§ 1'-3, ch. 23670, 1947 . .

. §' 125.35 HISTORY.

camp. § 1, ch. 23829, 1947.

§ 125.36 HISTORY.

Comp. § 2, ch. 23829, 1947.

§ 125.37 HISTORY.

Comp. § 3, cihJ. 23829, 1947.,

§ 125.38 HISTORY.

Camp. § 4, ch. 23829, 1947.

§ 125.39 HISTORY.

Comp. § 5, ch. 23829, 1947.

§ 125.40 HISTORY.

Gomp. § 6, ch. 23829, 1947.

§ 125.41 HISTORY.

Gomp. §§ 1, 2, 3, ch. 23831, 1947.

§ 125.42 HISTORY.

Comp. §§ 1-3, ch. 23850, 1947.

CHAPTER 127.

Right of Eminent Domain to Counties.

§ 127.01 HISTORY.

Am. § 1, ch. 22802, 1945.

ANNOTATION. Scope and eft'ect,,_The effect of this section

was to place a limitation upon the county's right to exercise the drastic power of eminent domain by making the necessit y for the taking a. judicial question. Peruvy-Wilson Lumber Co. v. Brevard County, <Fla.) , 31 So. (2d) 483.

'11his section, nongovernmental in character, rests upo!l1 the police power of the state. Id.

By the 1945 amendment of this section, the legislature expressiy limited the power of eminent domain, when brought into use to acquire lands for parks and playgrounds, ·to such lands as the court found a public necessity existing therefor. I d.

"Public necessity," as used in this section, does not require t111a.t the several counties should condemn private property and engage in competition with· the citizens who make a living by providing hun•ting and fishing lodges· and other forms of amusement. Peavy-Wilson Lumber Co.·v. BreV'M'd County, <Fla.), 31 So. (2d) 483.

CHAPTER 129 .

County Annual Budget.


The purpose of budgeting is to inoculate the administration of n:rutional, state OOdJ local government with some degree of system and business

[ 73]


order; to put an end to blind spending ; to get away from anything that sav.ors of a spendthrift policy, and reduce income and outgo to a common level and it is contrary to every principle of county financing to permit excess amounts to accumulate in any county fund. CollS'Olidated Naval Stores Co. v. Hendry, (Fla.), 30 So. (2d ) 617.

In estimating for tbe county budget, the county commissioners may anticipate that 95 per cent of all rad: valorem taxes extended oru rthe tax rolls will be paid. Consolidated Naval Stores Co. v. Hendry, (FLa.), 30 So. (2d) 617.

Economic conditions over the country, the indica,tions pointing to whether the starte will have few or many winter visitors, the proportion of those who are libel\al or conservative spenders, and the awerage returns from racing over a period of yea.:rs and tJhe footors that cause them to fluctuate are factors that may be considered. Id.

§ 129.05 HIS TOR¥.

Am. § 7, ch. 22000, 1943.

ANNOTATION. Cited in Clements v. Starbird, 152 Fla. 555, 12

So. (2d) 578.

ANNOTATION.

CHAPTER 130.

County Bonds.

§ 130.01

Stated in Clements v. Starbird, 152 Fla. 555, 12 So. (2d) 578.

§ 130.11 HISTORY.

Am. § 7, ch. 22858, 1945.

CHAPTER 131.

Refunding Bonds of Counties, Cities, etc.

§ 131.01 ANNOTATION. Bonds unlawfully deferring payment of interest.

As to the effect of the 1930 amendment of Fla . . Const., Art. IX, § 6, upon the holdings of Davis v. Dixon, 98 Fla. 87, 123 So. 536 and Jouvenal v. Dixon, 99 Fla. 936,. 128 So. 27, appearing in original, see State v. Special Tax School Dist., 107 Fla. 93, 144 So. 356. See also, annotations to Fla. Const., Art. IX, § 6 and Art, XII, § 17, as appearing in the original.

CHAPTER 132.

General Refunding Law.

§ 132.01 ANNOTATION. Cross reference.

See: annotation to Fla. Const., Art. IX, § 16.

Chapter modified by section 237.33 as to special tax school district refunding bonds.-The provisions of this chapter were modified and superseded as to maturities of special tax school district refunding bonds by § 237.33 so as to make the maturities and other features in the issuance of such special tax school district refunding bonds subject to § 237.33 instead of this chapter or § 17, Art. XII of the Fla. Constitution, § 237.33 not being forbidden by 117, Art. XII, or any other section of the Constitution. Board of Public Instruction v. Raymond, 150 Fla. 178, 7 So. (2d) 99, 101.

Abuse of discretion.-Allegations in answer to proceeding to vali

date refunding bond issue by City of Miami Beach, that state was without knowledge as to whether the bonds were designed for the purpose of refunding certain other outstanding bonds, that General Refunding Act was not applicable to bond issue in question and that it would be for the best interests of the city and its inhabitants to extend the time of paying said bonds by refunding, were insufficient to show an abuse of discretion by the issuing authority. State v. Miami Beach, 154 Fla. 34, 16 So. (2d) 344.

Plan is to stabilize county credit.-This section is a part of a concerted plan on the part of the state to retrieve and stabilize the credit of counties and other minor entities lost by fantastic financing and paper schemes. State Board of Administration v. Pasco County, 156 Fla. 37, 22 So. (2d) 387.

Cited in State v. Crummer Co., 153 Fla. 640, 15 So. (2d) 441; Clements v. Starbird, 152 Fla. 555, 12 So. (2d) 678; State v. Fort Pierce, 155 Fla. 58, 19 So. (2d) 468; State v. Fort Myers, 155 Fla. 165, 19 So. (2d) 613; Meredith v. Winter Haven, 141 F. (2d) 348, 350.

§ 132.02 HISTORY.

Am. § 1, ch. 22001, 1943.

ANNOTATION. Port authority is a "taxing unit.''-The Brow

ard county port authority is a taxing unit as contemplated by this chapter and may refund bonds as authorized by this chapter. Weigel v. Broward County Port Authority, 152 Fla. 70, 10 So. (2d) 815, 816.


Cross reference.-As to right of State Board of Administration to bring suit to prevent illegal interest payments, see notes to Florida Constitution, Art. IX, § 16.

Provision for the redemption of outstanding bonds prior to maturity upon the payment of bonds at par with accrued interest and one year's interest at a certain percentage in addit ion did not require the approval of the freeholders who are qualified electors residing in the county. State v. Lakeland, 154 Fla. 137, 16 So. (2d) 924.

[ 74]



Quoted in State v. Lakeland, 154 Fla. 137, 16 So. (2d) 924.


The same bonds may bear different rates of interest at different times. State v. Lakeland, 154 Fla. 137, 16 So. (2d) 924.


Both this section and § 132.14 recognize accrued interest and approve its payment. State v. Special Road, etc., Dist., 151 Fla. 531, 10 So. (2d) 341, holding that so much of a decree validating an issue of refunding bonds as included interest on principal of original bonds accruing after their maturity was not violative of § 6, Art. IX of the Fla. Constitution or §§ 132.08 and 132.14, Fla. Stats., 1941.


Cited in State v. Miami, 157 Fla. 616, 26 So. (2d) 672.




Applied in Renicks v. Lake Worth, 154 Fla. 694, 18 So. <2d) 769.


On issuing refunding bonds, city had authority to appropriate to the reserve fund created from past due taxes and unpaid special assessments. Renicks v. Lake Worth, 154 Fla. 694, 18 So. (2d) 769.

CHAPTER 134.

County Officers and Employees' Retirement System.

§ 134.01 HISTORY.

Comp. § 1, ch. 22938, 1945. Am. § 1, ch. 23959, 1947.

ANNOTATION. The employee of a county accepts the provi

visions of this chapter with full knowledge that it is to be administered on a sound actuarial basis, that when so administered, it may require modification of the benefits designated, but that on such a plan it guarantees the maximum benefits possible under this chapter. State v. Lee, 157 Fla. 62, 24 So. (2d) 798.

§ 134.02 HISTORY.

Comp. § 2, ch. 22938, 1945. Am. § 2, ch. 23959, 1947.

ANNOTATION. The provision that "Officers and Employees

shall include all full-time officers or employees, except day laborers ... " is a reasonable classification resting on a ground of difference having a fair and substantial relationship to the object of the County Officers and Employees' Retirement Act to increase the government efficiency and therefore does not offend against the equal protection clause of the State and Federal Constitutions. State v. Lee, 157 Fla. 62, 24 So. (2d) 798.

§ 134.03 HISTORY.

Comp. § 3, ch. 22938, 1945. Am. § 3, ch. 23959, 1947.

§ 134.04 HISTORY.

Comp. § 4, ch. 22938, 1945. Am. § 4, ch. 23959, 1947.

§ 134.05 HISTORY.

Comp. § 5, ch. 22938, 1945. Am. § 5, ch. 23959, 1947.

ANNOTATION. The authorization on the part of the State

Budget Commission to fix the rates of retirement pay on the basis of actuarial factors prescribed in this section is not invalid as a delegation of legislative power to an administrative board. State v. Lee, 157 Fla. 62, 24 So. (2d) 798.

§ 134.06 HISTORY.

Comp. § 6, ch. 22938, 1945.

ANNOTATION. The same burden is imposed on each officer

and employee under this section, hence is not discriminatory. State v. Lee, 157 Fla. 62, 24 So. (2d) 798.

§ 134.07 HISTORY.

Comp. § 7, ch. 22938, 1945. Am. § 6, ch. 23959, 1947.

§ 134.08 HISTORY.

Comp. § 8, ch. 22938, 1945. Am. § 7, ch. 23959, 1947.

§ 134.09 HISTORY.

Comp. § 9, ch. 22938, 1945.

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§ 134.10 HISTORY.

Comp. § 10, ch. 22938, 1945. Am. § 8, ch. 23959, 1947.

§ 134.11 HISTORY.

Comp. § 11, ch. 22938, 1945. Am. § 8a, ch: 23959, 1947.

§ 134.12 HISTORY.

Comp. § 12, ch. 22938, 1945.

§ 134.13 HISTORY.

Comp. § 13, ch. 22938, 1945.

§ 134.14 HISTORY.

Comp. § 14, ch. 22938, 1945.

§ 134.15 HISTORY. . Comp. § 15, ch. 22938, 1945.

Am. § 9, ch. 23959, 1947.

§ U4.16 HISTORY.

Comp. § 16, ch. 22938, 1945.

§ 134.17 HISTORY.

Comp. § 17, ch. 22938, 1945.

. § 134.18 HISTORY.

Comp. §§ 1, 2, 3, ch. 23960, 1947.

CHAPTER 135. \

County Buildings; Erection, Maintenance, Lease, etc.

§ 135.14 HISTORY.

Am. § 7, ch. 22858, 1945.

HISTORY.

CHAPTER 136

County Dei>c)sitories.

§ 136.01

Am. § 7, ch. 24306, 1947.

CHAPTER 137.

Bonds of County Officers.


it. Holland v. American Surety Co., 149 Fla. 285, 6 So. (2d) 280, 2S2, 140 A. L. R. 1451.


Construing this and the foregoing section together, there can be no escape from the conclusion that .the law binds the tax collector and his sureties generally for the faithful performance of his duties as such which includes any duty that may be subsequently imposed on him by law that is germane to or of a similar kind and within the reasonable contemplation of the parties. Holland v. American Surety Co., 149 Fla. 285, 6 So. (2d) 280, 282, 140 A. L. R. 1451, holding the distribution of license plates and collection of charges therefor is not foreign to the duties of the office of tax collector.

CHAPTER 142.

Fine and Forfeiture Fund; County.

§ 142.02 ANNOTATION .

Stated in Schleman v. Connecticut General Life Ins. Co., 151 Fla. 96, 9 So. (2d) 197.

§ 142.07 HISTORY.

Am. § 1, ch. 24306, 1947.

§ 142.14 HISTORY.

Repealed by § ~· ch. 22000, 1943. See § 30.25 .

CHAPTER 144.

Sheriff.

§ 144.01 HISTORY.

Transferred to § 30.15 by § 4, ch. 22790, 1945.

§ 144.02 HISTORY.


§ 144.03 HISTORY.

Transferred to § 30.15 ,_ by § 4, ch. 22790, 1945.

§ 144.04 HISTORY.


§ 144.05 HISTORY.

Renumbered § 30.32 by § 7, ch. 22790, 1945.

§ 144.06 The bond of a public official should be con- HISTORY.

strued to accomplish what the law requires of Renumbered § 30.33 by § 8, ch. 22790, 1945.

[ 76]


HISTORY. c § 144.07 § 149.10

HISTORY. Renumbered § 30.34 by § 9, ch. 22790, 1945. Repealed by § 14, ch. 22846, 1945.

§ 144.08 § 149.11 HISTORY. HISTORY.

Transferred to § 30.18 by § 5, ch. 22790 , 1945. Repealed by § 14, ch. 22846, 1945.

CHAPTER 145. § 149.12 Compensation of County Officials. HISTORY.

Repealed by § 14, ch. 22846, 1945. § 145.01 .

