Sims v. Fisher, (No. 9466)

• Decision Date: 26 March 1943
• Docket Number: (No. 9466)
• Citation: 125 W.Va. 512
• Court: West Virginia Supreme Court
• Parties: Edgar B. Sims, Auditor, etc. et al. v. Jake Fisher,Judge, etc.

125 W.Va. 512

Edgar B. Sims, Auditor, etc. et al.

v. Jake Fisher, Judge, etc.

(No. 9466)

Supreme Court of Appeals of West Virginia.

Submitted February 16, 1943.

Decided March 26, 1943.

1. Constitutional Law

Article 4, Chapter 117, Acts of the Legislature, 1941, relating to the sale of lands for the benefit of the school fund, so far as it attempts to require of circuit courts, and this Court, the performance of administrative and non-judicial functions, is unconstitutional.

2. Public Lands

Under Section 4 of Article XIII of the Constitution of this State, the proceeding therein required to be instituted in circuit courts for the sale of lands for the benefit of the school fund, must be a judicial proceeding, requiring process or notice in advance of hearing.

3. Constitutional Law

Sections 4 and 5 of Article XIII of the Constitution of this State, properly construed, require, as a condition precedent to the entry of any order or decree for the sale of lands for the benefit of the school fund, a judicial finding that the land proceeded against is, in fact, subject to sale.

4. Public Lands

A purchase of land by the Public Land Corporation of West Virginia, at a sale of lands for the benefit of the school fund, in a proceeding under Section 4 of Article XIII of the Constitution of this State, is a purchase by the State; and land so purchased can be disposed of only in the manner provided for in said section.

Mandamus proceeding by Edgar B. Sims, auditor, etc., and another against Jake Fisher, Judge of the Circuit Court of Clay County, to require the respondent to entertain and grant prayer of a petition wherein the respondent filed a demurrer.

Writ denied.

Ira J. Partlow, Acting Attorney General, Kenneth E. Hines, Assistant Attorney General, and Dana C. Eakle, for relators.

Jake Fisher, in person.

Fox, Judge:

The Legislature of this State, at its 1941 session, enacted Article 4, Chapter 117, a statute covering the sale for the benefit of the school fund of lands waste and unappropriated, or the title to which has or may hereafter become vested in the State, through escheat, forfeited for nonentry, or purchased at a sheriff's sale of delinquent lands for nonpayment of taxes and not redeemed. The act constitutes the auditor of the State as ex-officio commissioner of forfeited and delinquent lands, and authorizes him to appoint a deputy commissioner in each county of the State. It further provides that on or after the 1st day of January, 1942, and during the month of January in each year thereafter, the auditor, acting as such commissioner, shall certify to the circuit court, and to the deputy commissioner of each county in the State, all lands subject to sale for the benefit of the school fund, requiring each of the four classes of land subject to sale to be separately listed and reported, together with a statement of taxes due on lands forfeited for nonentry, or sold to the State at delinquent sales. Provision is made for the redemption of certain classes of such lands from the deputy commissioner, prior to the sale provided for in the act.

In enacting Article 4 of Chapter 117, the Legislature made the following declaration of its intent and purpose:

"It is the intent and purpose of the Legislature to abolish the existing judicial proceedings for the sale of land for the school fund, and to substitute therefor an administrative ex parte proceeding, thus reverting to the practice originally established and sanctioned in this State. The procedure provided for in this article is designed to convey to the purchaser not an original but merely a derivative title."

The above declaration, while not controlling upon this Court as to what the Legislature actually did, is useful in determining the legal consequences of the enactment. Section 14 of Article 4 of the act reads as follows:

"At any time after certification by the auditor, the deputy commissioner may apply to the circuit court, or to the judge thereof in vacation, for an order fixing a date for the sale and for the first publication of the list and the notice of sale. If the deputy commissioner fails to make such application within thirty days after certification, he shall forfeit one hundred dollars. When such application is made, the court or judge, after fixing the dates, shall order the deputy commissioner: (1) To prepare, as provided in section sixteen of this article, the list of lands to be sold; (2) to publish, on the date fixed, the list and the notice of sale as required by section sixteen of this article; and (3) to sell, on the date fixed for the sale, each unredeemed item for the amount stated in the published list as the amount then due thereon.

