Messer v. Lang

• Decision Date: 07 October 1937
• Citation: 176 So. 548,129 Fla. 546
• Parties: MESSER SAME v. LANG, Clerk. SAME v. LEE, Comptroller, et al.
• Court: Florida Supreme Court

176 So. 548

129 Fla. 546

MESSER SAME v. LANG, Clerk. SAME v. LEE, Comptroller, et al.

Florida Supreme Court

Oct 7, 1937

Rehearing Denied Nov. 12, 1937.

Two suits by James Messer, Sr., against Paul V. Lang, as Clerk of the Circuit Court of Leon County, and against J. M. Lee, as Comptroller of the State, and another. From an adverse decree, plaintiff appeals.

Affirmed in part, and reversed in part.

ELLIS C.J., dissenting. Appeal from Circuit Court Leon County; J. B. Johnson, Judge.

COUNSEL

William Blount Myers, of Tallahassee, for appellant.

Cary D Landis, Atty. Gen., H. E. Carver, W. P. Allen, and John L Graham, Asst. Attys. Gen., and John Ward Henderson, of Tallahassee, for appellees.

Treadwell & Treadwell, of Arcadia, Evans, Mershon & Sawyer, of Miami, McKay, Macfarlane, Jackson & Ramsey, of Tampa, Sheppard & Clements, of Fort Myers, D. C. Hull and Hull, Landis & Whitehair, all of DeLand, Claude Ogilvie and M. H. Moyer, both of Jacksonville, and H. H. Wells, B. K. Roberts, and William K. Whitfield, all of Tallahassee, amici curiae.

OPINION

TERRELL Justice.

Appellant, James Messer, Sr., filed two suits in equity in the circuit court of Leon county challenging the constitutional validity of committee substitute for House Bill No. 396, chapter 18296, Acts of 1937, relating to the sale of tax certificates and 'subsequent omitted or levied taxes.'

The bill of complaint in both suits is filed on the theory that complainant was a taxpayer of Leon county, Fla., that he has paid his taxes for ten years last past, and that to permit redemptions to delinquent taxpayers in the manner provided by chapter 18296, Acts of 1937, would be arbitrary and an unlawful delegation of power to the clerk of the circuit court and would be in derogation of the equal protection clause of the Fourteenth Amendment, including section 1 of article 9 of the State Constitution.

In the first suit, Paul V. Lang, as clerk of the circuit court was made a party defendant and the bill prayed that he be restrained from selling the tax certificates described in the bill of complaint or from selling or disposing of any other tax certificates pursuant to chapter 18296, including subsequent and omitted taxes.

In the second suit, J. M. Lee, as comptroller, and W. V. Knott, as state treasurer, were named parties defendant. As to J. M. Lee, the bill prayed that he be restrained from expending public funds to prepare, print, and distribute forms, and records for the purpose of effectuating chapter 18296. As to W. V. Knott, the bill prayed that he be restrained from assigning, transferring, or canceling any tax certificates pursuant to authority vested in him by chapter 18296.

Identical questions were raised in both cases. On application for temporary restraining order in each case, the chancellor held sections 6 and 11 of the act unconstitutional, but upheld it in all other respects. On authority of section 12, he eliminated sections 6 and 11 and denied the restraining order. This appeal is from that decree.

We discuss first the ruling of the chancellor on sections 6 and 11. Section 6 is as follows:

'In the event any tax certificate together with subsequent or omitted taxes are purchased under terms of this Act by any person or persons or corporation, not the owner of the land described in such certificate then at the expiration of two years from the date of such sale of such certificate such purchaser shall have the right to apply for tax deed as now provided by law for land described in such certificate, provided that for two years from date of sale of such certificate the owner of said land, that is, the person who held title to said land on date, said certificate became two years old or any grantee of such person, or their legal representative or anyone holding any lien on such land, shall have the right to redeem such land from any or all such tax certificates are sold by the payment to purchaser thereof the amount bid therefor plus 3% per annum from the date of such certificate together with all costs paid by such purchaser in connection with purchasing said certificate.'

Section 11 of the act is in substantially the same wording as section 6 except that it applies to the redemption of homesteads and allows the owner ten years from date of sale of the certificate to redeem instead of two years allowed for the redemption of other lands under section 6.