§ 149.13 ANNOTATION. Cited in Wood v. State, 155 Fla. 256, 19 So. HISTORY.

(2d) 872. Repealed by § 14, ch. 22846, 1945.

§ 145.02 ANNOTATION. Cited in Wood v. State, 155 Fla. 256, 19 So. (2d) 872.

§ 145.06 HISTORY.

Transferred to chapter 43 as § 43.01.

HISTORY.

CHAPTER 149.

County Airports.

§ 149.01

Repealed by § 14, ch. 22846, 1945.

§ 149.02 HISTORY.

Repealed by § 14, ch. 22846, 1945.

§ 149.03 HISTORY.

Repealed by § 14, ch. 22846, 1945.

§ 149.04 HISTORY.

Repealed by § 14, ch. 22846, 1945.

§ 149.05 HISTORY.

Repealed by § 14, ch. 22846, 1945.

§ 149.06 . HISTORY.

Repealed by § 14, ch. 22846, 1945.

§ 149.07 HISTORY.

Repealed by § 14, ch. 22846, 1945.

. HISTpRY . .

§ 149.08

Repealed by § 14, ch. 22846, 1945 . .

§ 149.09 .'' HISTORY.

Repealed by § 14, ch. 22846, 1945.

§ 149.14 HISTORY.

Repealed by § 14, ch. 22846, 1945.

§ 149.15 HISTORY.

Repealed by § 14, ch. 22846, 1945.

CHAPTER 154.

County Public Health Units.

§ 154.01 HISTORY.

Am. § 7, ch. 22858, 194~.

ANNOTATION. Cited in Ball v. Branch, 154 Fla. 57, 16 So.

(2d) 524.

CHAPTER 156. .

Drainage of Swamps and Overflowed Lands.

§ 156.11 HISTORY.

Am. § 7, ch. 22858, 1945.

CH_APTER 157.

Drainage by Counties.

§ 157.30 HISTORY.

Am. § 7, ch. 22858, 1945.

TITLE XII.

CITIES AND TOWNS.

CHAPTER 165.

Organization and Dissolution of. Municipalities.

§ 165.01 HISTORY.

Am. § 1, ch. 23656, 1947.

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ANNOTATION. Cited in North Miami v. Seaway Corp., 151

Fla. 301, 9 So. (2d) 705.

§ 165.03 HISTORY.

Am. § 2, ch. 23656, 1947.

§ 165.04 HISTORY.

Am. § 3, ch. 23656, 1947.


Ordinance prohibiting sale of Iiquors.-A city under the powers granted to all cities and towns has power to enact an ordinance making it unlawful for any person within the incorporate limits of said town to transport, sell, or possess with intent to sell, intoxicating liquors. Mears v. Stone, 151 Fla. 760, 10 So. (2d) 487, 488.

Ordinance prohibiting female from serving liquor by the drink over any bar or counter held unreasoitlllble as applied to woman employed as bartender. Brown v. Foley, 158 Fla.. 734, 29 So. (2d) 870.


Applied in Certain L:>ts, Etc., v. Town of Monticello, (Fla.), 31 So. (2dJ) 905.

§ 165.22 HISTORY.

Am. § 7, ch. 22858, 1945.


Although 'the provisions of this section first appeared in chapter 1885, acts of 1872, the opinions promulgalted in Florida reports since t'hat date failed to disc10"Se that it has ever been !relied upon to va.lidate anything. Certain Lots, Etc., v. Town of Monticello, (Fla.), 31 So. (2d) 905.

§ 165.29 HISTORY.

Comp. § 1, ch. 23615, 1947.

CHAPTER 166

Municipal Charter and Charter Amendment.


Application of section.-This section applies to the powers of every city and town of the state whether incorpomted by speciJal act or under geneml. laws :relating to the cities a.nd towns andl is a limitation upon the powers and duties which may be acquired by such municipalities through the medium of ametldi'tlg their ch!alrlters by municipal ootion. Asbell v. Green, <Fla.), 32 So. (2d) 593.

It, therefore, excludes the exercise of the power of ·amending the charter by munoictpru! ootions which do not come within the purview of this section. Id.

CHAPTER 167.

General Powers of Municipalities.


Discontinuance of streets.-See annotation to § 167.09.


Cited in St. Petersburg v. Atlantic Coast Line R. Co., 132 F. (2d) 675.


A city has authority to alter, vacate, or discontinue a street. St. Petersburg v. Atlantic Coast Line R. Co., 132 F. (2d) 675, 676.


Cited in Monticello v. Finlayson, 156 Fla. 568, 23 So. (2d) 843.


Cited in Monticello v. Finlayson, 156 Fla. 568, 23 So. <2d) 843.


This section is manifestly not intended to operate in conflict with § 313.01. State v. Friend, 152 Fla. 74, 11 So. (2d) 182, 185.


There is nothing in this section which authorizes the City of Miami to levy a tax directly ag·ainst the patrons of night clubs for exercising the privilege of indulging in the entertainment furnished by the night clubs. City of Miami v. Kayfetz, 158 Fla. 758, 30 So. (2d) 521.

§ 167.43-1 HISTORY.

Camp. §§ 1, 2, ch. 22829, 1945. Am. § 7, ch. 24337, 1947.

ANNOTATION. The tax contemplated under this section is not

a tax ·agWru;t property but is a tax authorized. by the sovereignty imposed for the benefit of the use of a sovereign franchise whic.h. all users like situated are xequired to pay. Ta.m.iami Trail Tours v. City of Tampa, (Fla.), 31 So. (2d) 463.

And it W<81S the legislative intent to make the ta.x contemplated by this section a tax not af-

[ 78]


fected by the exemptions• provided for in §323.15 although the exemptions named therein were reenacted. Id.

The effect of the language used in subsection (2) of this section was to make the provisions of this sectiODJ supersede a.nd take precedence over any legislative act then existing ox then in the course of passage which created, or attempted to create, exemption from the tax authorized by this section. Id.

Tax levied under this section held constitutional in Tamiami Trail ToUTs v. City of Tampa, (Fla.), 31 So. (2d) 468.

The provisions of this section do not repeal the provisions of §§323.15 and 323.16. Tamiami TraA.l v. C1ty of Tampa, (Fla.), 31 So. (2d) 468.

§ 167.56 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 167.63-1 HISTORY.

Comp. §§ 1-2, ch. 23795, 1947.

§ 167.72 HISTORY.

Comp. § 1, ch. 21988, 1943.

§ 167.73 HISTORY.

Comp. §§ 1-3, ch. 21701, 1943.

§ 167.74 HISTORY.

Comp. § 1, ch. 23813, 1947.

§ 167.75 HISTORY.

Comp. § 1, ch. 23978, 1947.

§ 167.76 HISTORY.

Comp. § 1, ch. 24281, 1947.

CHAPTER 168.

Police Power of Municipalities.


This section awards the city broad police powers to regulate in the interest of the general welfare, and these powers should not be stricken down, unless they run afoul of some provision of the State Beverage Act. Nelson v. State, 157 Fla. 412, 26 So. (2d) 60.

Ordinance prohibiting employment of women as barmaids to serve intoxicating liquor by the drink over the counter does not conflict with

State Beverage Act. Nelson v. State, 157 Fla. 412, 26 So. (2d) 60. I

Cited in Miami v. State, 158 Fla.. 56, 27 So. (2d) 829.


Applied in Christie v. La.ke City, 157 Fla. 335, 26 s.o. (2d) 167.


Authority independent of section.-A town, independently of its charter and this section, has authority under the police power granted to all towns to enact an ordinance prohibiting the sale of intoxicating liquors. Mears v. Stone, 151 Fla. 760, 10 So. (2d) 487, 488. --'

§ 168.12 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 168.14 HISTORY.

Comp. § 1, ch. 23974, 1947.

§ 168.15 HISTORY.

Comp. § 2, ch. 23974, 1947.

§ 168.16 HISTORY.

Comp. § 3, ch. 23974, 1947.

§ 168.17 HISTORY.

Comp. § 4, ch. 23974, 1947.

§ 168.18 HISTORY.

Comp. § 5, ch. 23974, 1947.

CHAPTER 170.

Supplemental and Alternative Method of Making Local Municipal Improvements.

§ 170.01 ANNOTATION. This chapter is valid.

As to necessity of election to validate evidences of indebtedness, see §§ 170.11 and 170.12 and notes to § 170.11.

Estoppel to question validity of liens. Property owner who acquired mortgage on

lots shortly after liens for street improvements attached and had not questioned their validity, paying assessments against other land under the same improvement plan, was estopped from questioning validity of liens in suit to foreclose liens approximately 15 years after improvement

[ 79]


project was inaugurated. Monticello v. Finlayson, 154 Fla. 274, 17 So. (2d) 84.

Proceedings held proper. Where municipal officials sitting as equaliz

ing board after due notice of meeting considered complaints and made necessary adjustment in assessments, following adoption of the requisite resolutions, plans and specifications, the record of proceedings in connection with street improvement project disclosed no defect affecting the validity of resulting liens on abutting property. Monticello v. Finlayson, 154 Fla. 274, 17 So. (2d) 84.


§ 170.02 ANNOTATION. Sufficiency of proof of special benefits.-

Compliance with requirements of this section with respect to special assessments was shown where declaration in resolutions authorizing street improvements evidenced that special benefits to the abutting property would accrue from the proposed improvements, which were prorated upon a foot frontage basis. Monticello v. Finlayson, 154 Fla. 274, 17 So. (2d) 84.

Conclusion of the witness for abutting property owner as to the unenhanced value of lots from construction of a sidewalk and paving of a street was insufficient to overcome finding of town council that all property abutting on streets to be improved would be specially benefited. Id.


Applied in Monticello v. Finlayson, 154 Fla. 274, 17 So. (2d) 84.




Section is valid.-The provisions of this section are germane to the subject expressed in the title of Chapter 9298, Laws of 1923 and are constitutional. Monticello v. Finlayson, 156 Fla. 568, 23 So. (2d) 843.


Approving vote necessary although certificates payable from special revenue fund.-Pensacola could not constitutionally issue time warrants payable only from a fund created through the discharge of liens against the specific property benefited without the favorable vote of the freeholders. Spearman Brewing Co. v. Pensacola, 136 Fla. 869, 187 So. 365, construing Acts 1923, c. 9298. See also, Clover Leaf v. Jacksonville, 145 Fla. 341, 199 So. 923, wherein it was held

that Jacksonville could not, under substantially similar arrangement as to liability for payment, issue paving certificates without the required election.

The name given the instrument issued by the city is not the proper criterion as to its validity, but rather it is whether the scheme violates the constitutional restriction against incurring indebtedness. Clover Leaf v. Jacksonville, 145 Fla. 341, 199 So. 923.

Any reasonable doubt that evidences of indebtedness may be issued without approving vote of freeholders will be resolved against the validity of such instruments. Spearman Brewing Co. v. Pensacola, 136 Fla. 869, 187 So. 365.

In considering this problem note the revision of this section made upon its incorporation into Florida Statutes, 1941.-Ed. note.



CHAPTER 171.

Contraction and Extension · of Municipal Territorial Limits; Consolidation of Taxing

Districts.


This section only affects lands that have received the benefits and are without prospect of receiving any by being in the municipality. McCombs v. West, 63 F. Supp. 469; McCombs v. West, 155 F . (2d) 601.

It does not contemplate the joining of creditors of a city in a suit brought under the same. McCombs v. West, 63 F. Supp. 469.

It is a part of bond contract.-In accord with original, see McCombs v. West, 63 F. Supp. 469.

In McCombs v. West, 63 F. Supp. 469, the court held that where exclusion judgments existed pursuant to this section, when bonds were issued by the City of Ocoee, judgments were binding on bondholders and did not impair obligations of their contracts nor deprive them of due process of law under the Fourteenth Amendment.

"Qualified electors" mean that the electors must be actually registered for voting in the city, as well as otherwise qualified, at the time the suit for exclusion is filed; so that neither citizens who might have registered but did not can be counted to make more than one hundred and fifty and so defeat the application of this section, nor can those be counted who register afterwards and before the trial. McCombs v. West, 155 F. (2d) 601.

It has to do with the exclusion of lands from small towns that never should have been included.-In accord with original, see McCombs v. West, 155 F. (2d) 601.

[ 80]



Bondholders are bound by exclusion judgments under this section, although not made parties to exclusion suit, and such judgments are not subject to collateral attack by bondholders. McCombs v. West, 63 F. Supp. 469. ·

But holders of city bonds, which were issued prior to exclusion suit, and who were not made parties to exclusion suit, are not estopped to contest the propriety of the exclusion. McCombs v. West, 155 F. (2d) 601.


Legislative ratification of extension not made in accordance with section.-Where town had statutory authority to enlarge its boundaries, the legislature had the power by statute to ratify, validate and confirm an expansion by cfty ordinances even though the extension was not carried out in the manner prescribed by this section. Sebring v. Harder Hall, 150 Fla. 824, 9 So. (2d) 350, 352.

CHAPTER 172.

Municipal Electric and Gas Plants.

§ 172.02 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 172.05 HISTORY.

Am. § 7, ch. 22858, 1945.

