Roesch v. State

• Court: Florida Supreme Court
• Writing for the Court: [62 Fla. 264] PARKHILL, J. PARKHILL, J.
• Citation: Roesch v. State, 56 So. 562, 62 Fla. 270 (Fla. 1911)
• Decision Date: 17 October 1911
• Parties: ROESCH, Clerk of Court v. STATE ex rel. WYMAN.

56 So. 562

62 Fla. 270

ROESCH, Clerk of Court v. STATE ex rel. WYMAN.

Florida Supreme Court, Division B.

October 17, 1911

On Rehearing, Oct. 27, 1911.

Error to Circuit Court, Manatee County; J. B. Wall, Judge.

Application by the State, on the relation of A. F. Wyman, for a writ of mandamus against Robert H. Roesch, Clerk of the Circuit Court of Manatee County. From a judgment granting the writ defendant brings error. Reversed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

The provisions of our statutes require the owner of land that has been sold for the nonpayment of the special assessment for drain or ditch purposes to pay interest thereon at the rate of 25 per cent. per annum for the first year and 8 per cent per annum thereafter upon redemption of the land from the sale thereof.

COUNSEL

Chas. T. Curry and O. T. Stanford, for plaintiff in error.

Singeltary & Reaves, for defendant in error.

OPINION

PARKHILL, J.

By this proceeding in mandamus, the relator, Wyman, seeks to compel the clerk of the circuit court for Manatee county to accept a certain sum of money tendered to the clerk in redemption of land sold for taxes. The lands of relator described in the petition were assessed in 1906 for state and county taxes and also for a special drainage tax, under provisions of section 955 of the General Statutes of 1906. The assessment not having been paid, the land was sold in 1907 by the tax collector and a tax sale certificate issued to the state including both the general assessment of taxes for state and county purposes and the special assessment for ditch purposes. In 1910 the relator tendered to the respondent, as clerk of the circuit court, a sum of money equal to the general assessment of taxes for state and county purposes and the accrued taxes for subsequent years, together with interest thereon at the rate of 25 per cent. for the first two years and 8 per cent. thereafter, as required by law also the amount due as special taxes for ditch purposes, with the interest thereon of 6 per cent. per annum.

The clerk refused to accept said amount in redemption of the land sold for taxes, claiming that the relator should pay 25 per cent. interest for the first two years and 8 per cent. thereafter on the ditch assessment, instead of 6 per cent. therefor as tendered by relator.

The court issued an alternative writ, which was answered by the respondent, and upon a hearing made the alternative writ peremptory, and respondent appeals.

The petition shows that relator owns the land described therein; that during the year 1904 a public drain was established in pursuance of the provisions of chapter 5035, Acts of 1901, now known as chapter 16 of the General Statutes of 1906; that among other lands duly assessed for the construction of such drain was the land described in the petition and belonging to relator; that upon said lands of relator there was assessed the sum of $155, for the expense of constructing said drain, to be levied by the tax assessor in annual installments of one, two, three, and four years; that relator paid all the taxes assessed against his said property up to and including the year 1907, but failed to pay the taxes and assessments thereon for the year 1907, which were as follows:

For state taxes ..........	$ 3 00
For county taxes ............	7 60
For special school tax ......	1 20
For cedar hammock drain ...	195 04
	-------
Total .................	$206 84

Upon failure of relator to pay the taxes and special assessment on his land for the year 1907, the same was sold, and a tax certificate therefor was issued to the State Treasurer for $217.63, which certificate is held by respondent herein, as clerk of the circuit court, subject to redemption as provided by law.

No question is raised here as to the validity of the special assessment for the cedar hammock drain. The contention of relator is that he is not liable to a penalty of interest at 25 per cent. per annum for the first two years and 8 per cent. thereafter, but is liable only for the amount of the special assessment, with 6 per cent. per annum, together with costs incident to the sale and redemption.

The provisions of section 955 of the General Statutes of 1906 provide that the special assessment for drain or ditch purposes shall be collected by the tax collector in like manner as other taxes are collected, and made a special fund for the cancellation or redemption of the indebtedness incurred in the construction of said ditch, canal, or drain.

Section 956 of the General Statutes of 1906 provides that when such assessment has been ordered by the county commissioners they may issue scrip, bearing 6 per cent. interest, upon which they may borrow money with which to pay for the work aforesaid; and such scrip shall be made a lien upon the lands assessed until such scrip shall be redeemed and the indebtedness fully satisfied. This scrip bears 6 per cent. interest; but this section does not mean that the special assessment or tax for drain purposes, when unpaid, shall bear 6 per cent. interest. The intention is that the taxes levied as a special assessment for drain purposes are to be collected and made a special fund for the payment of the scrip, and interest thereon at 6 per cent. per annum.

There does not seem to be any provision in chapter 16 of the General Statutes for the collection of any interest on the unpaid special drain assessment when the owner of the land redeems it from tax sale, unless by section 955 of the General Statutes of 1906, providing that said assessment shall be collected by the tax collector in like manner as other taxes are collected; interest at the rate of 25 per cent. per annum for the first year and 8 per cent. per annum thereafter from the date of sale, as provided in section 570 of the General Statutes of 1906, must be paid, where any person owning land sold for taxes redeems the same after such sale; and other provisions of the general tax laws to be mentioned hereafter.

The special drain assessment shall be collected by the tax collector in like manner as other taxes are collected. The tax collector gets his authority to collect delinquent taxes from a warrant, under the hand of the assessor, annexed to the assessment roll. This warrant (section 535 of the General Statutes of 1906) commands the tax collector to collect the taxes set down in the roll by levy and sale of the lands so assessed, and to pay to the county treasurer all sums collected for county taxes, district school taxes,and other special taxes. The assessment for drain purposes is a special tax. The collector is authorized by section 558, General Statutes of 1906, to advertise and sell real estate for unpaid taxes, including, of course, the unpaid special taxes or assessments.

The tax sale certificate sets forth the sum for which the real estate was sold. This sum includes, of course, the special taxes levied for drain purposes. Then section 570 provides that any person owning such land sold for taxes may redeem the same after such sale by paying the clerk of the circuit court the face of the certificate of sale, with interest thereon at the rate of 25 per cent. per annum for the first year and 8 per cent. per annum thereafter.

These provisions would seem to require the owner of real estate sold for taxes, whether for general county purposes or special drain purposes, to pay interest at the rate of 25 per cent. per annum for the first year and 8 per cent. per annum thereafter, when he redeems his land from tax sale.

The case of Jackson Fire Clay, Sewer Pipe & Tile Co. v Snyder, 93 Mich. 325, 53 N.W. 359, is not in point. That case holds that the provisions of the drain law of 1885 (Pub. Acts 1885, No. 227...