Rogers v. Bandy

• Citation: 132 Fla. 790,182 So. 281
• Court: United States State Supreme Court of Florida
• Decision Date: 14 June 1938
• Parties: ROGERS v. BANDY et al.

182 So. 281

132 Fla. 790

ROGERS v. BANDY et al.

Florida Supreme Court, Division A.

June 14, 1938

Action by C. L. Bandy, individually and as tax collector for Osceola county, Fla., against J. L. Overstreet, as Clerk of the Circuit Court of Osceola county, Fla., wherein Lawrence Rogers intervened, and wherein the question was whether the Clerk of the Circuit Court was required to collect upon sale of tax certificates held by the state for the years 1931 to 1935, inclusive, in addition to the advertising expenses and clerk's costs, an amount sufficient to pay the tax collector issuing the certificates the 5 per cent. commission provided by statute allowed the tax collector on the amount of each delinquent tax and embraced in and a part of the certificate. From an adverse decree, the intervener appeals.

Affirmed. Appeal from Circuit Court, Osceola County Frank A. Smith, judge.

COUNSEL

Lawrence Rogers, of Kissimmee, for appellant.

W. J Steed, of Orlando, and Murray W. Overstreet, of Kissimmee for appellees.

OPINION

BUFORD, Justice.

The appeal brings for review final decree of the Circuit Court of the Ninth Judicial Circuit of Florida, as follows:

'It is ordered, adjudged and decreed as follows:

'That J. L. Overstreet as Clerk of the Circuit Court of Osceola County, Florida, be and he is hereby permanently enjoined and restrained:

'From delivering under the provisions of Chapter 18296, Acts of 1937, any Tax Certificate or Certificates issued to the State for the years 1931 to 1935, both inclusive, to any one, on any bid or bids heretofore or hereafter made by them, under said Act, unless such bid, in addition to all clerks costs and advertising expenses, is in an amount sufficient to pay the plaintiff C. L. Bandy as Tax Collector of Osceola County, Florida, a sum equivalent to five per cent (5%) of the amount of such delinquent tax, as his commission, without first collecting, for Plaintiff, his commission due him.'

The Circuit Court filed an opinion which is made a part of the transcript of the record and, in part, is as follows:

'This cause is submitted to the Court on final hearing on bill and answer for a permanent injunction. There are no facts in dispute and so a final determination depends entirely on questions of law.

'The sole question is whether:

”Under Chapter 18296 Acts of 1937 is the Clerk of the Circuit Court required to collect, upon sale of a tax certificate held by the State for the years 1931 to 1935 both inclusive, in addition to the advertising expenses and Clerk's costs, an amount sufficient to pay the Tax Collector issuing the certificate, the five per cent (5%) commission, provided by Chapter 15789, Acts of 1931, Extra Session, Section 1, (Section 970, C. G. L. Permanent Supplement) allowed the Tax Collector, on the amount of each delinquent tax, and embraced in and a part of the Certificate.'

'Chapter 15798 Acts of 1931 Extra Session, Section 1 (Section 970, C.G.L. Per. Sup.) provides:

”When lands are advertised for taxes under the provisions of this law the tax collector shall be entitled to fifteen cents for certification of sale and shall be entitled to five per cent. commission on the amount of each delinquent tax when actual sale is made, but said tax collector shall not be entitled to any commission for the sale of such property made to the State of Florida until said commission is paid upon the redemption or sale of the tax certificate or certificates issued thereon to the State.'

'Up until 1929 the Tax Collector's commission on certificates sold to the State, was paid by the State. Between 1929 and 1931 the Tax Collectors did not receive the commission unless the certificate was purchased by one other than the State. In 1931 the Legislature no doubt realizing the injustice to the Tax Collectors who had performed their services, and that no provision was made for payment for these services, amended the law by adding the latter part of the above quoted sentence, italicized by me, commencing with the word 'but'. My interpretation of the Act, as amended, leads me to the conclusion that the Legislature intended to see that the Tax Collectors were ultimately paid for their services, but deferred such payment 'until' the time of 'redemption or sale'. The Supreme Court in the case of Lee v. Smith, 111 Fla. 91, 100, 149 So. 67, recognized that 'until' the tax collector 'shall have received' his commission he was 'entitled' to the same, and said (page 68):

"The payment of which was merely postponed until the actual redemption'.

'The Court has held that the Tax Collector, in office at the time of the issuance of the certificates, was entitled to his commission upon redemption or sale. Tyler v. Thomas, 114 Fla. 368, 153 So. 848; Gay, Clerk, v. State ex rel. McKenney, 115 Fla. 584, 155 So. 845; Tyler v. Nobles, 117 Fla. 328, 161 So. 283; National Surety Corporation v. Sholtz, 123 Fla. 110, 166 So. 213.