CHAPTER 173.

Foreclosure of Municipal Tax and Special Assessment Liens.

§ .11.3.01 ANNOTATION.

State as party to fo.recl~ure --,proceedings where title vested in state.-It is literally true that this section and ~ 196.08 grant ·authority for the foreclosure generally of city tax liens and for inclusion of the- state as a party in such proceedings, where the state also has 'a tax lien, but there seems to be no specific legislative authority to mak.e the state a party to suits for the foreclosure of ·city tax liens after fee simple title is vested in the state under §196.08 <the Murphy Act) until this consent is forthcoming the cities are powerless to enforce their claims. ·Prince Hall Masonic Bldg. Ass'n v. Jacksonville, 149 Fla. 109, 6 So. <2d) 250, 252.

It cannot be gainsaid that a city has the right to foreclose its tax liens under ' this and following sections but it is doubtful that any authority to sue the state could have been given in this law in view of the interpretation announced ·in State v. Love, 99 Fla. 333, 126 So. 374. See

Prince Hall Masonic Bldg. Ass'n v. Jacksonville, 149 Fla. 109, 6 So. (2d) 250, 251.

Applied in Certain Lands, Etc. v. Town of Lake Placid, (Fla.), 31 So. (2d) 249.

Cited in Hillsborough Inv. Go. v. '11arnpa, 149 Fla. 7, 5 So. (2d) 256; Leesburg v. Certain Lands, 154 Fla. 550, 18 So. (2d) 676; Reina v. Hope, 158 F1a. 771, 30 So. (2d) 172.


Notice provisions do not violate due process.TJre third pau-agra.ph of this section is ample to satisfy due p.l'oces.S without further notice to the land owner and would be sufficient on which to predicate sale of his lands for non-payment of ta.xes. Reina v. Hope, ·158 Fla. 771, 30 So. (2d) 172.

The provisions of this and § 194.47 a.re not identical but the requirements aJre substantially the same and what would. constitute notice sufficient to Sillltisfy the requirements of due process under one section would do likewise under the other. Smith v. Green, (Fla.), 31 So. (2d) 925.

The purpose of mailing the notice provided in the first paragraph of this s·ection, was to alert the land owner that his property is a.bout to be sold for non-payment of taxes. Reina v. Hope, 158 Fla. 771, 30 So. (2d) 172.

Publication of notice.-Liens for 1927 taxes against lands were ac

quired by the city, notwithstanding alleged failure to publish notice of meeting of equalization board where minutes of city commission disclosed that all mandatory charter provisions necessary to legalize the tax roll for the year were complied with. Leesburg v. Certain Lands, 154 Fla. 550, 18 So. ·(2d) 676.


City of Leesburg acquired liens for taxes on property for years for which assessment rolls were prepared and adopted by the city substantially .in bonformity with act of 1929 which amended the city charter. Leesburg v. Certain Lands, '154 f'Ja. 550, 18 So. (2d) 676.


Cited in Leesburg v. Certain Lands, 154 Fla. 550, 18 So. <2d) 676.

§ 173.15 HISTORY.

Comp. §§ 1, 2, ch. 2202i, 1943.

CHAPTER 174.

Civil Service for Police and Firemen in Cities and Towns of 125,000 Population, and Less.

ANNOTATION . . § '17<tOl

Cited in State v. Roark, 157 Fla. 181, 25 So. (2d) 275.

[ 81]


§ 174.07 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 174.14 HISTORY.

Am. § 7, ch. 22858, 1945.


The provisions of this chapter were held not to apply to employees of City of Pensacola in State v. Roark, 157 Fla. 181, 25 So. (2d) 275, where it was not made to appear that refer .. endwn election had been held by city.


Cited in State v. Roark, 157 Fla. 181, 25 So. (2d) 275.

CHAPTER 175.

Firemen's Relief and Pension Fund.


The purpose of the statute is to provide a system of relief for firemen and their dependents, and for no other class of employees. Jackson v. McGrath, 155 Fla. 565, 20 So. (2d) 907.


In the passage of this statute the legislature took cognizance of the existence of the general pension, annuity and retirement system of the City of Miami Beach, and intended that such system should become the agency through which funds derived by the city from the State Municipal Firemen's Pension Fund, maintained by the state treasurer as insurance commissioner, should be administered to such employees as might become lawfully entitled thereto. Jackson v. McGrath, 155 Fla. 565, 20 So. (2d) 907.

§ 175.06 HISTORY.

Am. § 1, ch. 21799, 1943.

ANNOTATION. Stated in part in Jackson v. McGrath, 155

Fla. 565, 20 So. (2d) 907.


Stated in part in Jackson v. McGrath, 155 Fla. 565, 20 So. (2d) 907.


troller out of the State Municipal Firemen's Pension Fund, such moneys are to be kept and administered by each municipality receiving the same for these exclusive purposes provided in §§ 175.11-175.13, 175.16-175.18, and for such purposes only. Jackson v. McGrath, 155 Fla. 565, 20 So. (2d) 907.

§ 175.11 A."lNOTATION.







Stated in part in Jackson v. McGrath, 155 Fla. 565, 20 So. <2d) 907.


Stated in part in Jackson v. McGrath, 155 Fla. 565, 20 So. <2d) 907.



CHAPTER 176.

Municipal Zoning.


Cited in State v. Tomlinson, 157 Fla. 471, 26 So. <2d) 338.

§ 176.06 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 176.24 HISTORY.

Am. § 7, ch. 22858, 1945.

CHAPTER 177.

Maps and Plats.

§ 177.09 It is clearly contemplated by the statute that HISTORY.

upon receipt of moneys from the state comp- Am. § 7, ch. 22858, 1945.

[ 82]


§ 177.14 HISTORY.

Comp. § 1, ch. 24303, 1947.

CHAPTER 179.

Municipal Airports.

§ 179.01 HISTORY.

Repealed by § 14, ch. 22846, 1945.

HISTORY. § 179.02

Repealed by § 14, ch. 22846, 1945.

§ 179.03 HISTORY.

Repealed by § 14, ch. 22846, 1945.

HISTORY. § 179.04

Repealed by § 14, ch. 22846, 1945.

CHAPTER 180.

Municipal Public Works.


Cited in Fort Lauderdale v. Kraft, 155 Fla. 738, 21 So. (2d) 461.


HISTORY. § 180.30

Comp. § 5, ch. 21893, 1943.

§ 180.31 HISTORY.

Comp. § 1, ch. 21893, 1943.

CHAPTER 181.

Municipal Revenue Bond Refinancing Law.

§ 181.06 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 181.08 HISTORY.

Am. § 7, ch. 22858, 1945.

CHAPTER 182.

Police Officers' Insurance and Annuities.

§ 182.03 HISTORY.

Am. § 1, ch. 22556, 1945.

§ 182.04 HISTORY.

Am. § 2, ch. 22556, 1945.

§ 182.10 HISTORY.

Am. § 3, ch. 22556, 1945.

Applied in State v. Fort Myers, 156 Fla. 681, 24 So. <2d ) 50. HISTORY.

§ 182.15


Cited in State v. Fort Myers, 156 F la . 681 , 24 So. (2d) 50.

§ 180.10 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 180.27 HISTORY.

Comp. § 2, ch. 21893, 1943.

§ 180.28 HISTORY.

Comp. § 3, ch. 21893 , 1943.

§ 180.29 HISTORY.

Comp. § 4, ch. 21893, 1943.

Am. § 4, ch. 22556, 1945 . .

§ 182.21 HISTORY.

Am. § 5, ch. 22556, 1945.

TITLE XIII.

TAXATION AND FINANCE.

CHAPTER 192.

Taxation General Provisions.


Cited in Simpson v. Hirshberg, (Fla .) , 30 So. (2d) 912.

§ 192.06 HISTORY.

Am. § 1, ch. 21742, 1943. Am. § 1, ch. 23082, 1945.

[ 83]


ANNOTATION.

I. IN GENERAL.

The predominant word is "use"; the utilization of the property is the criterion in determining its liability or nonliability for taxes. Riverside Military Academy v. Watkins, 155 Fla. 283, 19 So. (2d) 870.

Exemptions from taxation ~ strictly construed and the property claimed to be exempt must clearly be within the exemptions. Wolfson v. Heins, 149 Fla. 499, 6 So. (2d) 858, 860.

The theory on which lands are exempted from taxation under subsection <1) is that they are held and used for municipal, educational, scientific, lite<ra.Ty, religilous, 01r chruri:table purposes. Bancroft Inv. Corp. v. Jacksonville, 157 Fla. 546, 27 So. (2d) 162.

The property that is sold by Federal Government under an executory contract, where government retains legal title until purchase price is paid and purchaser goes into possession of land and uses land for private purposes, loses its exemption from state and municipal taxes. Id.

Cited in Saunders v. Jacksonville, 157 Fla. 240, 25 So. (2d) 648. ·

II. PARAGRAPH (2)-COUNTIES, MUNICIPAL CORPORATIONS, ETC.

Enjoying imposition of tax.-Federal court has jurisdiction of U. S. Government's action to enjoin officers of county from imposing tax on government property exempt under this section. United States v. Okaloosa County, 59 F. Supp. 426.

m. PARAGRAPH (3) -EDUCATIONAL, LITERARY, ETC., INSTITUTIONS.

704, 24 So. (2d) 237; see also Johnson v. Sparkman, <Fla.), 31 So. (2d) 863.

For the exemption to hold under subsection (3) of this section, the proceeds from the rented portion must also be used for some one of the named pUTpooes. Simpson v. Bohon, (Fla.), 31 So. (2d) 406.

Property exempt from taxation under article IX, §1 of the constitution for charitable and educatiooal purposes has reference only to such property as is dediooted to the public and used exclusively for that purpose or to such extent as thds section defines. Johnson v. Sparkman, <Fla.), 31 So. <2d) 863.


Cited in Rappaport v. Kalstein, 156 Fla. 722, 24 So. (2d) 301.


This section does not supersede § 7, Article X, Florida Constitution as amended in 1938. Smith v. Voight, 158 Fla. 366, 28 So. (2d) 426.


This section does not supersede § 7, Article X, Florida Constitution as amended in 1938. Smith v. Voight, 158 Fla. 366, 28 So. (2d) 426.

§ 192.16 HISTORY.

Am. § 1, ch. 21876, 1943.

§ 192.21 Cross reference.-See annotation to Fla. HISTORY.

Const., Art. XVI, U6. Am. § 1, ch. 22079, 1943. Purpose of this paragraph.-The very purpose

of this paragraph was to give tax assessors a pattern to guide them in assessing or exempting such properties. State v. Doss, 150 Fla. 486, 8 So: (2d) 15, 16, holding that the pattern prescribed by this paragraph was reasonable and well within the power of the legislature to prescribe.

And the right to exemption, etc. The right to exemption is determined by use

the property is put to and net by the character of the corporate owner. State v. Doss, 150 Fla. 486, 8 So. (2d) 15, 16.

Subsection is valid.-Subsection (3) of this section is clearly within the terms of § 1, Art. IX, Florida Constitution and is not in violation of § 16, Art. XVI. Rogers v. Leesburg, 157 Fla. 784, 27 So. (2d) 70.

Use of property must bring case within section. -To claim the exemption from taxation as provided in subsection (3), the property must be actually held and used exclusively for one or more of the purposes stated therein. Dr. William Howard Hay Foundation v. Wilcox, 156 Fla

ANNOTATION.


The title of Chapter 20722, Acts 1941, was held sufficient to meet the requirements of § 16, Art. III of the Florida Constitution. Rudisill v. Tampa, 151 Fla. 284, 9 So. <2d) 380.

Nature and purpose of section.-This section should not be construed as in

validating tax sale certificates held by individuals which certificates were more than two years old. The purpose of this section would be greatly facilitated by construing it as accelerating the time in which holders of individual tax sale certificates may be required to bring suit to foreclose them and perfect their title. Pinellas County v. Banks, 154 Fla. 582, 19 So. (2d) 1.

If the individual holder of tax sale certificates does not elect to foreclose his tax sale certificate in the manner prescribed, he becomes a party defendant to the county's suit to foreclose under this section. In such event, he will be relegated to his right under the law to participate ratably with other lien holders in the proceeds of any sale by the county commis-

[ 84]


sioners as provided by § 13, chapter 22079 unless prior to entry of the final decree in the suit by the county to foreclose he applies for and is granted a tax deed in the manner provided by law. Id.

This section shows an intent to continue in full force and effect until discharged all outstanding liens for taxes. Id.

One of the principal purposes of this section was to stabilize tax titles and restore tax certificated lands to the tax rolls. Id.

Chapter 22079, acts 1943, from which this section derives, was not designed to punish the man who makes an honest endeavor year after year to pruy his taxes, nor as a ruse to cut one loose from a title that he was offering yea.r af.ter ye&to preserve. Whittington v. Davis, (Fla.), 32 So. (2d) 158.

This section and § § 194.53 and 194.54 were parts of chapter 22079, ,acts of 1943, and all should be construed as in P·ari materia or so as to give such a field of operation. Id.

