Title: Opinon File 70-01 thru 70-12
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003289/00001
 Material Information
Title: Opinon File 70-01 thru 70-12
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Buddy Blain's Collections - Opinon File 70-01 thru 70-12
General Note: Box 14, Folder 2 ( Opinion File 1961-1971 - 1961-1971 ), Item 77
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003289
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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under the. terms of this Act, may accrue to section 21 of article 3 of the Constitution of
any teacher. Florida.

"The provisions of this Act shall not
apply to any teacher after they have arriv-
ed at sixty-five (65) years of age."
It is admitted that relator is a teacher as
defined by chapter 18743, Sp.Acts 1937, that
she is sixty-five years of age, and has
taught many years in the public schools of
Orange county; that she is well educated,
and in all other respects qualified to con-
tinue teaching. No reason whatever is
assigned for refusal to appoint her except
the concluding proviso to section 10 here
An inspection of chapter 18743, Sp.Acts
1937, discloses that it was designed to re-
quire higher standards of qualification on
the teaching profession of Orange county,
and when attained, and the teacher had
otherwise demonstrated her capacity and
ability to teach, she would be made secure
in her tenure and not subject to removal
for unfounded, flimsy, or political reasons.
[1] We cannot see that the proviso has
any relation whatever to the other part
of section 10 or to the main purpose of the
act; it is not comprehended in the title;
it is accordingly violative of section 16 of
article 3 of the Constitution, and may under
section 12 of the act be eliminated as a
part of it.
[2,3] Even if cognate and valid, we do
not understand the proviso to section 10
to require the board of public instruction
to sua sponte discharge a teacher on at-
taining the age of sixty-five. It appears
that there was a purpose to relieve teachers
from complying with its terms after they
reach that age, but this falls far short
of a requirement that they be peremptorial-
ly "fired" when they reach this age. Such
an interpretation would of itself make it
,arbitrary and unenforceable.
The constitutionality of chapter 18743
was before this court in State ex rel. J. R.
Glover v. J. R. Holbrook et al. and State
ex rel. J. R. Glover v. J. B. Munnerlyn et
al., 176 So. 99, and its validity upheld Sep-
tember 8, 1937. Its validity is according-
ly not before us at this time.
[4] Defendants in error, as further de-
fense for refusal to comply with the com-
mands of the alternative writ, say that the
published notice of intention to apply for
the passage of said act was insufficient, in
that it did not meet the requirement of

Copy of the published notice was includ-
ed in the record and has been examined.
We do not find it amenable to the assault
made on it The passage of the special
act was a legislative judgment that the no-
tice was sufficient, and we find no legally
sufficient basis to condemn it.
It follows that the judgment below 'must
be and is hereby reversed, with directions
to reinstate the cause and proceed accord-

ELLIS, C. J., and, BUFORD, J., con-

CHAPMAN, JJ., concur in the opinion and

HANSEN, Tax Assessor, v. STATE ex rel.
Supreme Court of Florida. Division B.
March 4, 1938.
1. Navigable waters =12
The statutes providing for assessment
of taxes for years In which property es-
caped taxation are inapplicable to taxes
levied by navigation .district, commission-
ers of which have power to assess or levy
taxes under different statute. Comp.Gen.
Laws 1927, 925, 926; Acts 1931, c. 14723.
2. Navigable waters C=12
The boards of commissioners, assessors,
and collectors of counties in navigation dis-
trict have no discretion as to levy, assess-
ment, and collection of district taxes, but
must comply with district commissioners'
annual resolutions fixing district tax rates.
Acts 1931, c. 14723, 5 11, 12.
3. Constitutional law C=70(3)
The Supreme Court is not concerned
with policy or wisdom of statute providing
for levy, assessment, and collection of nav-
igation district taxes by county commission-
ers, assessors, and collectors at rates fixed
by district commissioners' annual resolution.
Acts 1931, c. 14723, I 11, 12.