"In applying for the order, the deputy commissioner shall give to the court or judge his estimate as to the time necessary for making the computation of the amount due, and the court or judge shall consider that estimate in fixing the date of first publication. The date fixed for the sale shall not be less than sixty nor more than ninety days after the date named in the order for the first publication of the notice."

The petition of the relators, hereinafter mentioned, avers the performance by the auditor of his duties under the act relating to the appointment of a deputy commissioner for Clay County, and the certification to the circuit court of that county, for sale, of the several classes of land subject to sale and situate therein. The respondent is Judge of the Circuit Court of Clay County, and was sitting in term as such circuit court on February 1, 1943, when the relator, Dana C. Eakle, deputy commissioner, filed in said court his petition praying that the court fix a date for the sale of the lands listed and described therein, as provided for in the section of the statute quoted above. The court refused and declined to entertain said petition, and thereupon the relator, Edgar B. Sims, Commissioner of Forfeited and Delinquent Lands of the State of West Virginia, and Dana C. Eakle, deputy commissioner for Clay County, on February 4, 1943, filed their petition in this Court, seeking a writ of mandamus against Jake Fisher, Judge of the Circuit Court of Clay County, praying that we command him, as such Judge, either in term or in vacation of said court "to entertain, consider and grant the prayer of such petition", if and when presented. We awarded a rule to show cause why such writ should not issue, to which respondent appeared, and entered his demurrer to the petition aforesaid, assigning grounds in support thereof, to which, along with briefs filed, we have given consideration.

The controversy largely centers around Section 14 of Article 4 of the act quoted above; but, inasmuch as other matters will be discussed, we deem it proper to outline briefly the purposes sought to be accomplished by the act. Throughout this opinion references to sections should be understood to be to sections of Article 4 of Chapter 117, Acts of 1941.

We have already outlined the provisions of the act up to and including Section 14 thereof. Sections 15, 16, and 17, cover requirements on the part of the clerk of the circuit court, with reference to records necessary to be kept; the publication and posting of lists of land ordered sold; and an application by any person substantially interested to have the amount of taxes and costs for which any land is to be sold reduced. Section 18 provides that any persons substantially interested may apply to the circuit court, or to the judge thereof in vacation, for an order suspending from sale any lands as to which he makes any of the following claims: (1) That all taxes thereon were paid before sale to the State; (2) that the land was redeemed after sale to the State; (3) that the land has not been escheated; (4) that it has not been forfeited for nonentry; (5) that it had been sold to him at a former sale for the benefit of the school fund, and had not been thereafter sold to the State for nonpayment of taxes, or forfeiture for nonentry; and (6) that he had acquired title to the land by transfer under the provisions of Section 3, Article XIII of the Constitution. Section 19 authorizes the circuit court to suspend the sale of land, and provides for a hearing, after which the court may or may not order the sale to proceed. Section 20 provides that a person aggrieved by the refusal of the circuit court to enter what it terms an administrative order, applied for under Section 18 of Article 4, may present a petition in writing to the Supreme Court of Appeals praying for review of such action. Section 21 provides for the sale of land and report thereof to the circuit court. It is required that this report show the tracts redeemed before sale, suspended from sale, or sold, and, if sold, the name of the purchaser. Section 22 provides for the issuance of receipt for the purchase money for any land sold, on a form to be prescribed by the auditor. Section 23 provides that the deputy commissioner shall purchase for the Public Land Corporation of West Virginia, for the amount stated to be due in the published list, any tract on which no bid is made, or where the bid is less than the amount due; and he is also authorized to purchase any escheated or waste and unappropriated land on which no bid is made. It is also provided in this section that if the highest bid on any escheated or waste or unappropriated land is not approved by the court, such land shall be sold to the deputy commissioner, in open court, for the Public Land Corporation, for the amount of the publication and other charges, and provides for the return by him of the purchase money to the person whose bid is not approved. The purchase of any lands by a deputy commissioner, clerk of a county or circuit court, sheriff, assessor, or deputy of either, is prohibited by Section 24. Section 25 provides for the payment of any surplus derived from the sale of lands sold to the former owner, and this surplus is made liable to the claim of his...