Special tax antimosquito district and its officers were under obligations to impose and collect the tax for the administration of the district and such obligation was a continuing one until performed, there being no claim that the tax would be unreasonable or confiscatory. State v. Gessner, 153 Fla. 865, 16 So. <2d) 51.

Mandamus to compel taxing officials of special tax antimosquito control district to assess and collect budget taxes for preceding year was appropriate where it was shown that such levy would not exceed the millage provided by law for any one year. Id.

Time provided for institution of suit to invalidate assessment not unrea.sonable.-While the time provided by this section for institution of suit to invalidate an assessment may appear relatively short, nevertheless it cannot be said that the time fixed is so unreasonable as to amount to depriving taxpayer of his property without due process. Rudisill v. Tampa, 151 Fla. 284, 9 So. (2d) 380, 381, decided under former provision allowing only thirty days from time assessment became final.

Subrogation to state or county tax Iien.-See Hillsborough Inv. Co. v. Tampa, 149 Fla. 7, 5 So. (2d) 256; Goodwin v. Schmidt, 149 Fla. 85, 5 so. (2d) 64.

Title to lands quieted in county.-A municipalLty has no legBJl right to proceed by in rem proceedings against lands to enforce its past due taxes and improvement liens when ·the title to said lands has been quieted in the oounty under the provisLons of §194.47, silnce the county holds title to such lands for itself and ·as trustee for the city in interest proportionate to the respective tax claims. City of St. Petersburg · v. Certain Land:s, etc'., 15'8 Fla. 377, 28 So. (2d:) 537.

Quoted, in part, in United Brotherhood of Carpenters, etc. v. Graves Inv. Co., 153 Fla. 529, 15 So. (2d) 196.

Cited in Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 20.1; State v. Miathas, 157 Fla. 622, 26 So. (2d) 652.

Applied in Goodman v. Carter, 158 Fla. 112, 27 So. (2d) 748; Tind!Ril v. Griffin, 157 Fla. 156, 25 So. (2d) 200; Scott v. Scott, 158 Fla. 781, 30 So. (2d) 620 (dis. op.).

II. ACTS OF OFFICERS OR NEWSPAPERS NOT TO DEFEAT PAYMENT.

An illegal assessment of taxes upon land may be amended, etc.

In accord with ori!iinal. See Fort Myers v. Heitman, 149 Fla. 203, 5 So. (2d) 410.

And an error in assessment, although not corrected, does not affect authority to collect tax. -If errors in making tax assessments on the rolls are not corrected, that does not affect the duty to pay or the authority to collect the tax when it is duly authorized by law, though an error in making the assessment on the tax roll may render the assessment defective as a muniment of title for purchasers of the property. And such errors in assessments may be excessive or discriminatory valuations of property for assessment or in stating the name of the owner on the tax rolls. Fort Myers v. Heitman, 149 Fla. 203, 5 So. (2d) 410, 413.

III. SALES VALID.

Redemption by original owner.-If prior to decree in suit by county to quiet

title, and before original tax · deed issues, the original owner redeems the land, the tax deed applicant must be reimbursed for additional taxes paid by him in the manner provided by law for redemptions. Pinellas County v. Banks, 154 Fla. 582, 19 So. (2d) 1.

At any time prior to the final decree in the suit by the county to quiet its title, the holder of a state or county tax sale certificate may redeem any other unpaid taxes from the clerk of the court in the same manner as the owner, and make application for a tax deed, thus removing the property from the operation of the proceedings ·to quiet title. Id.

§ 192.29 HISTORY.

Am. § 1, ch. 22999, 1945.

§ 192.30 HISTORY.

Am. § 2, ch. 22999, 1945.

§ 192.31 HISTORY.

Am. § 22, ch. 22079, 1943.

ANNOTATION. Cited iJn City of St. Petexsburg v. Certain Lands,

etc., 158 Fla. 377, 28 So. (2d) 537; Whittington v. Davis, (Fla.>, 32 So. (2d) 158.

[ 85]



General Consideration. The Murphy Act, Chapter 18296, acts of 1937,

contemplates that the purchaser of tax certificates, when the same are redeemed, shall be reimbursed for these expenditures .in full without interest, and that interest be paid only on the amount paid for the certificate from its date. Pent v. Forest Hills Holding Corp., 152 Fla. 190, 5 So. (2d) 873, 875.

The consent of the state to be sued does not extend to the lands to which the state has title under Chapter 18296, Acts 1937 <the Murphy Act). Prince Hall Masonic Bldg. Ass'n v. Jacksonville, 149 Fla. 109, 6 So. (2d) 250, 255.

La.nds held by the state under the Murphy Act are not "public lands" under §4, Art. XII, and § 5, Art. XVI of the Florida Constitution and are not subject to donations to settlers in eighty acre tracts or otherwise used for sale or for purposes to which vacant public lands are suitable and used under the laws of the state. State v. Holland, 151 Fla. 806, 10 So. (2d) 577, 591.

An application for the sale of tax certificates contemplates: {a) a written request containing a description of land covered by such certificate sought to be purchased and the same made or presented to the clerk; (b) the costs of advertising shall by the applicant be deposited with the clerk, or a satisfactory financial arrangement be made with the clerk for the payment of such costs; (c) the duties imposed on the clerk by the terms of the act shall be by him diligently and faithfully performed or discharged. Peninsula Land Co. v. Howard, 149 Fla. 772, 786, 6 So. (2d) 384, 386.

The filing of a bona fide application with the clerk for a sale of certificates under the Murphy Act was held to have the legal effect of suspending the provisions of § 194.11, and the clerk was without authority to proceed thereunder, but should proceed with sale of certificates under the provisions of the Murphy Act. The pendency of the application also suspended a reversion of the tax certificates to the state under the Murphy Act. Peninsula Land Co. v. Howard, 151 Fla. 763, 10 So. (2d) 484, 486. See also, 149 Fla. 772, 786, 6 So. <2d) 384.

Liability of clerk allowing redemption for less than lawful amount.-If clerk of circuit court allowed redemption of certificates for less than the lawful amount required to redeem the same, such clerk became answerable for the deficiency due the purchaser. Pent v. Forest Hills Holding Corp., 152 Fla. 190, 5 So. (2d) 873, 875.

Collection of costs. The word "costs" as used in § 6 of the Mur

phy Act, Chapter 18296, acts of 1937, is an all inclusive term intended to cover any items, or fee or cost of whatsoever nature that was required to be paid, in addition to the purchase

price of the certificate, before the certificate was issued. Pent v. Forest Hills Holding Corp., 152 Fla. 190, 5 So. (2d) 873, 875.

Applied in Boston, etc. Land Co. v. Alford, 150 Fla. 296, 8 So. <2d) 483.

Cited in Prince Hall Masonic Bldg. Ass'n v. Jacksonville, 149, Fla. 109, 6 So. (2d) 250; State v. Everglades Drainage Dist., 155 Fla. 403, 20 So. (2d) 397; State v. Broward Drainage Dist., 155 Fla. 407, 20 So. (2d) 399; State v. Lake Worth Drainage Dist., 155 Fla. 408, 20 So. (2d) 399; Trustees of the Internal Improvement Fund v. Beach, 141 F. (2d) 993, 995; June Sand Co. v. Devon Corp., 156 Fla. 519, 23 SC>. (2d) 621; J<aCkson v. Lake Worth, 156• FLa. 452, 23 So. (2d) 526; Steele v. Freel, 157 Fla. 223, 25 So. (2d) 501; United States v. Certain Lands, 70 F. Supp. 434; Royal Ins. Co. v. Smith, 158 FlaA72, 29 So. (2d) 244.


See generally, Haynes v. Woodward, 154 Fla. 111, 16 So. (2d) 736; State v. Everglades Drainage Dist., 155 Fla. 403, 20 So. (2d) 397; State v. Broward Drainage Dist., 155 Fla. 407, 20 So. <2d) 399 ; State v. Lake Worth Drainage Dist., 155 Fla. 408, 20 So. (2d) 399.

Section held valid in Stew•a.rt v. Powell, 158 Fla. 420, 28 So. <2d) 879.

Cited in United States v. Certain Lands, 70 F. Supp. 434; Roy& l!ns. Co. v. Smith, 158 Fla. 472, 29 So. (2d) 244.

Stated in Young v. Ewing, 151 Fla. 353, 9 So. (2d) 716.


Cited in United States v. Oertain Lands, 70 F. Supp. 434; Royal Ins. Go. v. Smith, 158 F1a. 472, 29 So. (2d) 244.

§ 192.38 HISTORY.

Am. § 1, ch. 21684, 1943.

ANNOTATION. Cross reference--As to equal dignity of state .

and drainage taxes, see annotations under § 298.41. Trustees of Internal Improvement Fund v. Southwest Tampa Storm Sewer Drainage Dist., 142 F. (2d) 637.

And is not unconstitutional. This section was held valid as against the

contention that it takes property without due process of law, contrary to the Fourteenth Amendment, and impairs previous mortgage contract contrary to Art. I, § 10, of the Constitution of the United States. Alexander v. United States, 128 F. (2d) 82, 83.

This section is in effect a limitation law which gave all persons interested in lands against which the state held tax certificates two years or more old, another two years to redeem by proceeding under the act, and thereafter bars

[ 86]


them. Alexander v. United States, 128 F. (2d) 82, 84.

, Tax collector's right to commissions.-As to tax collector's right to commissions where lands reverted to the state by virtue of chapter 18296, acts of 1937 <§§ 192.35-'1.92.38, Fla. Stats., 1941), see State v. Holland, 149 Fla. 304, 5 So. (2d! 604.

Applic~tion.

Where tax sale certificates to the state were over two years old when the Murphy Act became a law, two years later the land covered by them became absolutely the property of the state, since neither the former owner nor the lienholder had caused them to be sold under the act. Alexander v. United States, 128 F. (2d) 82, 84.

General effect of reversion for nonpayment of taxes.-Under this section when property reverts to the state for nonpayment of taxes, every right, title or interest of every kind or nature of the former owner of the land, his privies, and private lien holders thereupon ceased, ter.minated and came to an end; and the right of such persons to redeem the lands or claim any interest therein by virtue of a prior title, interest or lien became extinguished. Jun,e Sand Co. v. Devon Corp., 156 Fla. 519, 23 So. (2d) 621.

Under this section the sale of the lands by the trustees of the internal improvement fund, if held and conducted in full accordance with the statutes, rules and regulations controlling such matters, the title acquired from the State of Florida was a fee simple title to the lands sold, divested of any claim of right, title or interest of the former owner or his privies, and free from liens of private lien holders, and subject only to such liens in favor of other taxing units as existed under valid taxation statutes at the time the land became the property of the State of Florida under the Murphy law. June Sand Co. v. Devon Corp., 156 Fla. 519, 23 So. (2d) 621.

Oil and Mineral Reservations.-The trustees of ·tJhe interlli3ll improvement fund have authority under subsection (2) to make reservations of oil and! mineral in deeds of sail.e of land acquired undier this section. Caldwell v. Kemper, (Fla.), 31 So. (2d) 555.

And §270.11 in no way affects or controls the sale of l>ands vesting in the state nndex this section. Id. ·

Applied in Young v. Ewing, 151 Fla. 353, 9 So. (2d) 716.

Cited in And[·ews v. Andrews, 155 Fla. 654, 21 So. (2d) 205; Jackson v. Lake Worth, 156 Fla. 452, 23 So. (2d) 526; United States v. Certab l.Jands, 70 F. Supp. 434; Royal Ins. Co. v. Smith, 158 F1a. 472, 29 So. (2d) 244.


This section in effect makes liberal concessions and releases to municipalities and has not

been shown to be unconstitutional. State v. Holland, 151 Fla. 806, 10 So. (2d) 577, 592.


Cited in State v. Holland, 151 Fla. 806, 10 So. (2d) 577.

§ 192.47 HISTORY.

Camp. § 1, ch. 21685, 1943.

ANNOTATION. Applied in Royal Ilns. Co. v. Smith, 158 Fla.

472, 29 So. (2d) 244.

§ 192.48 HISTORY.

Comp. § 2, ch. 21685, 1943. Am. § 1, ch. 23827, 1947.

ANNOTATION. Applied in Royal Ins. Co. v. Smith, 158 Fl>a.

472, 29 So. (2d) 244.

§ 192.49 HISTORY.

Camp. § 3, ch. 21685, 1943.

§ 192.50 HISTORY.

Comp. §§ 1-3, ch. 21929, 1943.

§ 192.51 HISTORY.

Camp. § 1, ch. 21919, 1943.

§ 192.52 HISTORY.

Comp. § 1, ch. 21985, 1943.

ANNOTATION. Section is constitutional. Saunders v. Jackson

ville, 157 Fla. 240, 25 So. (2d) 648. · The exemption within this statute inures to

the property itself when held and used for municipal purposes and the constitution makes no requirement as to its location. Id.

§ 192.53 HISTORY.

Comp. §§ 1, 2, ch. 21644, 1943.

§ 192.54 HISTORY.

Camp. § 1, ch. 21842; 1943.

§ 192.55 HISTORY.

Camp. §§ 1-4, ch. 21880, 1943.

