
    State ex rel. Robert F. Neafie v. Board of Commissioners of Everglades Drainage District, et al.
    
    194 So. 786
    En Banc
    Opinion Filed March 19, 1940
    
      
      Watson & Pasco & Brown, for Relator;
    
      Fred H. Kent, Adair, Kent, Ashby & McNatt, for Respondents.
   Buford, J.

This cause is before us on petition to stay enforcement of the peremptory writ of mandamus issued herein on the first day of the present term of this Court until the taxpayers of the district have been given credit for that part of the aggregate sum of the assessment to be made equal to the amount of taxes which have been paid by the’ taxpayer under the purported assessment made under Chapter 17902, Acts of 1937.

We recognize the equity of the taxpayer not to have to pay both assessments and that where he has paid the tax assessed under the prima facie provisions of Chapter 17902, supra, he has already paid pro tanto the assessment which must be made under our judgment, supra.

That matter presents an issue, however, which could not have been injected into and disposed of in this suit.

In New Smyrna Inlet District, et al., v. Esch, et al., 103 Fla. 24, 137 Sou. 1, we held:

“When an ad valorem tax is levied upon propery under an invalid enactment, the amounts of such taxes that were involuntarily paid may be recovered by the taxpayer in appropriate procedure that is not in effect an unauthorized suit against the State.”

In the instant matter the tax levied under the provisions of Chapter 17902, supra, was prima facie valid and when it was paid such payment became a pro tanto payment of the valid tax to be levied under order and judgment of this Court.

The taxpayer has his remedy by applying to the taxing authority when he comes to paying the taxes to be assessed under the judgment, supra, to be given credit for the amount shown to have been paid under' the illegal assessment and have such credit applied on the payment of the assessment now to be made under the judgment, supra.

The motion for stay is denied.

Terrell, C. J., Whitfield, Brown, Ci-iapman and Thomas, J. J., concur.  