State Ex Rel. Dowling v. Butts

• Decision Date: 03 August 1933
• Citation: 149 So. 746,111 Fla. 630
• Parties: STATE ex rel. DOWLING STATE ex rel. SMITH RAGAN v. BUTTS, Clerk of Court (No. 1). STATE ex rel. SMITH RAGAN v. SAME (No. 2). STATE ex rel. SMITH RAGAN v. PEACOCK, Clerk of Court (No. 3).
• Court: Florida Supreme Court

149 So. 746

111 Fla. 630

STATE ex rel. DOWLING STATE ex rel. SMITH RAGAN v. BUTTS, Clerk of Court (No. 1). STATE ex rel. SMITH RAGAN v. SAME (No. 2). STATE ex rel. SMITH RAGAN v. PEACOCK, Clerk of Court (No. 3).

Florida Supreme Court

August 3, 1933

Original mandamus proceeding by the State, on the relation of Hester Dowling, by John Dewitt Dowling, her husband and next friend against Elliot W. Butts, as Clerk of the Circuit Court for Duval County, Florida; original mandamus proceeding by the State, on the relation of H. F. Smith, against Elliot W Butts, as Clerk of the Circuit Court for Duval County Florida; and suit by Guy M. Ragan against John R. Peacock, as Clerk of the Circuit Court for Sarasota County, Florida. Relator in the first case moved for a peremptory writ of mandamus; respondent in the second case moved to quash the alternative writ; and from a decree in the third case denying the injunction prayed for and dismissing the bill, complainant appeals.

Motion in the first case denied; motion in the second case granted; and decree appealed from affirmed.

COUNSEL F. P. Fleming and L'Engle & Shands, all of Jacksonville, John F. Burkett, and Harrison Barringer, both of Sarasota, and Giles J. Patterson, of Jacksonville, for relators.

Crawford & May, of Jacksonville, and Cary D. Landis, Atty. Gen., and Robert J. Pleus and H. E. Carter, Asst. Attys. Gen., for the State.

T. G. Futch, of Leesburg, W. H. Poe, of Orlando, Kay, Adams, Ragland & Kurz, of Jacksonville, and Sutton, Tillman & Reeves, of Tampa, amici curiae.

In the case first above stated, the alternative writ issued by this court alleges that the relators are citizens and residents of Duval county, Fla.; that on August 4, 1930, the tax collector for Duval county issued to the state of Florida tax certificate No. 10965 for the delinquent taxes of the year 1929 upon described real estate; that on the 18th day of June, 1933, Hester Dowling requested respondent, clerk of the circuit court for Duval county, Fla., to sell, assign, and transfer to her the said tax certificate No. 10965, which certificate was then, and still is, in the custody and possession of the respondent, subject to sale or redemption but respondent, alleging that he was prohibited by an act of the legislature, approved June 2, 1933, now chapter 16252, Acts of 1933, Laws of Florida, from selling, assigning, or transferring said certificate or any certificate to said relator or any one else during the period described by said act, declines and refuses for the reasons aforesaid, and for no other reason, to sell, transfer, or assign said certificate No. 10965 to relator; that relator charges that said act is unconstitutional, null, and void, in that it violates section 16, article 3; section 1, article 9; section 8, article 12; section 9, article 12; section 17, article 12; section 5, article 9; section 10, article 9 of the Constitution of Florida, and violates the provisions of the Constitution of the United States guaranteeing the equal protection of the laws.

The command of the alternative writ is that the respondent do sell, assign, and transfer to relator said tax certificate No. 10965 upon the payment of the amount of money required by law to be paid for the purchase of said tax certificate, or to show cause for not doing so.

By the return the respondent in effect admits the allegations of fact contained in the alternative writ but denies that said chapter 16252, Acts of 1933, is unconstitutional, null, and void, and says that even if certain other sections thereof may be of questionable validity, only section 1 of such act is involved in this proceeding and that section 1 can readily be severed from the remainder of said act and given full effect and operation.

The relator moved for a peremptory writ notwithstanding the return, upon the ground that the return states no cause or reason why said peremptory writ should not issue.