§ 192.56 HISTORY.

Camp. § 2Y2. ch. 22079, 1943.

[ 87]

§ 192.57 1947 CUMULATIVE SUPPLEMENT TO VOLUME U, FLORIDA STATUTES, 1941

ANNOTATION. Cited in City of St. Petensburg v. Certain

Lands, etc., 158 F1a. 377, 28 So. (2d) 537; Whittington v. Davis, <FLa.), 32 So. (2d) 158.

§ 192.57 HISTORY.

Comp. §§ 1, 2, ch. 21950, 1943.

§ 192.58 HISTORY.

Comp. § 1, ch. 21805, 1943.

§ 192.59 HISTORY.

Comp. §§ 1, 2, ch. 22845, 1945.

CHAPTER 193.

Tax Assessments and Tax Sales.

§ 193.03 HISTORY.

Am. § 24, ch. 22079, 1943.

ANNOTATION. Cited in City of St. Petersburg v. Certain

Lands, etc., 158 F1a. 377, 28 So. (2d) 537; Whittington v. Davis, <FLa.) , 32 So. (2d) 158.



§ 193.11 HISTORY.

Am. § 2, ch. 22079, 1943.

ANNOTATION. Assessor should assess all property at its "full"

cash value.-A tax assessor should endeavor to comply with this section and assess all property at its "full" cash value. Schleman v. Connecticut General Life Ins. Co., 151 Fla. 96, 9 So. (2d) 197, 200.

The provisions of this section pertaining to fixation of values by the assessor, shows that the legislature intended to standardize tax procedure and make it of a uniform application throughout the state. The command to the assessors to use "full cash value" as a yardstick should be obeyed. Id.

Subsequent to the adoption of Art. X, § 7, the practice of assessing property has been in con· formity with this section, that is at one hundred per cent of its true cash value. Cosen Inv. Co. v. Overstreet, 154 Fla. 416, 17 So. (2d) 788.

But considerable leeway should be granted assessor.-Because of the difiiculty of fixing with certainty the "full cash value" of property, considerable leeway should be granted the official whose duty it is to make assessments. Schleman v. Connecticut General Life Ins. Co., 151 Fla. 96, 9 So. (2d) 197, 200.

And it is presumed that assessor complied with law.-It will be presumed, in the absence of express allegations to the contrary, that the tax assessor complied with the law, and hence did not assess other property at a valuation in excess of its cash value. Schleman v. Connecticut General Life Ins. Co., 151 Fla. 96, 9 So. (2d) 197, 200.

Showing of right to relief. A taxpayer may, where he alleges gross over

assessment and substantiates his allegation with proof, prevail in suit to enjoin collection of taxes on assessed valuation without the additional burden of showing discrimination against him. Schleman v. Connecticut General Life Ins. Co., 151 Fla. 96, 9 So. (2d) 197, 200.

Where taxpayer expressly alleged that assessor arbitrarily assessed his property in an amount flagrantly in excess of its cash value, proof of such allegations would overcome presumption that taxing official complied with the law in making the assessment. Id.

(:ited in City ·Of St. Petersburg v. Certain Lands, etc., 158 Fla. 377, 28 So. (2d) 537; Whittington v. Davis, (Fla.), 32 So. (2d) 158.


Applied in Robins v. Daniel, 151 Fla. 199, Y So. (2d) 381.

§ 193.16 HISTORY.

Am. § 3¥2, ch. 22079, 1943.

ANNOTATION. This section vested title in the county to all

lands on which the taxes had not been paid and to which there was in the hands of the clerk of the circuit court a tax sale certificate more than two years old. Any certificate in the hands of the clerk more than two years old also constitutes a predicate for the chancery proceeding under § 194.47 and should be included in the list certified to the county commissioners under that section. Leon County v. Crawford, 153 Fla. 604, 15 So. (2d) 321, 322.

This section does not cancel nor discharge certificates issued for delinquent taxes assessed for the year 1940 or prior years. Platt Cattle Co. v. Stott, 157 Fla. 286, 25 So. (2d) 655.

Cited in City of St. Petersburg v. Certain Lands, etc., 15181 Fla. 377, 28 So. (2d) 537; Whittington v. Davis, (Fla.) , 32 So. (2d) 158.


There is nothing in this section to restrain the tax assessor from assessing contiguous lands separately. Wolfson v. Heins, 149 Fla. 499, 6 So. (2d) 858, 860.

§ 193.21 HISTORY.

Am. § 3, ch. 22079, 1943.

[ 88]


ANNOTATION. Assessment not invalidating tax deed.-Where .

a private street was assessed as a whole, although under assumption the northern side of it would be owned by one person and the southern by another, it being admitted that no return for taxation was made, the assessment as made would not invalidate the tax deed issued thereunder. Wolfson v. Heins, 149 Fla. 499, 6 So. (2d) 858, 860.

Cited in CHy of St. Petersburg v. Certain Lands, etc., 158 Fla. 377, 28 So. (2<11) 537; Whittington v. Davis, <Fla.), 32 So. (2d) 158.


Cited in Bancroft Inv. Corp. v. Jacksonville,

will be paid. Consolidated NavaJ Stores C'o. v. Hendry, 158 Fla. 865, 30 So. (2d) 617.

Economic conditions over the country, the indiootions pointing to whether the state will have few or many winter visitors, the proportion of thooe who a.re liberal or conservative spenders, and the average returns from racing over a period of yeatrs and tJhe factors that cause them to fiuctuate are factors that may be considered. Id.

The county commissioners are vested with discretion as to determining the amount of ad valorem taxes to be imposed for all county purposes, but ·always their discretion must be prediooted on ~reason as revealed from substantial facts and not on mere fiat or capric·e. Consolidated Naval Stores Co. v. Hendry, 158 Fla. 865, 30 So. (2d) 617.

157 Fla .. 546, 27 So. (2d) 162. ANNOTATION. § 193.38


Cross reference.-See annotation to § 200.16.

Chapter 200, relating to tangible personal property taxation, does not repeal this section. Robins v. Daniel, 151 Fla. 199, 9 So. (2d) 381.


Place of holding meeting to hear eomplaints.Fact that meeting to hear complaints, etc., under this section, was not held in the clerk's office but in the county commissioners' room, which was in accordance with the published notice, did not render tax deed void, where assessment of land in question was not increased and taxpayer was not injured thereby. Clements v. Starbird, 152 Fla. 555, 12 So. (2d) 578, 579.

§ 193.29 HISTORY.

Am. § 4, ch. 22079, 1943.

ANNOTATION. When assessment shall become finai.-See

Rudisill v. Tampa, 151 Fla. 284, 9 So. (2d) 380, construing former law.

Cited in Coughlin v. Browa.rd Oounty, 156 Fla. 298, 22 So. (2d) 814; City of St. Petersburg v. Certain. Lands, etc., 158 FLa. 377, 2·8 So. (2d) 537; Whittington v. Davis, <F~a.), 32 So. (2d) 158.


In the case of Poole v. Devane, 113 Fla. 53, 54, 151 So. 313, the supreme court held in effect that a resolution of the county commissioners which was in substantial compliance with this section was prima facie correct. Clements v. Starbird, 152 Fla. 555, 12 So. (2d) 578, 581.

In estimating for the county budget, the county commissioners ma.y anticipate that 95 per cent of raJ! illldi villllorem taxes extended on the tax 1-olls

The statute does not require abutting private streets to be included by inference or otherwise in assessments expressly covering only lots in a city subdivision. Wolfson v. Heins, 149 Fla. 499. 6 So. (2d) 858, 861.

§ 193.41 HISTORY.

Am. § 6, ch. 22079, 1943.

ANNOTATION. Cited in City of St. Petersburg v. Certain Lands,

etc., 158 Fla. 377, 28 So. (2d) 537; Whittington v. Davis, (Fla.), 32 So. (2d) 158.

§ 193.50 HISTORY.

Am. § 5, ch. 22079, 1943.




Commissions where lands reverted to state. -As to tax collector's right to commissions Vthere lands reverted to the state by virtue of chapter 18296, acts of 1937 <§§ 192.35-192.38, Fla. Stats., 1941), see State v. Holland, 149 Fla. 304, 5 So. (2d) 604.

§ 193.59 HISTORY.

Am. § 7, ch. 22079, 1943.


etc., 158 Fla. 377; 28 So. (2d) 537; Whittington v. Davis, <Fla.), 32 So. (2d) 158.


Section is direetory.-Under the provisions of § 192.21, this section is declared to be directory only and is not a ground which may be asserted

[ 89]

.§ 193.63 1947 CUMULATIVE SUPPLEMENT TO VOLUME II, FLORIDA STATUTES, 1941

to defeat a tax deed . Tindell v. Griffin, 157 Fla. 156, 25 So. (2d) 200.

Applied in Platt Cattle Co. v. Stott, 157 Fla. 286, 25 So. (2d) 655.

§ 193.63 HISTORY.

Am. § 10, ch. 22079, 1943.


etc., 158 Fl!lil. 377, 28 So. (2d) 537; Whittington v. Davis, (Fla.), 32 So. (2d) 158.


In general.-The plain meaning of this section Is that while an individual holding a certificate must wait two years, and apply for a deed and give notice thereof, before redemption is cut off by the issuing of a deed, the state obtains title by the mere lapse of two years. Alexander v. United States, 128 F. (2d) 82, 84.

There is no conflict between this section and § 194.02, the one applying to individual holders and the other to the state. Alexander v. United States, 128 F. (2d) 82, 84.

§ 193.65 HISTORY.

Am. §§ 1, 2, ch. 21918, 1943.

§ 193.76 HISTORY.

Comp. §§ 1-2, ch. 24305, 1947.

CHAPTER 194.

Ta.x Sale Certificates and Tax: Deeds.

§ 194.01 HISTORY.

Am. § 9, ch. 22079, 1943.

ANNOTATION. The general purpose of Chapter 20722, Acts of

1941, and Chapter 22079, Acts of 1943, was to provide a method of sale that would free the lands from all state, county, and municipal liens, for nonpayment of taxes including improvement9, to provide a judicial proceeding to quiet and vest title in the county, to strengthen tax titles, to return the lands to the tax rolls as speedily as possible, and to provide a better system to deal with delinquent taxes as between counties and municipalities. Leon County v. Crawford, 153 Fla. 604, 15 So. (2d) 321, 322.

Cited in City of St. Petersburg v. Certain Lands, etc., 158 F'Lru. 377, 28 So. (2d) 537; Whittington v. Davis, (Fla.), 32 So. (2d) 1'58.

§ 194.02 HISTORY.

Am. § 8, ch. 22079, 1943.

ANNOTATION.


There is no conflict between this section and § 193.64, the , bne applying to individual holders and the other to the state. Alexander v. United States, 128 F. (2d) 82, 84.

Stated in part in Steel v. Freel, 157 Fla. 223, 25 So. (2d) 501.

Cited in City of St. Petersburg v. Certain Lands, etc., 158 Fla.. 377, 28 So. (2d) 537; Whittington v. Davis, (Fla.) , 32 So. (2d) 158.


When the court decrees what is a proper valuation, then that becomes the legally assessed value of the property and is in law the assessor's valuation. Blume v . . McMullen, 154 Fla. 494, 18 So. (2d ) 31.

ANNOTATION. § 194 .. 11

The statute contemplates payment in cash. Peninsula Land Co. v. Howard, 149 Fla. 772, 786, 6 So. (2d) .384, 390, discussing right of deputy clerk to accept check.

Effect of petition for sale of certificates under Murphy Act.-As to suspending the provisions of section by filing an application for a sale of certificates under the Murphy Act, see Peninsula Land Co. v. Howard, 151 Fla. 763, 10 So. (2d) 484, 486, treated under § 192.35.

The first sentence of this section pertains to a method of proving the assignment of the certificate, and the holder of an unendorsed certificate may obtain a tax deed. Tindell v. Griffin, 157 Fla. 156, 25 So. (2d) 200.


A tax deed is not shown to be void or voidable on account of any failure on the part of the clerk to comply with this section. Dudemaine v. Shaw, 153 Fla. 899, 16 So. (2d) 114.

The clerk of the circuit court is not required t o search through all pending cases to ascertain whether property is involved in any particular mortgage foreclosure suit, and whether the name and address of holder of the mortgage appears on the court record. Id.


Description of land in application for tax deed held· fatally defective. See Kester v. Bostwick, 153 Fla. 450, 15 So. <2d) · 208.

Written application for deed not e5sential.Under this section it is unnecessary for applicant · to sign a written application to the clerk for the issuance of · a tax deed. Platt Cattle Co. v. Stott, 157 Fla. 286, 25 So . . (2d) 655.

If ·a purchaser bought the certificate for the face value :thereof with interest and charges and

[ 90]


paid the clerk for it and received the certificate, he became the owner and holder of that certificate, although unendorsed, and under the provisions of this section was entitled as such holder to apply for a tax deed. Tindell v. Griffin, 157 Fla. 156, 25 So. (2d) 200.

The provisions of §194.54, as amended in 1943, must be read in pari materia with this section just as if the language used in §194.54 had been in tJhe original act. Gottens'tlrater v. PaiT'amore, (FLa.), 31 So. (2d) 267.