692 Fla.

)n of




y es-

i dis-


Error to Circuit Court, Broward Coun-
ty; George W. Tedder, Judge.
Proceeding by the State of Florida, on
the relation of the Board of Commissioners
of the Florida Inland Navigation District,
for a writ of mandamus, commanding L. O.
Hansen, as Tax Assessor of Broward
County, to assess a tax for payment of the
district's expenses and outstanding bonds.
Judgment awarding a peremptory writ, and
respondent brings error.
Jesse Grantham, W. G. Miller, and Rog-
ers, Morris & Griffis, all of Fort Lauder-
dale, for plaintiff in error.
Alfred A. Green and L. N. Green, both
of Daytona Beach, for defendant in error.

CHAPMAN, Justice.
Pursuant to sections 11 and 12 of chap-
ter 14723, Acts of 1931, the Board of Com-
smissioners of the Florida Inland Naviga-
tion District adopted the following resolu-
"'Resolution for Levying Tax
for Year 1935.
"'Be it resolved by the Board of Com-
missioners of Florida Inland Navigation
District, a special taxing District under
the laws of the State of Florida, in regular
meeting assembled at Jacksonville, Florida,
this 26th day of June, A.D.1935, as fol-
"'1. The said Board of Commissioners
of said Florida Inland Navigation Dis-
trict do hereby determine, assess and levy
a tax of one and one-half (11/%) mills on
the dollar upon the taxable property in said
Florida Inland Navigation District for
the year A.D.1935, for the following pur-
poses of the District: (a) A tax of one-
half mill on ihe dollar to be used by said
Commission for all expenses including the
purchase price of right-of-way and other
property. (b) A tax of one (1) mill on the
dollar to.provide funds with which to pay
the interest and provide and maintain a
sinking fund f6r the payment of the inter-
est and principal upon all issued and out-
standing bonds of the district.
"'2. That a cerEified copy of this reso-
lution executed in the name of the Board
of Commissioners of said District by its
Chairman, and attested by its Secretary,
under its corporate seal, shall be made and
delivered to the Board of County Commis-
sioners of each and every County in said
Florida Inland Navigation District, and to

Ina. 693
"** B.jAi'-^

the Comptroller of the State of Florida,
with the request that said tax levy of one
and one-half (1%) mills be included in the
tax levy to be made by each thereof for the
year 1935, as provided by law, and with the
further request that each of said Boards of
Commissioners order the Assessor of their
respective County to assess and the Col-
lector of their respective County to collect,
the tax at the rate fixed by said Resolu-
tion of the Board of Commissioners of the
Florida Inland Navigation District, viz:
one and one-half (1%/) millS, upon all of
the real and personal taxable property in
each said respective County for the year
1935, as provided by the Statutes and Laws
of the State of Florida applicable thereto.
"'Done and ordered in open meeting,
this 29th day of June, A.D.1935, eleven
members of the Board of Commissioners of
said District being present.' "

On October 8, 1936, Hon. George W.
Tedder, judge of the circuit court of
Broward County, Fla., awarded a peremp-
tory writ of mandamus commanding as fol-
"These are therefore to 'command yod,
L. O. Hansen, as Tax Assessor of Brow-
ard County, Florida, immediately to assess
a tax at the rate of one-half (%) mill on
the dollar to be used by relator for all ex-
penses including the purchase price of
right-of-way and other property, and, also,
a tax of one mill on the dollar to provide
funds with which to pay the interest and
to provide and maintain a sinking fund
for the payment of the interest and prin-
cipal upon all issued and outstanding bonds
of the District, as fixed by the resolution of
June 26, 1935, of the Board of Commission-
ers of Florida Inland Navigation District,
upon all taxable real property in Broward
County, Florida, upon which said tax was
omitted in the year A.D.1935 in addition to
the assessment of such property for the-
current year A.D.1936, such assessment to
be made separately for such year A.D.
1935, at and upon the basis of valuation ap-
plied to such property for the year A.D.
1935, notig tinclty the ypar when ,said
property escaped taxation, sO that such as-
sessment shall have the same force and
effect that it would have had had it been
in the year in which such property escaped
taxation, towit: A.D.1935; provided, how-
ever, that in making such assessment you
shall not assess any lot or parcel of land
certified or sold to the State for any previ-
ous years unless such lot or parcel of lands