'It would be necessary to substitute the word 'unless' for 'until' to put the construction on that Chapter that if it was not paid at the time of sale, he would not be entitled to his earned commission for services already performed. Likewise, the word 'upon' relates to the time of enjoyment. Skinner v. Christie, 52 N.J.Eq. 720, 29 A. 772; In re Foster's Will, 133 Misc. 222, 231 N.Y.S. 613, 615; Wright v. Hanna, 210 Pa. 349, 355, 59 A. 1097; In re Dyckman's Will, 138 Misc. 253, 245 N.Y.S. 631, 635; State ex rel. Cosgrove v. Perkins, 139 Mo. 106, 40 S.W. 650, 652; Maginn v. Lancaster, 100 Mo.App. 116, 73 S.W. 368, 372.

'I have also considered the principles set forth in our Florida decisions as shown in State v. Joughin, 103 Fla. 877, 138 So. 392; and State ex rel. Landis v. Tedder, 106 Fla. 140, 143 So. 148.

'I therefore come to the conclusion that a Tax Collector is entitled to his five percent (5%) commission on the amount of the delinquent tax on a tax certificate sold to the State upon redemption or sale of the certificate, and that it was clearly the intention of the Legislature in the enactment of Chapter 15798, Acts of 1931, Ex.Sess., for him to be paid that commission, he being a constitutional officer, having already performed his services in the manner and form as provided by law.

'The question next presented being whether he has a vested right to the commission and has an implied contract for which he is entitled to payment and whether it is a constitutional right that cannot be taken away from him without due process of law without impairing the obligation of his contract.

'This can only be answered in the affirmative on the authority of many controlling cases, such as: Fisk v. Jefferson Police Jury, 116 U.S. 131, 6 S.Ct. 329, 29 L.Ed. 587, where the Supreme Court of the United States stated that after the services of a public official had been rendered under a law which fixed the rate of compensation, there arises an implied contract to pay for those services at that rate; that the contract is a completed contract and its obligation is perfect; that such an obligation can no more be impaired by a law of a state than one arising on a promissory note.

'The same principle was again before the Supreme Court of the United States in the late case of State of Mississippi for Use of Robertson v. Miller, 276 U.S. 174, 48 S.Ct. 266, 72 L.Ed. 517 and in an opinion by Mr. Justice Butler, he stated that 'after services had been rendered by a public officer under a law, specifying his compensation, there arises an implied contract under which he is entitled to have the amount so fixed.' He further stated that a subsequent law which took away part of that compensation would impair the obligation of the implied contract under which he became entitled to the commission.

'The same principles are set forth in Sherrill v. Thomason, 145 Tenn. 499, 238 S.W. 876; Campbell v. City of Boston, 290 Mass. 427, 195 N.E. 802; Limestone County v. Robbins, 120 Tex. 341, 38 S.W.2d 580, and Id., Tex.Civ.App., 42 S.W.2d 159; State ex rel. Pike v. City of Bellingham, 183 Wash. 439, 48 P.2d 602.

'I have also considered State ex rel. Holton v. City of Tampa, 119 Fla. 556, 159 So. 292, 98 A.L.R. 501. I have also considered the text in 22 R.C.L. 525, Section 216.

'I have also considered the case of State ex rel. Kurz v. Lee, 121 Fla. 360, 163 So. 859, 873.

'I, therefore, come to the conclusion that Tax Collectors who have not already received, for each of the years 1931 to 1935, both inclusive, their maximum fees as allowed by law, are entitled to their commission for services already performed upon the 'sale of the tax certificate', which obligation cannot be impaired by the Legislature, and if Chapter 18296, Acts of 1937, by implication deprived the Tax Collectors of their commission, then to that extent, that Act would be unconstitutional.'

We find no error in the opinion.

It conforms to our holding in the recent case of D. S. Weeks, as Clerk of the Circuit Court of Glades County, Florida, v. State of Florida ex rel. J. P. Moore, individually and as Tax Collector of Glades County, 182 So. 280, filed at this term of the Court, not yet reported.

The decree appealed from should be and is affirmed.

WHITFIELD, TERRELL, and CHAPMAN, JJ., concur.

BROWN, J., concurs specially.

CONCURRING

BROWN Justice (concurring specially).

The opinion hereinabove quoted from was written by Judge Frank A Smith, Senior Circuit Judge of the Ninth Judicial Circuit. Circuit Judge M. B. Smith, of the same circuit, who also participated in the decision of the Court below in this case, rendered a special concurring opinion which reached the...