Applied in Luioon v. Duvane Corp., 158 Fla. 634, 29 So. (2d) 627.

Cited in Kester v. Bostwick, 153 Fla. 437, 15 So. <2d) 201; Alexander v. United States, 128 F. (2d) 82.


The form of publication prescribed in this section is almost identical with the form prescribed by § 2 of Chapter 17457, Acts of 1935, but this section governs. Goodman v. Carter 158 Fla. 112, 27 So. (2d) 748.

Allegations were insufficient to show a lack of notice and consequent deprivation without due process. Tindell v. Griffin, 157 Fla. 156, 25 So. (2d) 200.

Stated in Beaty v. Inlet Beach, 151 Fla. 495, 9 So. <2d) 735.

Cited in Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201; Alexander v. United States, 128 F. (2d) 82.


Stated in Beaty v. Inlet Beach, 151 Fla. 495, 9 So. (2d) 735.

§ 194.18 HISTORY.

Am. § 11, ch. 22079, 1943.

ANNOTATION. See the note to § 194.16.

In generaL-This section must be read in pari materia with

§ 194.14. Dustin v. Latzko, 155 Fla. 824, 21 So. (2d) 904.

Clerk does not have to check pending cases.-The provisions of this section do not require

the clerk to se1arch through all the etases·pending in the circuit court to ascertain if the property is involved in pending or other litigation. Dudemaine v. Shaw, 153 Fla. 899, 16 So. (2d) 114.

Failure of clerk to mail notice of application for tax deed to owner, although basis for suit to set aside tax deed, did not relieve complainant of burden of overcoming by evidence the prima facie effect of the instrument. Clark v. Groves, 154 Fla. 13, 16 So. (2d) 340.

Statutory presumption that notice was given prevailed, although witness testified he had not

received statutory notice to owner of tax deed and later contradicted himself. Clark v. Groves, 154 Fla. 13, 16 So. (2d) 340.

No record of the mailing of notice of application for tax deed to the owner is required of the clerk of court. Id.

Mailing of notice as jurisdictiona.l.-Under the former provisions of this section, prior to the 1941 and 1943 amendments, it was jurisdictional that the notice of application for tax deed be mailed to the owner of the property at the time application was made, if the address was known to the clerk, and failure in this respect rendered tax deed void. See Beaty v. Inlet Beach, 151 Fla. 495, 9 So. (2d) 735, 742; Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201.

Onus placed on mortgagee to make his address known to clerk.-In view of § 194.40, it appears that the onus is placed on the mortgagee to make his address known to the clerk by making it a part of his records; and it is not the duty of the clerk to go beyond the records in his office to locate such address when giving notice of application for tax deed. Beaty v. Inlet Beach, 151 Fla. 495, 9 So. (2d) 735, 743.

Notice should be mailed to directors of dissolved corporation.-Under the former provisions of this section it was held that notice of application for tax deed should have been mailed to the directors of a dissolved corporation a.nd not to the corporation itself and failure to do so rendered tax deed void. Beaty v. Inlet Beach, 151 Fla. 495, 9 So. (2d) 735, 742. ·

Cited in Alexaiilder v. United States, 128 F. (2d) 82; City of St. Petersburg v. Certain Lands, etc., 158 Fla. 377, 2181 So. (2d) 537; Whittington v. Davis, (Fla.), 32 So. (2d) 158.


Quoted in part in Goodman v. Oarter, 158 Fla. 112, 27 So. (2d) 748.


Editor's note.-In State v. Cabot, 158 Fla. 190, 27 So. (2d) 696, the tax deeds were held sufficient .rulthoug:h not conforming with the requirements of this section. This oose as Teported, shows only affirmed and only the court recordr on file will show tlhe procedure.

As to former provisions see Goodman v. Carter, 158 Fla. 112, 27 So. (2d) 748.

The statutory presumption that notice was given to the owner of an application for tax deed prevailed, where chancellor found that no record of mailing notice was required to be kept, and the testimony of the witness relative to receipt of · notice was unsatisfactory. Clark v. Groves, 154 Fla. 13, 16 So. (2d) 340.


Where land was conveyed by warranty deed, and grantor paid taxes which were alleged to

[ 91 ]

§ 194.40 1947 CU.l\IULATIVE SUPPLEMENT TO VOLUME U, FLORIDA STATUTES, 1941

be void to "satisfy the warranty of title," grantor did not become a "holder of any void tax sale certificate" as contemplated by this section, but was a "taxpayer" who had freed from the tax burden, lands lately sold with title warranted, and could not invoke the remedy provided for in this section. United Land, etc., Co. v. Baker, 149 Fla. 170, 5 So. (2d) 266, 267.


·See annotation to § 194.18.

§ 194.45 HISTO~l.Y.

Am. § 12, ch. 22079, 1943.

ANNOTATION. Cited in City of St. Petersburg v. Oertain Lands,

etc., 158 Fllll!. 377, 28 So. (2d,) 537; Whittingtoo v. Davis; <FI<a,J, 32 So. (2d) 158.

§ 194.47 HIS'.fORY.

Am. § 13, ch. 22079, 1943. Am. § 7, ch. 24337, 1947.

ANNOTATION. The purpose of this section was to provide a

complete delinquent tax list as of the date of the expiration of the two-year period from the date the tax sale certificate was issued. It would seem to require that subsequent purchases of tax sale certificates be included in the certified list and that they be eliminated by the final decree rather than by the clerk. Leon County v. Crawford, 153 Fla. 604, 15 So. (2d) 321, 322.

This section when read in connection with succeeding sections shows that it was designed to deal only with certificates held by the state, county or municipality and was not intended to affect those in the hands of individuals. Pinellas County v. Banks, 154 Fla. 582, 19 So. (2d) 1.

Under this section the county takes title to land for itself ·and as trustee for the city in interests proportionate to the respective tax c'Laims of the county aiild of the city and to provide that each of those taxing units s.bouldJ be relieved from the assessments ti.IIld collection of taxes on the Lands while they are so held did not constitute an exemption from taxation ·but merely a suspension of the process of ta.xatioo while the truxes were held for the joint benefit of botih of the taxing units. City of St. Petersburg v. Certain Lands, etc., 158 Fla. 377, 28 So. (2d) 537.

The two-year period referred to in the first part of subsection (1) of this section has reference to 1941 tax certificates and the proviso at the conclusion of subsection <7> would seem to conclude the point. Id.

Period of redemption.-In Leon County v. Crawford, 153 Fla. 604, 15 So. (2d) 321, the court held that although the statute is not clear on the point, the right of redemption on the part of the original owner of lands as to all tax sale certificates exists until the final decree in the chancery proceeding is entered.

Under subsection (3) of this section the period of redemption is limited to the two years following the date of the certificate during which time it may be purchased by anyone. Leon County v. Crawford, 153 Fla. 604, 15 So. (2d> 321, 323.

Section is valid.-The inclusion of subsection (7) of this section in Chapter 22079, Acts of 1943, does not violate the provision of Art. III. § 16, of the Florida Constitution. State v. Mathas, 157 Fla. 622, 26 So. (2d) 652.

The requirements of this section must be strictly followed to enJtitle the plaintiff to :relief hereunder. Smith v. Green, (Fla.), 31 So. (2d) 925.

Subsection (7) of this section was intended to freeze the tax sale certificates in status quo in the hands of the clerk of the circuit court until such time as the municipality holding title to the lands should dispose of the same. State v. Mathas, 157 Fla. 622, 26 So. (2d) 652.

Under this subsection the Clerk of the Circuit Court is without power or authority to sell and assign tax sale certificates on property the title to which is vested in the municipality. Id.

Furnishing the clerk of the circuit court a verified and accurate description of tax delinquent lands to which the municipality holds title is not a condition precedent to the acquisition of or the forfeiture of the benefits of this section. State v. Mathas, 157 Fla. 622, 26 So. (2d> 652.

Effect of decree in suit to quiet title.-Where the provisions of Chapter 22079, Acts of 1943, from which this section is derived, is strictly complied with and a decree of a court of competent jurisdiction quieting title to the lands in the county was entered and appeared valid. and regular on the record, grantees from county were entitled to rely on it as adjudicating a new and independent title vesting in the county. Green v. Smith, 157 Fla. 454, 26 So. <2d) 181.

Notice constituting due process.-The provisions of this and § 173.04 are not identical but the requirements rue substantilaJly the same and what would constitute notioe sufficient to satisfy tihe requirements of due process under one section would do likewise under the other. Smith v. Green, (Fla.), 31 So. (2d) 925.

Lands included in list certified by clerk in 1943.-Lands against which state tax sale certificates were issued in 1941 should be included in the list certified by the clerk of the circu1t court in 1943 to the board of county commis- Applied in Palm Orange Groves, lnc., v. Yel-sioners as a predicate for the foreclosure pro- vingrt;on, <Fla.). 32 So. (2d) 164. ceedings provided by this section. Leon County Cited in Whittington v. Davis, (FLa.), 32 So. v. Crawford, 153 Fla. 604, 15 So. (2d) 321, 322. (2d) 158.

[ 92]

1947 CUMULATIVE SUPPLEMENT TO VOLUME D, FLORIDA STATUTES, 1941 § 194.58

§ 194.47-1 HISTORY.

Comp. § 1, ch. 22870, 1945.

§ 194.47-2 HISTORY.

Comp. § 2, ch. 22870, 1945.

§ 194.47-3 HISTORY. ~omp. § 3, ch. 22870, 1945.

§ 194.47-4 HISTORY.

Comp. § 4, ch. 22870, 1945.

§ 194.48 HISTORY.

Repealed by § 14, ch. 22079, 1943; see § 194.47, which changed mode of procedure.

§ 194.49 HISTORY.


§ 194.50 HISTORY.


§ . 194.51 HISTORY.

Am. § 17, ch. 22079, 1943.

ANNOTATION. The notice required to be mailed is not jurisdic

tional.-Under the provisions of this section, the mailing of copy of notice to the Landowner is not jurisdictiOOJal. Lucia.n v. DuVllme Oorp., 158 Fla. 634, 29 So. (2d) 627.

Cited in Whittington v. Davis, (Fla.), 32 So. (2d) 158.

§ 194.52 HISTORY.


§ 194.53 HISTORY.

Am. § 19, ch. 22079, 1943. Am. § 1, ch. 24206, 1947.

ANNOTATION. Reasonable requirements may be made by the

Legislature for the liquidation of tax sale certificates issued under the Murphy Act, but such regulations must permit the certificate holder to pursue his remedy in the courts so as to avoid the prohibition against impairment of the obligation of contracts. Pinellas County v. Banks, 154 Fla. 582, 19 So. (2d) 1 . .

Where the legislative journals showed conclusively that an amendment to this section. was llliOt approved, that it was in ~terms rejected!, arul did not become a part of Chapter 21805, Acts of 1943, it was spurious and illegal and should be stricken. State v. Gray, 153 Fla. 462, 14 So. (2d) 721, 722.

This section and §§192.21 and 194.54 were pal'lts of chapter 22079, acts of 1943, and aal Should be construed '!iS in pari materia or so as to give such a~ field! of operation. Whittington v. Davis, (FlJa.). 32 So. (2d) 158. Chapter 2·2079, acts 1943, from which this sec

tion derives, was not designed to punish the ma.n who makes an honest endeavor yea~r alfter yea.r to P31Y his ;taxes, nor as a ruse to cut one loose from a title tJha.t he was offering year after year to preserve. Id.

§ 194.54 HISTORY.

Am. § 20, ch. 22079, 1943.

ANNOTATION. This section and § § 192.21 and 194.53 were parts

of chiaJPter 22079, acts of 1943, and all should be construed as in Pa~ri materia or so as to give such a field of operation. Whitting·ton v. Davis, (Fla.), 32 So. (2d) 158.

And as amended in 1943, must be :t'eaid in pari materia with §194.15, just as if the language used in this section had been in th-e original act. Gottenstrater v. Brurramo.re, (Fla.), 31 So. (2d) 267.

Chapter 22079, acts of 1943, from whic.'h this section derives, was not designed to punish a man who makes an hanest endieavor year after year oo PaiY his taxes·, nor as a ruse to cut one loose from a ti-tle that he WI3S offering year after year to preserve. Whittington v. DaNis, (Fla.), 32 So. (2d) 158.

To "proceed as in chancery cases," as used in this section, contemplates any defense amenable to a suit in equity, a~nd the person in posse.ssion may offer any legal defense in !his answer; its sufficiency to defeat the possessory writ is one for the chillinoellor to detel'Ill:ine. Whittington v. Dalvis, (Fla.), 32 So. (2d) 158.

Applied in Padm Orange Groves v. Yelvington, (Fia.>, 32 So. (2d) 164.

§ 194.55 HISTORY.

Am. § 21, ch. 22079, 1943. Am. § 1, ch. 22772, 1945. Am. §§ 2, 3, 4, ch. 24206, 1947.