179 o.


u ~I





so certified or sold shall be included in the- is a continuing one from year to year as
list furnished by the State Comptroller to long as chapter 14723 is effective or opera-
you as provided by law." tive.
From the said final judgment a writ of In the case of Richardson v. Hardee, 85
error was obtained, supersedeas perfected, Fla. 510, 96 So. 290, 292, this court had be-
and the action is here for review on a num- fore it the validity of chapter 8412, Acts of
ber of assignments of error. 1921, Laws of Florida, commonly known as
the Everglades Drainage District. The act:
[1,2] It is contended by counsel for was by the court sustained. It held that the
plaintiff in error that the Florida Inland expense of a drainage program could be
Navigation District has no power under raised by taxation, laid upon the property,
sections 925 and 926, C.G.L.1927, to levy real and personal, within the district bene4
the tax described in the resolution. We fail fited for the purpose of maintenance, re4
to see or understand how sections 925 and pair, upkeep and other necessary purposes
926, supra, have any application to the case of the district. The court said: ;
at bar. The power or authority of the
commissioners to assess or levy a tax is The principle being established that th
under chapter 14723, Acts of 1931. Section assessment may be laid on .the property
within the district upon.an ad'valorem bar
12 thereof requires the commissioners, not with the district uof asce adg arem bar
later than July 15th of each year, by reso- sis, the question of ascertaining e measure
lution, to determine the millage to be levied of special benefit resulting frbm the im-
upon the taxable property of the district.- provement and the property to which it ex
Copies of the resolution so adopted by the tends and the apportionment of the tax, is
commissioners are required to be transmit- one for legislative determination, and wheft
ted to the boards of county commissioners the legislature determines this question in a
of each county of the district. The board case within its general power, its decision is
of county commissioners of each county not subject to review by the courts, in the
of the district is required to order the as- absence of a showing of an arbitrary and
sessor to assess the tax at the rate or manifest abuse of power. Lainhart y
amount fixed by the board of commission- Catts, supra [73 Fla. 735, 75 So. 47]1-
ers of the navigation district and the levy Hagar v. Reclamation.Dist., 111 U.S. 701
shall be upon all real and personal property 4 S.Ct 663, 28 LEd. 569'; Spe.cer v. Me1 E
in each county of the district and the levy chants, 125 U.S. 345, 8 S;Ct. 921, 31 L.E,
as made shall be included in the warrant 763; Houck v. Little .River Dist., suppr
of the tax assessor of each county of the [239 U.S. 254, 36 S.Ct. 58, 60 LEd. 266';
district and attached to the assessment roll Dorsey, etc., Co. v. Board of Directors, su-
of taxes for each county. It then becomes pra [136 Ark. 524, 203 S.W. 33 ; Alcorn v.
the duty of the tax collector thereof to col- Bliss-Cook Oak Co., 133 Ark. 118, 201 S.W.
lect the amount of said levy as described 797; Moore v. Board of Directors, 98 Ark.
in the resolution. The sole power for the 113, 135 S.W. 819." '-
assessment and collection of the taxes [3] This court is not concerned wi!h
comes from chapter 14723, supra. The the policy or wisdom of the enactment of
boards of county commissioners, assessors chapter 14723, Acts of 1931, as this respofn-
and collectors, of the respective counties, of sibility rests with the Legislature of Flor-
the drainage district have no discretion or ida. If the taxpayers are dissatisfied or
authority, but it becomes their duty to fol- desire to discontinue the taxing burden so
low each and every one of the requirements created by chapter 14723, supra, their relief
Q0 chapter 14723, supra. is with the Legislature. ,
The boards of county commissioners, as- The judgment appealed from is affirmed.
sessors and collectors of taxes of each 4 -
county within the district, as a matter of WHITFIELD, P. J, and BROWN, J.,
law, are required to comply with the reso- concur. .
lution adopted annually by the board of -
commissioners of said district The duty ELLIS, C. J., and TERRELL and BU-
to comply with such resolution so adopted FORD, JJ., concur in the opinion and judg-
under section 12 of chapter 14723, supra, ment.