The chancellor held there two sections unconstitutional because they select and classify delinquent taxpayers 'as the beneficiaries of special tax concessions with reference to unpaid current taxes' and because they discourage 'competitive bidding by reason of the low rate of interest allowed to buyers other than the owner and by giving the owner the right to redeem where the property is bought by an outside bidder for a period of two years as to all property not homestead and for ten years as to homestead property.'

It is not charged that, within the classification made, there is any distinction made between homestead and nonhomestead owners. It is quite true that sections 6 and 11 make liberal concessions to homestead and other real estate owners but both the classification and the concessions have been made in every tax sale statute of which we are aware and we have examined many. As to homesteaders, the concessions are more liberal and are guaranteed by the Constitution. They have been approved by this court as we shall presently show. The low rate of interest, and in fact, every other element of sections 6 and 11, treated questions of legislative policy with which we are not concerned.

The primary question with which we are concerned is whether or not in authorizing the sale of tax certificates held by the state which are more than two years old, together with subsequent omitted and levied taxes, chapter 18296 violates the due process and equal protection clause of the Fourteenth Amendment or section 1 of article 9 of the State Constitution or both.

Appellants concede that the Legislature may authorize the sale of tax certificates held by the state which are more than two years old on such terms as it may deem proper, but they contend that it is devoid of power to compromise, adjust, or remit 'subsequent omitted and levied taxes' thereon on any terms and available to all taxpayers. They rely on Richey v. Wells, 123 Fla. 284, 166 So. 817, City of Marianna v. Davis, 124 Fla. 145, 169 So. 50, and like cases to support this contention.

In Richey v. Wells, the case primarily relied on by appellants, we were confronted with an assault on chapter 17406, Acts of 1935, creating delinquent tax adjustment boards in each county of the state, a delinquent tax adjustment board of appeals in the state, and authorizing them to compromise and adjust tax sale certificates held by the state for the year 1933, or any previous year, including 'omitted subsequent taxes.'

A majority of the court held the act in violation of the equal protection clause of the Fourteenth Amendment, in so far as it applied to 'omitted subsequent taxes,' on the ground that the power to compromise and adjust was vested solely in the sound discretion of the tax adjustment board, that no standard was set up for administering the act, and that it permitted compromise and adjustment of current or 'omitted subsequent taxes' upon delinquent tax certificated lands on terms not available alike to all taxpayers. In other respects, the validity of the act was approved.

As against the contention of appellants, appellees contend that the cases at bar are ruled by Ridgeway v. Peacock, 100 Fla. 1297, 131 So. 140, wherein the court was confronted with an assault on the constitutional validity of chapter 14572, Acts of 1929, Ex.Sess., § 42 of which provided for the sale of tax certificates held by the state to the highest bidder for cash. The act applied to certificates issued upon sales for the nonpayment of taxes for the year 1927 or previous years, 'together with all omitted subsequent taxes upon the land covered thereby.'

A certificate describing lands claimed by Ridgeway was sold under the act and he attempted to restrain its delivery to the purchaser on the ground that the amount bid for it was much less than the face of the certificate, including subsequent omitted taxes, that the purchaser had refused to sell it to him (Ridgeway) for less than the face of the certificate, including subsequent omitted taxes and penalties, and for various other reasons not essential to relate.

The court below denied the relief prayed for and upheld the sale against all attacks. On appeal to this court, the judgment below was affirmed, and we further held that, after the period of redemption had expired, the privilege to redeen may be modified by statute if that privilege is not a part of the certificate holder's contract right.

By its terms chapter 18296, Acts of 1937, provides for the sale at public auction to the highest bidder for cash of all tax sale certificates held by the state that are more than two years old, with 'subsequent omitted or levied taxes.' The statute, in other words, does not attempt to deal with any tax certificates except those in which the period for redemption has passed and title vested in the state.

In Ridgeway v. Peacock, supra, we held that, after the period of redemption expires, the state may dispose of tax certificates held by it on any adequate terms prescribed by law without violating the rights of owners or other taxpayers. Such was the effect of Ridgeway v. Reese, 100 Fla. 1304, 131 So. 136; State ex rel. Dowling v. Butts, 111 Fla. 630, 149 So. 746, 89 A.L.R. 946; Ranger Realty Co. v. Miller, 102 Fla. 378, 136 So. 546.

In every one of the cases last cited, the court had under review ...