In the second case above cited, the alternative writ issued by this court alleges that the relator is the owner of described real estate located in Duval county, Fla., which property is subject to taxation by said county and by the state of Florida; that all taxes levied and imposed against the said property by the said county and state in the year 1932 and prior years have been paid; and in effect alleges that the relator at some time prior to October 1, 1932, was employed as a teacher in one of the free public schools of Duval county by the board of public instruction of such county, and that for such services rendered pursuant to said contract of employment by the relator, said board was indebted to relator in the amount of $100 and was likewise indebted under similar contracts to divers other persons for salaries as teachers and employees in the said public schools for the years 1932 and 1933 in a large aggregate amount--being over $67,000, for which indebtedness certificates were issued, one of which is held by relator, it being dated June 8, 1933. It is also alleged that:

'At the time of issuing said certificate of indebtedness, a large amount of money has been realized annually from the sale and redemption of tax certificates held in the name of the State of Florida by the Clerk of the Circuit Court in and for Duval County, Florida, to-wit, not less than an average of One Hundred Forty Thousand Dollars ($140,000.00) for each of the ten years last past, and that a large part of the fund so realized from said delinquent taxes was realized through the sale of tax certificates, as distinguished from redemption.'

There were other allegations to support a claim or right to require the respondent, clerk of the circuit court, to sell tax sale certificates from the proceeds of which revenue will be obtained for the payment of relator's certificate of indebtedness.

It is alleged that chapter 16252 is invalid on grounds similar to those alleged in the other case.

The command of the alternative writ is that respondent shall sell, transfer, and assign to Hester B. Dowling tax certificate No. 10965, and to sell, transfer, and assign to any other applicant therefor, any and all tax certificates for taxes levied by the state of Florida in the county of Duval held by respondent, upon the payment of the amounts required by law to be paid for the purchase of tax certificates, or to show cause for not doing so.

The respondent moved to quash the alternative writ.

In the third case above stated a citizen taxpayer, on behalf of himself and all other citizens similarly situated, sought to have the clerk of the circuit court enjoined from accepting any kind of county, district, or school bonds, or matured interest coupons therefrom, in lieu of money in redemption of delinquent tax sale certificates as provided by chapter 16252, Acts of 1933, known as Senate Bill No. 597 or as the 'Futch Bill.' The bill of complaint conttains the following:

'Fourth: That there are many persons ready to pay taxes with bonds under the provisions of said law, and the Clerk of said Court, Defendant herein, will accept such bonds in lieu of money under the provisions of said Act, and will cancel the tax certificates affecting the property covered by the taxes of such persons in accord with the provisions of said law, unless restrained by this Honorable Court.

'Fifth: That if said Defendant accepts bonds or matured interest coupons as provided in said law in lieu of money from the many persons who are ready to pay their taxes in bonds as allowed under said law, Plaintiff as a tax payer will be specially injured by reason of the increased public burden which will result therefrom, in that the taxes of said County assessed for the various tax years of 1931 and preceding years has provided funds only for the various county purposes, and to be paid in money, and if portions thereof are allowed to be paid in bonds, an insufficient amount of money for County purposes will result, thereby necessitating an increased millage or tax assessment for the fiscal year 1933-1934 upon all property within the County, including that of Plaintiff.'

As in the other two cases it is alleged that such enactment violates designated provisions and principles of organic law. The court denied the injunction and dismissed the bill. Complainant appealed.

'Futch Bill

'Chapter 16252, Acts of 1933

'(Senate Bill No. 597)

'An Act to provide for the Settlement of Delinquent Taxes on Real Estate in the State of Florida, and to Further Defer the Enforcement of Liens for such Delinquent Taxes, and for the Assessment of Lands Upon or Against which Taxes are Delinquent and for the Redemption of Delinquent Tax Certificates with Bonds.

'Be It Enacted by the Legislature of the State of Florida:

'Section 1. All tax certificates and liens for delinquent taxes against real estate in the State of Florida held by the State of Florida for taxes against any such real estate for the year 1931 and all previous years, whether suits for the enforcement thereof are now pending or not, shall be held by the State of Florida without sale or enforcement for and during the period of time beginning with the date upon which this Act shall become effective, and ending with the first day of July, 1938, and during such period no such tax certificate or lien for delinquent taxes held or owned by the State of Florida shall be sold or transferred to any person or persons whomsoever than the actual bona fide owner of the fee title to such real estate. Provided that nothing herein contained should in any wise repeal or abrogate the requirements of House Bill No. 303 passed at this Session.

'Section 2. During the period of time mentioned, described and set out in Section 1 of this Act the actual bona fide owner or owners to the fee...