11 o--M

Li It
--i :I:
r ;.

694 Fla.


1. Judg
a part]
that ho
on ace
state I
ing dl
inal ci
ute is

2. Jud
sized t
are I
3. MI

4. Ji

of j

5. J


6. J

372 Fla.


The only question therefore presented to
the jury was whether in the circumstances in
which the defendant sold the stock it was
guilty of a conversion of it, and if so the
damages which the plaintiff sustained,
against which the defendant might set off
the amount due on the note.
[3] On the theory of a wrongful conver-
sion by the bank of the stock pledged, we
have failed to discover in the record any
evidence of a value of the stock in excess
of the amount realized for it by the bank and
applied on the plaintiff's debt to it. In the
companion case to this decided at this term,
Scott, Appellant, v. National City Bank and
Adjustment Bureau, Tampa Association of
Credit Men, Inc., 139 So. 367, the court held
that Scott was liable on the note to the bank
as surety upon the failure of the principal
debtor, Scott Grocery Company, to pay. There-
fore, to recover in this action the plaintiff
was bound to show that the securities alleged
to have been converted were of a market val-
ue greater than the amount credited upon
the obligation if, under the provisions of
the note, the bank did not have authority to
sell the stock without notice to the plaintiff.
There is no such evidence, consequently the
verdict was wrong.
[4] The note, as pointed out in the case
above mentioned, contained provisions for
the sale of the securities deposited without
notice to the makers of the note. Whether
those provisions constituted a waiver of the
statute requiring notice it is unnecessary to
determine in this case, because if they were
not and the sale constituted a conversion,
there is no evidence to support the verdict
in the sum rendered.
This case might have been tried by intro-
ducing the promissory note making proof of
the sale of the stock by the bank and the
market value of the stock at the time of the
sale of it by the bank ana a showing of the
amount which the bank had credited on the
debt on account of such sale. If the trial
court had held as it did that the provisions
of the note amounted to a waiver by the
plaintiff of the statutory provisions requir-
ing notice of the sale of pledged stock to be
given to the one pledging it, see section 6931,
Comp. Gen. Laws 1927, an instructed ver-
dict for the defendant on that issue would
have followed and the cause would have been
presented here solely upon that question of
law. But that question is not' necessary to
be determined in this case, because there is
no evidence of value of the stock in excess
of that for which it was sold.
For these reasons the order granting a
new trial was not error, and the same is af-

BUFORD, 0. J., and BROWN, J., concur.

DAVIS, JJ., concur in the opinion an judg-

STATE ex rel. GILLESPIE et al. v. "HURS-
BY at al.*

Supreme Court of Florida.
Jan. 25, 1932.

I. Mandamus e=181(4).
Relator, in moving for peremptory man-
damus writ after respondents' answer, admits
all well-pleaded averments of answer

2. Constitutional law e=48.

Every law on statute books is p
tively valid.

3. Constitutional law =79.
It is officers' duty to obey status
validity thereof has been passed on b.

4. Officers 4 ll10.
Tax assessor and county commit
complying with statutes not Judicl
cleared in conflict with Constitution ai
default in performing their duty in

5. Taxation e=446.
In absence of statute, copies ol
tax rolls delivered to state comptro
county tax collector cannot be rec
county tax assessor or county commit

6. Taxation 4=3446.
After tax levy has been made,
ments completed, and tax rolls deli'
proper officials, tax assessor and I
county commissioners become funett
as to tax, and are powerless to chang

7. Mandamus =16(I).
Mandamus will not be granted
issued, it will prove unavailing, or co
therewith nugatory in effects, or not
to relator.

