State Ex Rel. v. Sweat , 113 Fla. 797 ( 1934 )

The Constitution provides that "no tax shall be levied except in pursuance of law." Section 3, Article IX.

A tax being a definite and certain pecuniary burden imposed by law upon persons or property for governmental purposes, the subject and amount or rate of the tax should be prescribed in definite, unequivocal, express words of a duly enacted statute, otherwise there would not be a definite and certain tax levied in pursuance of law as required by the Constitution, but the tax would depend upon the demands of the collecting agencies.

A mortgage upon realty in Florida is not an estate in land, but is a written contract lien upon described land usually given to secure the payment of a debt. It is in law and in equity only a chattel property right. An excise tax may by statute be levied on the execution or the assignment of a mortgage of realty, even though an excise tax is also imposed upon the execution or the assignment of the notes or written instruments evidencing the debt secured by the mortgage. See Lamar v. Palmer, 18 Fla. 147. But a lawmaking intent to impose an excise tax upon the execution or the assignment of a written mortgage lien upon real estate should appear by the express unambiguous words of a valid statute.

Mortgages or liens are not mentioned in the paragraphs of the statute which are to be interpreted in this case except that mortgages which incorporate the certificate of indebtedness not otherwise shown in separate instruments are subject to the tax imposed upon certificates of indebtedness, thus showing an intent to tax the execution and assignments of evidence of debt but not to tax the execution or assignment of liens or mortgages.

In Garrett v. Fernauld, 63 Fla. 434, 57 So. 671, it was held that a written assignment of a mortgage upon land is not a conveyance or transfer of "any interest" in land covered by the mortgage, within the meaning of the recording statute which includes any "conveyance, transfer or mortgage of real property, or of any interest therein." See Section 5744 (3841), C. G. L.

In Florida ad valorem taxes are not imposed upon real estate mortgages as being "an interest in land." Mortgages on real estate are taxed as intangible personal property. See Chapter 15789, Acts of 1931.

DAVIS, C. J., concurs.