ANNOTATION. Cited in Pinellas County v. Bamks, 154 Fla. 582,

19 So. (2d) 1; City of St. Petersburg v. Certain Lands, etc., 15& FLa. 377, 28 So. <2d) 537; Whittington v. Davis, <Fia.), 32 So. (2d) 158.

§ 194.58 HISTORY.

Comp. §§ 1-4, 6, ch. 23828, 1947.

[ 93]


§ 194.59 HISTORY.

Comp. §§ 1-2, ch. 23832, 1947.

§ 194.60 HISTORY.

COmp. §§ 1-8, ch. 23830, 1947.

§ 194.61 HISTORY.

Comp. § 1, ch. 24334, '1947.

CHAPTER 195.

Taxes on Railrmids, Pullman and Express Companies.


Cited in In re Florida East Coast Ry. Co., 49 F. Supp. 527.

CHAPTER 196.

Court Proceedings Relating to Taxation.



Assessor's valuation.-What the court decrees to be the proper valua

tion becomes the assessed valuation, which is the legally assessed valuation, and is in law the assessor's valuation. Blume v. McMullen, 154 Fla. 494, 18 So. (2d) 31.

The effect of the court's action in reducing the assessment was to eliminate the illegal portion of the assessment and leave the remainder as the assessor's assessment. When the court decrees what is a proper valuation, then that becomes the legally assessed value of the property and is in law the assessor's valuation. Blume v. McMullen, 154 Fla. 494, 18 So. (2d) 31.

Applied in Saunders v. Jacksonville, 157 Fla. 240, 25 So. (2d) 648; Gay v. Bessemer Properties, <Fla.>, 32 So. (2d) 587.

Cited in Fort Myers v. Heitman, 149 Fla. 203, 5 So. <2d) 410.


Where this statute is appropriately applicable, a compliance therewith is a condition precedent to the acquisition of jurisdiction by the court to enter a decree cancelling a tax certificate. United Brotherhood of Carpenters, etc. v. Graves Inv. Co., 153 Fla. 529, 15 So. (2d) 196, 198.

Where this section was not complied with in suit to cancel tax certificates, decree cancelling such certificates was jurisdictiona.lly defective. I d.

Cited in Fort Myers v. Heitman, 149 Fla. 203, 5 So. (2d) 410.



Assignees may institute suit for recovery of land.-The language used in this section indicates that the "former owner or other adverse claimant" which includes assignee as well as others might bring suit for recovery of the land if brought within the · period of limitations. There seems to be no reason for supposing that assignees might not institute suit for recovery. Beaty v. Inlet Beach, 151 Fla. 495, 9 So. (2d) 735, 740.

This section is a bar within four years only where there is adverse possession. Salls v. Martin, 156 Fla. 624, 24 So. (2d) 41.

The prohibiting part of this section is available only where there is in law an "adverse possession." Id.

Applied in Gainer v. Wrandeck, 158 Fla. 486, 29 So. (2d) 20.

Cited in Goodwin v. Schmidt, 149 Fla. 85, 5 So. <2d) 64; Mitchell v. Moore, 152 Fla. 843, 13 So. (2d) 314.

§ 196.07 HISTORY.

Am. §§ 1, 2, ch. 23637, 1947.

ANNOTATION.


In general.-Statutes like this section do not depend on the element of good faith unless in terms they so provide. They are remedial and should be construed to give a lien to one who has acquired a tax deed, and in reliance thereon made improvements on the land, to recover the fair cash value of such improvements if the tax deed should for any reason be declared void. Some of the betterment statutes make recovery depend on mistake or good faith on the part of the tax deed holder but this section does not. Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201, 206.

No lien for taxes assessed without authority of law.-Holders of void tax deeds have a lien for taxes paid by such holder, but not for the amount of taxes which may have been assessed without any authority of law. Beaty v. Inlet Beach, 151 Fla. 495, 9 So. (2d) 735, 743.

The procedure outlined in § 70.06 e·t seq. should be followed in ascertaining the value of improvements to be compensated for under this section. Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201.

And recovery is limited to such permanent improvements as added to the value of the lands. Kester v. Bostwick, 153 Fla. 437, 15 So. (2d) 201, 206.

II. ILLUSTRATIVE CASES.

The provisions of this section do not apply where owner of property comes into a court of

[ 94]


equity only for the purpose of defending a suit which had been instituted by one claiming a lien for taxes under the doctrine of subrogation. Goodwin v. Schmidt, 149 Fla. 85, 5 So. (2d) 64, 70. .


This section does not include statutory consent to sue the state when it has the legal title to lands covered by state tax sale certificates discharged of any and all right of redemption by the · former owners or others who may have had the privilege of redeeming the land from state tax sale certificates. Prince Hall Masonic Bldg. Ass'n v. Jacksonville, 149 Fla. 109, 6 So. (2d) 250, 255. See annotation to § 173.01. See also § 192.38 and annotation thereto.

The provisions of this section were held inapplicable · to a suit to foreclose tax liens where the assessment was found to be illegal and the correct amount of the tax due was not known until the cause was litigated and the chancellor made the assessment, it being thought that a taxpayer should not be burdened with costs, interest, and attorneys' fees in an effort to settle the amount of his taxes that wen~ illegally assessed. Suits v. Hillsborough County, 150 Fla. 115, 7 So. (2d) 346, 347.

§ 196.09 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 196.14 HISTORY.

Am. § 23, ch. 22079, 1943. , P



§ 196.15 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 196.17 HISTORY.

Comp. § 1, ch. 21896, 1943.

§ 196.18 HISTORY.

Comp. § 2, ch. 21896, 1943. Am. § 1, c'h. 24343, 1947.

§ 196.19 HISTORY.

Comp. § 3, ch. 21896, 1943.

§ 196.20 HISTORY.

Comp. § 4, ch. 21896, 1943.

§ 196.21 HISTORY.

Comp. § 5, ch. 21896, 1943.

CHAPTER 199.

Intangible Personal Property Taxation.


This chapter employs the terms "true taxable value," "true and just value," "valuation for tax purposes," and perhaps others but they all bear reference to and are synonymous with "fair value." Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.

In at least six different sections of this chapter, the duties of tax assessors with reference to the assessment of intangibles is defined. There is nothing within its four corners that even remotely refers to the comptroller as being vested with that power. Id.

The tax assessor is vested exclusively with the power to assess intangibles subject to review and equalization by the board of county commissioners sitting as a board of equalization. I d .

This chapter and chapter 200 are complementary. They are mutually exclusive. Together, they purport to comprehend all personal property subject to taxation. Presumably, every item of taxable personal property falls within the scope of one, or the other, of the chapters. Schleman v. Guaranty Title Co., 153 Fla. 379, 15 So. (2d) 754, 759, 149 A. L. R,. 1029.

Abstract books and records kept and used as the basis of a business for profit' are not intangible personal property, within the purview of the legislative definition contained in this and the following section. Id.

Quoted in Genesee Corp. v. Owens, 155 Fla. 502, 20 So. (2d) 654.

Cited in Owens v. Fosdick, 153 Fla. 17, 13 So. (2d) 700.

§ 199.02 HISTORY.

Am. §§ 1, 4, ch. 21943, 1943. Am. § 1, ch. 22867, 1945.

ANNOTATION. Property falling in class D under this section

must be of the same quality, kind, character, or species as that expressly enumerated in classes A, B, and C. Schleman v. Guaranty Title Co., 153 Fla. 379, 15 So. <2ci> 754, 759, 149 A. L. R. 1029.

Abstract books and records, kept and used a5 the basis of a business for profit are in no way similar, theoretically or practically, to the other properties enumerated in classes A, B and C of this section, thus such books and records do not fall within class D of this section. I d.

[ 95]


Personal property has its taxable situs in that state where the owner of it is domiciled. Smith v. Lummus, 149 Fla. 660, 6 So. (2d) 625, 627, wherein the business of the Florida agency was found ancillary to the main business located in another state.

Tax on interest of cestui que trust ta.ntamount to ta.x on income.-Where the interest of a cestui que trust was more in the nature of a beneficial interest or estate in income than in the trust res itself, a tax on such interest, or estate, would so closely partake of a tax on income as to· be tantamount to a tax on income; and hence be violative the spirit and intent of § 11 of Article IX of the Constitution of Florida. Owens v. Fosdick, 153 Fla. 17, 13 So. (2d) 700, 703.

Applied <sub. 4) in Genesee Corp. v. Owens, 155 Fla. 502, 20 So. (2d) 654.


Stated in Schleman v. Guaranty Title Co., 153 Fla. 379, 15 So. (2d) 754, 149 A. L. R. 1029; Owens v. Fosdick, 153 Fla. 17, 13 So. (2d) 700; Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.

§ 199.04 HISTOIJ,Y.

Am. § 2, ch. 22867, 1945.

ANNOTATION. A fair market value has been defined as that

which a purchaser willing but not obliged to buy, would pay to one willing but not obliged to sell. In arriving at fair market value, income is only one factor to be considered. Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.

Cited in Owens v. Fosdick, 153 Fla. 17, 13 So. (2d) 700.


Stated in Owens v. Fosdick, 153 Fla. 17, 13 So. (2d> 700.

§ 199.07 mSTORY.

Am. § 3, ch. 22867, 1945.

ANNOTATION. Stated in part in Genesee Corp. v. Owens, 155

Fla. 502, 20 So. (2d) 654; Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.


Stated in part in Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.


Under this section, the tax assessor is at all times given the power to investigate and determine the "true taxable value" of intangibles

returned to him for assessments. Root v. Wood, 155 Fla. 613, 21 So. <2d) 133.

Cited in Genesee Corp. v. Owens, 155 Fla. 502, 20 So. (2d) 654.

§ 199.11 HISTORY.

Am. §§ 2, 4, ch. 21943, 1943.

ANNOTATION. Stated in Schleman v. Guaranty Title Co.,

153 Fla. 379, 15 So. (2d) 754, 149 A. L. R. 1029. Cited in In re Florida East Coast Ry. Co., 49

F. Supp. 527.


Stated inl Root v. Wood, 155 Fila. 613, 21 So. (2d) 133.


Stated in Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.


There is nothing in this provision to authorize the comptroller to make assessments of intangible personal property. That duty vested exclusively in the tax assessor subject to revision by the board of equalization. Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.

The comptroller's function is that of an aid, advisor, or collaborator with, but not the director of the assessor. Id.

If from the information furnished the tax assessor finds that intangibles have not been included in the rolls, the tax assessor shall proceed to enroll and assess them as provided by § 199.09 unless the tax rolls have been certified to the tax collector in which case the tax assessor shall proceed as required in the proviso to this section. I d.

§ 199.18 HISTORY.

Am. § 4, ch. 22867, 1945.

§ 199.19 HISTORY.

Repealed by § 5, ch. 22867, 1945.

§ 199.21 HISTORY.

Am. § 6, ch. 22867, 1945.

§ 199.24 HISTORY.

Am. § 7, ch. 22867, 1945.

§ 199.25 HISTORY.

Am. § 8, ch. 22867, 1945.

[ 96]



This section clearly contemplates that <~.11 intangibles be returned at full cash value and if the tax assessor should find from personal investigation or from investigation furnished him by the comptroller that any intangibles were not so returned to the extent that such return and assessment was later found to be less than cash value, it will be considered as having escaped taxation for any one or all three years that back assessments are authorized. Root v. Wood, 155 Fla. 613, 21 So. (2d) 133.

§ 199.30 HISTORY.

Am. § 9, ch. 22867, 1945.

§ 199.31 HISTORY.

Am. § 3, ch. 21943, § 7, ch. 22000, 1943. Am. § 10, ch. 22867. 1945.

HISTORY. § 199.32

it placed upon the market to be sold by the owner." Hillsborough County v. Knight, etc., Co., 153 Fla. 346, 14 So. (2d) 703, 705.

If similar property is commonly bought and sold, the price which it brings is the best test of the value * * *. But where an established market is nonexistent the process of valuation must comprehend not only one ~but all of the influencing factors going to make up intrinsic value and it is proper for the tax assessor to consider all the circumstances. Id.

Property properly vaJued.-Where property was valued at the cost of replacing it in the market or at the original purchase price, whichever was more advantageous to the merchant, it was held that the property was properly valued. Hillsborough County v. Knight, etc., Co., 153 Fla. 346. 14 So. (2d) 703, 705.

§ 200.08 HISTORY.

Am. § 1, ch. 22097, 1943.


Am. § 7, ch. 22858, 1945. Held not to apply in Lee Cypress Co. v. Hen-ANNOTATION. dry, 155 Fla. 757, 21 So. (2d) 351.

Stated in part in Root v. Wood, 155 Fla. 613, Cited in In re Florida East Coast Ry. Co. 21 So. (2d) 133. 49 F. Supp. 527.

CHAPTER 200.

Tangible Personal Property Taxation.


See §§ 199.01 et seq., and annotations thereto. Abstract books and records, kept and used

as the basis of a business for profit, are taxable under this chapter as tangible personal property. Schleman v. Guaranty Title Co., 153 Fla. 379, 15 So. <2d) 754, 758, 149 A. L. R. 1029.

Cited in Robins v. Daniel, 151 Fla. 199, 9 So. (2d) 381.

§ 200.02 HISTORY.