8. Mandamus -=15.
Mandamus will not lie where
thereof would cause confusion and
in administering county's finances.

9. Mandamus @=180.
Peremptory mandamus will not
ed on return of alternative writ,
spondents may be required to do a]
required by alternative writ.



ily de-
e not in
tat re-

er and
fled by

ered to
board of

vhere, If


e grant-
nless re-
I that is












For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indea
*For opinion denying rehearing, see So. -.

129 So.

- I

Fla. 373


* afl

Syllabus by the Court.
1. Every law found on the statute books
is presumptively valid.
2. It is the duty of officers to obey statutes
until in proper proceedings they are passed up-
on by the courts.
3. Where the tax assessor and the county
commissioners have complied with existing stat-
utes, which have not been judicially declared
to be in conflict with the Constitution, in the
assessment and levy of taxes, they are not in
default in the performance of a duty in that re-
4. In the absence of a statute authorizing
it, copies of county tax rolls that have been de-
livered to the state comptroller and to the coun-
ty tax collector, as required by law, cannot be
recalled by the county tax assessor or by the
board of county commissioners, nor can either
of such copies be surrendered by the state comp-
troller or the county tax collector.
5. Where a tax levy has been made, assess-
ments completed, the certificate of the board of
county commissioners affixed to the tax rolls,
the warrant to the tax collector issued, and the
tax rolls have been delivered to the proper of-
ficials under the law, the tax assessor and the
board of county commissioners become functus
officio as to the tax, and they are powerless to
change the assessment as made.
6. 6The writ of mandamus will never be
granted in cases when, if issued, it would prove
unavailing, or when compliance with it would
be nugatory in its effects, or would be without
beneficial results and fruitless to the relator.
7. The writ of mandamus will not lie where
its issuance would cause confusion and disorder
in the administration of a county's finances.
8. A peremptory mandamus will not be
granted upon the return of an alternative writ,
unless the respondents may be required to do all
that is required by the alternative writ.

Commissioners' Decision.
Original mandamus proceeding in the Su-
preme Court by the State, on the relation of
J. W. Gillespie and others, against Ben D.
Thursby, chairman, and others.
Motion for peremptory writ denied.
Vocelle & Mitchell, of Vero Beach, and H.
A. Lasseter, of Orlando, for relators.
W. J. Gardiner, of Daytona Beach, and H.
A. Henderson, of St. Augustine, for respond-

This is a case of original jurisdiction
wherein it appears that the Legislature of
1931 enacted a law, House Bill No. 1306
(chapter 14776, Laws of Florida 1931, p. 558),
abolishing the board of bond trustees of
Ocean Shore improvement district, a special

taxing district comprising certain territory
in Flagler and Volusia counties. Prior to the
enactment of this statute, it was the duty
of the said board, on or before Jul4 first of
each year, to make and submit to toe boards
of county commissioners of said counties an
estimate of the amount of money necessary
to be raised by taxation against the taxable
property in said district, to pay th4 interest
upon and create a sinking fund for the pay-
ment of the principal of bonds of the dis-
trict; that this court, during the present
(June)* term, in a mandamus proceeding,
brought by relators against the said board
of bond trustees, held that the provisions of
said act, in so far as it sought to abolish the
said board of bond trustees, were unconstitu-
tional, and ordered a peremptoryt writ of
mandamus requiring the said board to make
and submit an estimate of money necessary
to be raised by taxation against the taxable
property in said district to pay the obliga-
tions of said district due relators as holders
of its bonds; and that said board convened,
made, and prepared such estimate and sub-
mitted the same to the said boards of coun-
ty commissioners; that the board of coun-
ty commissioners of Volusia county has lev-
led twelve mills on the dollar against the tax-
able property of said district in sai county,
and Flagler county has levied no t x what-
ever, and that the levy so made ii Volusia

