Lee v. Smith
| Decision Date | 15 June 1933 |
| Citation | 149 So. 67,111 Fla. 91 |
| Parties | LEE, State Comptroller v. SMITH et al. |
| Court | Florida Supreme Court |
En Banc.
Suit by I. W. Smith and others against J. M. Lee, as Comptroller of the State. From an interlocutory order granting a temporary injunction and overruling a motion to dismiss the bill of complaint, defendant appealse.
Affirmed by a divided court. Appeal from Circuit Court Leon County; J. B. Johnson, Judge.
Cary D. Landis, Atty. Gen., for appellant.
C. O Andrews, of Orlando, and Guyte P. McCord, of Tallahassee, for appellees.
This is an appeal in equity from an interlocutory order granting a temporary injunction and overruling a motion to dismiss a bill of complaint filed by certain individuals as claimants to certain moneys in the hands of the comptroller, in which it is alleged that the complainants below have a vested interest about to be disregarded by the comptroller because of his interpretation of certain statutes deemed controlling with respect to the distribution of the moneys involved.
Chapter 11954, Acts 1927, as supplemented and continued in operation by chapter 14502, Acts 1929 (Ex. Sess.), provides that it shall be the duty of county tax collectors in all counties falling within their scope to pay annually into a special fund all money received by them 'in excess of' the sums which they are, under the law, entitled to retain as their lawful compensation. In order to determine when there is an 'excess of' any sums which county officers are entitled to retain as compensation, chapter 14502, Acts 1929 (Ex. Sess.) supra, provides that each county official, receiving compensation wholly or partly in fees or commissions or both, must semiannually make to the county commissioners a sworn itemized statement of all fees and commissions collected, and an itemized statement of all expenditures of their respective officers.
Complainants below, all of whom were tax collectors of the smaller counties of the state, contend by their instant suit that, since, under the provisions of chapter 11954, Acts 1927, it is provided that county officials not receiving a net annual income of $5,000 per annum shall not be required to turn over any portion of their fees or commissions to the 'Special County Fund' which the act provides shall be made up of excess compensation paid to county officers through fees, salaries, and commission received by them, they are entitled to have paid over to them, by the comptroller, fees earned by them as tax collectors, during their tenure of office, although not collected until afterwards, because of provisions of law which postpone such collections until redemptions from tax sales are made. See chapter 14572, Acts 1929 (Ex. Sess.), and chapter 15798, Acts 1931 (Ex. Sess.), which changed the previous law on this subject.
The court below sustained the contention of complainants as above stated by overruling the comptroller's motion to dismiss the bill. It is the conclusion of this court that there was no error in such decree.
Under the applicable statutes which govern this controversy, it is expressly provided that, if the fees and commissions earned by tax collectors and other county officers do not result in a 'net income' to the incumbents of the offices, or at least $5,000 per annum, 'all the net income from such office not to exceed Five Thousand ($5,000.00) Dollars' shall be retained by the county officer 'as his yearly compensation.' Section 1, chapter 11954, Acts 1927.
The bill of complaint in this case alleges, anc that allegation is admitted to be true by the comptroller's motion to dismiss, that, for neither of the years 1929, 1930, 1931, or 1932, during which periods complainants held the office of tax collector in small counties, and conducted the tax sales therein as provided by law, and earned the fees and commissions prescribed by law for conducting such tax sales, did the amount of fees and commissions earned by them during any of the said years of their tenure of office amount to a 'net income' of $5,000 annually.
Such being the admitted facts of the case, and it appearing that, under the terms of the statutes, the complainants below as tax collectors were entitled to retain up to a net income of $5,000, all the fees and commissions of their offices accruing to them as 'net income' as that term is defined by section 2 of chapter 11954, Acts 1927, supra, it appears that until the complainants shall have received their net income in full, the complainants are entitled to the fees and commissions collected on tax redemptions since their retirement from office, the payment of which was merely postponed until the actual redemption was made, and that therefore the court below properly restrained the comptroller from treating the moneys of the complainants as being moneys for which warrants should be drawn by the comptroller in favor of others, as the bill alleges he (the comptroller) had announced his intention to do.
The duty to report all fees, salaries, and commissions received by county officers is an appropriate incident for determining whether or not, under the law, any county officer has during any year received more than the 'net income' which the law entitles him to retain as his compensation. But under the applicable statutes, where the total 'net income' of a county officer never reaches the minimum 'net income' permitted to be retained as the officer's annual compensation, the entire 'net income' for the year is allowed to the officer, and cannot be taken away from him on the theory applied in Martin v. Karel, Sheriff (Fla.) 143 So. 317, where it was said that, when fees and commissions have been earned by a tax collector 'in excess of' the minimum allowed by law, such fees and commissions should, in so far as any excess is concerned, be deemed to have been earned by the office, rather than individually by the occupant thereof.
The foregoing statement represents the views entertained in this case by Mr. Chief Justice DAVIS, Mr. Justice TERRELL, and Mr. Justice BUFORD, who are of the opinion that the decree appealed from should be affirmed. Mr, Justice WHITFIELD, Mr. Justice ELLIS, and Mr. Justice BROWN are of the opinion that the decree appealed from should be reversed for the reasons set forth in the separate opinions which they have prepared and filed this date, which will be published in connection with this opinion.
In view of an equal division of the six justices of the Supreme Court, as to whether the decree appealed from in this case should be affirmed or reversed, the decree will stand affirmed on the authority of State v. McClung, 47 Fla. 224, 37 So. 51.
Affirmed.
[1]
Chapter 11954, Acts 1927, commonly known as the County Officials' Compensation Act, which applies to all county officials which at the time of the passage of that act were paid in whole or in part by fees or commissions, wha not amended by chapter 15798, Acts 1931 (Ex. Sess.), so as to vest in the person occupying the office of tax collector an interest in the fifteen cents to be allowed for certification of each tax sale and the 5 per cent. commission on the amount of each delinquent tax when actual sale is made, nor to the 'commission' for the sale when the certificate may be redeemed. In the first place, the act by its own terms distinguishes between the allowance of 15 cents for each certificate of sale and the 5 per cent. commission on the amount of each delinquent tax; the payment of the latter only is deferred where the sale is made to the state until the certificate is redeemed.
The bill of complaint treats both alike, and the opinion of the majority makes no distinction.
Chapter 11954, supra, was fully explained, its purpose elucidated, and the legislative policy relating to compensation of county officers fully defined in Martin v. Karel (Fla.) 143 So. 317, 321. In that case it was stated that the contention that because the tax collector may have had an interest in part of the fund which he was alleged to have embezzled for his compensation and the expenses of his office which he occupied, bereft the county of all title in or ownership of the residue is It was again stated that:
Article 3, § 27, of the Constitution, requires the...
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