Am. § 1, ch. 22758, 1945.


Purpose of section.-One purpose oi the section wai; to accomplish taxation of all property at its real worth. Hillsborough County v. Knight, etc., Co., 153 Fla. 346, 14 So. (2d) 703, 704.

Valuation of property.-Tampa v. Colgan, 121 Fla. 218, 163 So. 577, 582, is said to be "the leading case on the question of valuation." There the court said that the "value * * *, for purposes of taxation, is to be determined by taking into account not one, but all, favorable and unfavorable circumstances that would control the admeasurement of its present value were


This chapter does not repeal § 193.23, and in assessing property for back taxes for years prior to 1941 this section must be interpreted in connection with § 193.23 which was in force in: such years. Robins v. Daniel, 151 Fla. 199, 9 So. (2d) 381, 382.

Valuations of tangible personal property in 1941 for taxes for the years 1938, 1939 and 1940 should be made in accordance with § 193.23, which was in force during such years. Id.

Where the tangible personal property was assessed as property at Lee Cypress Company when such property was not the property of the Company between January 6, 1943 and March 1 of that year, such assessment was void. Lee Cypress Co. v. Hendry, 155 Fla. 757, 21 So. <2d) 351.

§ 200.28 HISTORY.

Am. § 7, ch. 22858, 1945.


Quoted in· part in Lee Cypress Co. v. Hendry, 155 Fla. 757, 21 So. (2d) 351.


This section is not in conflict with the state or Federal constitution. Tampa Gfl,s ~o. v. Sparkman, 153 Fla. 177, 14 So. (2d) 196, 197.

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§ 200.38 HISTORY.

Am. § 7, ch. 22858, 1945.

§ 200.44 HISTORY.

Am. § 7, ch . ..22858, 1945.

§ 200.45 HISTORY.

C.omp. §§ 1-3, ch. 24113, 1947.

CHAPTER 201.

Excise Tax on Documents.


The purpose of this chapter is to raise revenue and "written obligations to pay money" is intended as a dragnet to catch any kind of an instrument designed for that purpose. Dundee Corp. v. Lee, 156 Fla. 699, 24 So. (2d) 234.

The documentary stamp tax is an excise tax on the promise to pay and the terms and certainty of payment are not material. Plymouth Citrus Growers Ass'n v. Lee, 157 Fla. 893, 27 So. (2d) 415.


In view of the highly speculative and contingent attributes, manner of payment and fact that the statutes imposes "consideration" or "obligation" evidenced thereby as the basis of computation, documentary tax stamps on a 99-year lease is computed on the present value of the lease. Dundee Corp. v. Lee, 156 Fla. 699, 24 so:> <2d) 234.

Leases aa-e taxable under this section as an interest iJn. land. DeVore v. Lee, 158 Fla. 608, 30 So. (2d) 924.

§ 201.08 ANNOTATION • . Written obligations to pay money are intended

as a dragnet.-The purpose of this chapter is to raise revenue and "written obligations to pay money" is intended as a dragnet to catch any kind of an instrument designed for that purpose. Dundee Corp. v. Lee, 156 Fla. 699, 24 So. (2d)

into 'a debt only ·as the time for payments of rent arrive, and is ruot taxable under this section.

Cited in Plymouth · Citrus Growers Ass'n v. Lee, 157 Fla. 893, 27 So. (2d) 415.

CHAPTER 202.

Excise Taxes, Generally.

§ 202.01 HISTORY.

Am. § 7, ch. 22858, 1945.

CHAPTER 203.

Gross Receipts Taxes, Generally.

§ 203.01 HISTORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. Sale of electricity and gas.-

Where gas was delivered through pipe lines under constant pressure from other states by gas pipe line company to four customers in Florida, including a public utility selling at retail and an owner of a residential subdivision selling gas to residents, a bill to restrain the comptroller from collecting tax on gross receipts from gas, alleging that tax if applied to such transactions would violate interstate commerce clause, was improperly dismissed. United Gas Pipe Line Co. v. Lee, 154 Fla. 235, 17 So. (2dl 553.

The several provisiro!IliS of this chapter are in'applicable to 'intemstate commerce, but apply to busmess done between poi:ruts in lthe state of Florida. Gay v. Uillited Gas Pipe Line Co., (Fla.), 32 So. (2d) 600.

'I1.hus the sale !Mld transportation of natural gas t:hrough seller's pipe lines from othm- states constituting interstate commerce does not come within this chapter. Id.

Cited in Tamiami Trnil 'I1ours v. City of Tampa, (Fla.) , 31 So. (2d) 468.

CHAPTER 204.

Chain Store Taxes.

234. HISTORY. § 204.01

Covenant to pay rent.-In DeVor.e v. Lee, 158 Fla. 608, 30 So. (2d) 924, the court said, in over~ruling Dundee Corp. v. Lee, 156 Fla. 699, 24 So. (2d) 2'34, insofar as the coUTt held that a "written obligation to pay money" contemplated the covenant in a lease to pay rent a;nd hence includro a 99-year lease, that an outright obliga tion to pay money as contemplated by this section, and an obligation whicll. fiows from a lease are easily distinguishable; the latter is oontingent, and the UJildertaking. to pay rent periodically ripens

Am. § 1, ch. 24269, 1947.

ANNOTATION.

II. GENERAL CONSIDERATION.

There is no ambiguity or uncertainty in this act. Lee v. Walgreen Drug Stores Co., 151 Fla. 648, 10 So. (2d) 314, 315.

This law deals with license taxes, not taxes ad valorem, therefore, there can be no application of it to litigation under § 200.06. Hillsborough

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County v. Knight, etc., Co., 153 Fla. '346, 14 So. (2d) 703, 706.

More than one class of business in a single store. In accord with original. See City Drug Co. v.

Lee, 151 Fla. 18, 9 So. (2d) 169; Walgreen Drug Stores Co. v. Lee, 1518. Fla. 260, 28 So. (2d) 535.

While no conclusive presumption may be indulged to the effect that in all cases where a drug store, or any other sort of a store, and a restaurant are conducted by one and the same owner in one and the same store room, the restaurant will be held to be only an incident to the mercantile or store business and is, therefore, an integral part of the store business, the presumption that the comptroller in the exercise of his statutory duty has lawfully classified the business so conducted must be overcome by allegations of facts and proof of conditions leading with certainty to a contrary conclusion. City Drug Go. v. Lee, 151 Fla. 18, 9 So. (2d) 169, 170.

The presumption in subsection (7) of this section is a rebuttable one. Lee v. Herndon, 151 Fla. 657, 10 So. (2d) 305, 306.

The characteristics of a ' 'chain store" consist in the method of management, group control of store operation, frequent turnover, cooperative advertising, cooperative buying, suitable location, display of goods, training of employees, and the combination of wholesale and retail functions under one control. Lee· v. Herndon, 151 Fla. 657, 10 So. (2d) 305, 306.

Where complainant's store was independently owned and operated by him, wa,s the only store he owned or operated, and was not under the management direct or indirect of any other person or group of persons, it was held that none of these elements was accomplished through stock ownership, and that complainant was not the owner and operator of a chain store. Id.

Collection of tax levied under former act.The repeal of one tax statute by the enactment of this chapter did not preclude the comptroller from enforcing the collection of the tax levied under the former act after the e:!Iective date of the repealing act. Lee v. Walgreen Drug Stores Co., 151 Fla. 648, 10 So. (2d) 314, 316.

Cited in McCroTy Stores Corp. v. Lee, 157 FLa. 274, 25 So. (2d) 567 ; S!Jalte v. Gay, 158 Fla. 595, 29 So. (2d) 623; State v. Gay, 158 Fia. 500 ; 29 So. (2d) 246.


See annotation to § 205.12. In accord with 1st paragraph in original. See

Lee v. Walgreen Drug Stores Co., 151 Fla. 648, 10 So. (2d) 314.

This section does not require the payment of a retroactive tax by requiring an operator, moving from one class into another during the year by reason of increasing his chain, to pay the tax as fixed for the latter class, taking

credit for the amount which he had paid as an operator in former class. Lee v. Walgreen Drug Stores Co., 151 Fla. 648, 10 So. (2d) 314, 315.

The rule that penal statutes must always be construed strictly and are never to be extended by implication, does not apply to this section. And the rule that in construing tax statutes, where the act is so drawn that the legislative intent is in doubt it becomes . the duty of courts to resolve that doubt in favor of the taxpayer and against the state, does not apply to this section because there is no room for doubt as to the legislative intent. Id.

Cited in· State v. Gay, 158 Fla. 595, 29 So. (2d) 623.


The fiscal year for tax purposes under this section is not the calendar year, but the "fiscal year of the licensee." State v. Gay, 158 FLa. 164, 27 So. (2d!) 907.

Cited in Sta.te v. Gay, 158 Fla. 595, 29 So. (2d) 623.


Cited in McCrory Stor·es Corp. v. Lee, 157 Fla. 274, 25 So. (2d) 567; stJa:te v. Gay, 158 Fla. 595, 29 So. (2d) 623.






It was the intention of the legislature that when a return is filed under this section a duty is then placed upon the Comptroller to examine it and the eighteen months' period of limitation is not tolled where a fraudulent return is made which prevents the Comptroller from ascertaining the verity thereof within the eighteen months' period. McCrory Stores Corp. v. Lee, 157 Fla. 274, 25 So. (2d) 567.

Cited in State v. Gay, 158 Fla. 595, 29 So. (2d) 623.



§ 204.09 HISTORY.

Am. § 7, ch. 22858, 1945.

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ANNOTATION. Cited in State v. Gay, 158 Fla. 595, 29 So. (2d)

623.

§ 204.10 IDS TORY.

Am. § 7, ch. 22858, 1945.

ANNOTATION. Cited in State v. Q-ay, 158 Fla. 595, 29 So. (2d)

623.


In case of conflict, this section should prevail over §205.12 which limits the right of the comptroller and others to collect additionaJ. license taxes 'and is applicable generelly. State v. Gay, 158 FI:a.. 595, 29 So. (2d) 623.

Cited in McCrory Stores Corp. v. Lee, 157 Fla. 274, 25 So. (2d) 567.




Applied in Walgreen Drug Stores Co. v. Lee, 158 Fla. 260, 28 So. (2d) 5>35.


Quoted in part in State v. Gay, 158 Fla. 164, 2·7 So. (2d) 907. ' '


' Cited in· State v. Gay, 158 Fla. 595, 29 So. <2d>

623. ' ' '

ANNOTATION. Cited in State v. Gay, 158 Fla. 595, 29 So. (2d)

623. . '

ANNOTATION. § 204.1,6

Cited in State v. Gay, 1.58 Fla. 595, 29 So. (2d) 623. '

ANNOTATION.

CHAPTER 205.

License Taxes.

§ 205.01

The State of Florida does not have the right to· levy a license· tax upon the business of radio broadcasting and this chapter, insofar as it attempts to levy a license upon a corporation m the operation of its broadcasting business is void and inoperative. Tampa Times Co. v. Burnett, 45 F. Supp. 166, 167.

This section was held not violated where person who was adjudged mentally incompetent carried on a business of filling station and light groceries in the name of an employee to whom a license was granted. Pavlis v. Jackson, 131 F. (2d) 362, 364.

Cited in Curley v. State, 153 Fla. 773, 16 So. <2d) 440 (dis. op.).

§ 205.05-1 HISTORY.

Comp. §§ 1, 2, ch.. 24352, 1947.

§ 2Q5.11 HISTORY.

Am. § 1, ch. 24112, 1947.


It was not the intention of the legislature m adopting this section to make the legislative estoppel created by this section applicable to involuntary action or inaction on the part of the comptroller forced · upon him by an injunction enjoining him from collecting gross receipts tax on sales of certain

1 products imposed by

the chain stores act. Jackson Grain Co. v. Lee, 150 Fla. 232, 7 So. (2d) 143, 145.

Where operator of chain stores, by reason of the operation of additional stores, moves from one class into another class during the tax year upon which a higher license fee per store is imposed under § 204.02, and the record showed that the comptroller had not for two or more consecutive years received the taxes and fees tendered for the operation of chain stores imder ·the higher class, it was held that the comptroller was not precluded by this section from claiming the right to collect additional license tax on the original stores for the license year in which two additional stores were opened. Lee v. Walgreen Drug Stores Co., 151 Fla. 648, 10 So. (2d) 314, 316.

In case of conflict, §204.11, dealing with ohain stores especiaJ.ly, should prev·ail over this section. Sta.te v. Gay, 158 Fla. 595, 29 So. (2d) 623.

-Cited in State v. Gay, 158 FJ.a. 500, 29 So. (2dJ)

246. .

· Stated i:n Sta,te v. Gay, 158 Fla. 164, 27 So. (2d) 907.

§ 205.16 HISTORY.

Comp. § 1, ch. 21654, 1943.

§ 205.16-1 ~IS TORY. · Comp. §§ 1, 12', ch. 22664, 1945.

§ 205.22 HISTORY.

Repealed by § 6, ch. 22000, 1943; see State v. Gerrell, 137 Fla. 324, 188 So. 812.

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