county is not sufficient to raise thi amount
required to be raised in said district for the
year 1931.
In response to the alternative writ of man-
damns issued herein, and which was served
on October 31, 1931, the Volusia county offi-
cials, who are respondents herein, made their
return to the writ wherein they say that the
board of county commissioners of spid coun-
ty, on the 28th of August, A. D. 191, levied
a tax of twelve mills on the dollar for the
year 1931, on all property in said county,
lying and being within said district for the
purpose of paying interest and beating a
sinking fund for the retirement of the bond-
ed debt of the district; that no estimate had
been furnished or delivered to the soid board
of county commissioners by the s ld board
of bond trustees before the said levy was
made, but that an estimate was made and
delivered to the said board of co nty com-
missioners by the board of administration of
the state of Florida, under and by virtue of
the said act of 1931, which had n4t at that
time been passed upon by the co rt; that
the salt levy of twelve mills was based upon
and computed from an estimate of revenues
for said district, which estimate was com-
puted from an estimate made and delivered
to the said board of county commissioners
of said county, by the board of aministra-
tion of the state of Florida, and from the
records of the several bond issue of said
district on file and of record in thi office of

ptory man-


tutes until,
Sby courts.

lclally de-
) are not in
in that re-

of county
troller and
calledd by

ide, assess-
elivered to
i board of
ictus officio
inge assess-

d where, If
ot 3i Acial

re issuance
id disorder

At be grant-
Sunless re-
all that is


November 30, 1970


R8r Failure of Charlotte county Officials
to levy tax assessment for SNP village
".' : I t,
i didn't get a chance to do the research on this
matter and would appreciate it if you could pinch
hit for me*.

A somewhat similar position arose in the Oklawaha
River Basin back in 1967. If you will look in th
attached file you will see a copy of the minutes
is clipped showing what they did. This isn't qu it
the same problem we have here.

When you research the provision about tax assesae
and tax collectors be sure you have the latest
statutes because there may have been some changes
in this area in the last several legislative

SThanks for your help.


a' L0 l






RE: Failure of Charlotte County Officials to levy tax
assessments for SWF Millage

Florida Statute 192.21 (1965) provides "All taxes imposed pursuant to
the constitution and the laws of this State shall be a first lien
superior to all other liens on any property against which such taxes
have been assessed which shall continue in full force atid effect
until discharged by payment, and no act of omission or commission on
the part of any Tax Assessor, or any insistent Tax Assessor any
Tax Collector, or any board of County Commissioners, orl any Clerk
of the Circuit Court or any officer of the State, or an3 newspaper
in which any advertisement of the sale may be published] shall
operate to defeat the payment of said taxes; but any acts of omission
or commission may be corrected at any time by the officer or party
responsible for the same in like manner as is now or may hereafter
be provided by law for performing such acts in the first place, and
when so corrected they shall be construed as valid aA iinitio and
shall in no way affect any process by law for the enforcement of the
collection of any. such tax.

Florida Statute 193.151 (1969) Assessment of property for back taxes.

When it shall appear that any ad valorem tax might have been lawfully
assessed or collected upon any property in the State thyAt such tax
was not lawfully assessed or levied, and has not been collected for
any year within a period of three (3) years next proceeding the
year in which it is acertained that such tax has not been assessed,
or levied, or collected, then the officers authorized shall make
the assessment of taxes upon such property in addition to the
assessment of such property for the current year, and shall assess
the same separately for such property as may have escaped taxation
at and upon the basis of valuation applied to such prop rty for the
year or years in which it escaped taxation, noting distinctly the
year when such property escaped taxation and such assessment shall
have the same force and effect as it would have had if it had been
made in the year in which the property shall have escaped taxation,
and taxes shall be levied and collected thereon in like manner and
together with taxes for the current year in which the assessment
is made.

The provision of this Section Florida Statute 193.151 (1) shall
apply to property of every class and kind upon which ad valorem
tax is assessable by any State or County authority under the laws
of this State.


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