State Ex Rel. Hurner v. Culbreath

• Decision Date: 06 October 1939
• Citation: 140 Fla. 634,192 So. 814
• Parties: STATE ex rel. HURNER v. CULBREATH, Clerk of Circuit Court, et al.
• Court: Florida Supreme Court

192 So. 814

140 Fla. 634

STATE ex rel. HURNER v. CULBREATH, Clerk of Circuit Court, et al.

Florida Supreme Court

October 6, 1939

Rehearing Denied Jan. 16, 1940.

Original proceeding by the State, on the relation of F. T. Hurner, for a writ of mandamus, commanding Myrtle M. Culbreath individually and as Clerk of the Circuit Court of Hillsborough County, to accept a stated sum from relator cancel tax certificates held by the state and issue a receipt to relator for all subsequent and omitted taxes on lands described in certificates, and commanding Fred P. Cone Governor of the State of Florida, and others, as trustees of the Internal Improvement Fund, to rescind their instructions to the clerks of the circuit court as to ownership, sale or disposition of such lands. On a motion to quash the alternative writ.

Motion granted.

COUNSEL

John W. Cone, H. C. Tillman, John Twomey, and Ralph A. Marsicano, all of Tampa, for relator.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty. Gen., for respondents.

William E. Thompson, of Tampa, and W. H. Poe, of Orlando, amici curiae.

OPINION

TERRELL Chief Justice.

The legislature of 1937 enacted Chapter 18296 providing for the sale of certain tax certificates held by the State and for the vestiture of title to all lands against which there remains outstanding tax certificates which are more than two years old in the State of Florida. Section 9 of said act is as follows:

'This Act shall remain in full force and effect for two years from the date same shall become a law and at expiration of such four year period, then the fee simple title to all lands, against which there remains outstanding tax certificates which on the date this Act becomes a law, are more than two years old, shall become absolutely vested in State of Florida, and every right, title or interest of every nature or kind whatsoever of former owner of said property or anyone claiming by, through, or under him, or anyone holding lien thereon shall cease, terminate and be at an end, and the State of Florida thereafter, through the Trustees of Internal Improvement Fund shall be authorized and empowered to sell the said lands to the highest and best bidder for cash at such time and after giving such notice and according to such rules and regulations as may be fixed and adopted from time to time by the said Trustees of the Internal Improvement Fund.

'After the expiration of two years from date this Act shall become a law no court in this State, either Federal or State shall have jurisdiction to entertain any suit brought by the former owner of said land or anyone claiming by, through or under him for the purpose of questioning, or in any way litigating or contesting the title of the State of Florida, or its grantee to said land.'

The relator contending Section 9 to be invalid, brought this proceeding to redeem lands held by him in Hillsborough County which had become vested in the State under the terms of said act. The amended alternative writ commands the respondent, Myrtle M. Culbreath, as Clerk of the Circuit Court, to forthwith accept from relator a sum named and to cancel the tax certificates held by the State of Florida, described therein, and to issue relator a receipt in full for all subsequent and omitted taxes on his lands described in said certificates.

As to respondents, trustees of the Internal Improvement Fund, the amended alternative writ commands them to forthwith assemble and rescind any and all instructions issued by them to the Clerks of the Circuit Court with reference to the ownership, sale, or disposition of any and all lands vested in the State under the terms of said act.

Different phases of Chapter 18296, Acts of 1937, have been before this Court and were adjudicated in the following cases: Messer v. Lang, Clerk, 129 Fla. 546, 176 So. 548, 113 A.L.R. 1073; State ex rel. Stephens Timber Co. v. Lang, Clerk, 131 Fla. 216, 179 So. 401; State ex rel. Hughes v. Caruthers, Clerk, 131 Fla. 840, 180 So. 27; Rogers v. Bandy et al. 132 Fla. 790, 182 So. 281; Leatherman, Clerk Circuit Court v. State ex rel. Somerset Co., 133 Fla. 630, 182 So. 831; State ex rel. Northern Investment Corp. v. Lee, Fla., 187 So. 368. The constitutional validity of Section 9 was not raised or considered in any of these cases.

It is first contended that Section 9 is violative of the due process clause of the State and Federal Constitutions (the Fourteenth Amendment of the Federal Constitution, U.S.C.A., and Section 12, Declaration of Rights, Constitution of Florida), in that it provides for a forfeiture of relator's lands for failure to pay taxes for a period of four years or more and makes no provision for notice and an opportunity to protest against the invalidity of the assessment.

If it is true that a forfeiture actually took place after failure to pay taxes for four years without opportunity to redeem, there might be substance to this contention but an examination of the act in connection with related acts does not bear out this contention. In the first place, Chapter 18296 is limited in its operation to 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, including subsequent omitted or levied taxes. It does not attempt the sale of any tax certificates except those in which the period of redemption has passed and title to the lands has vested in the State for nonpayment of taxes. Section 1027(796), C.G.L.

Clothed in more concise and direct lingo, relator says that Chapter 18296 converts a mere lien into a forfeiture and vests in the State an indefeasible title without notice or opportunity on the part of the owner to protest the illegality of the assessment or to redeem the property from the sale.

This notwithstanding the fact that it is admitted that the taxes on the lands covered by the certificates had been regularly assessed, that relator was on knowledge of the assessment, that he deliberately passed up his opportunity to appear before the County Commissioners as a board of equalization and protest the illegality of the assessment. But that is not all. He later saw his lands advertised for sale, saw them sold, and certificated to the State for nonpayment of taxes; he let the two year redemption period expire and while at any of these stages, he could have gone into Court and protected his rights, he neglected to do so. In other words, when Chapter 18296 was enacted, all the provisions of Section 929 et seq., Compiled General Laws of 1927 for the assessment, equalization, advertisement, sale, and redemption of lands for the nonpayment of taxes had been complied with. In the face of such a showing, he will not now be permitted to say that he did not have notice and an opportunity to be heard in opposition to the sale of his lands or to question the validity of his taxes. Section 9, Chapter 18296, terminates the privilege to redeem title vested in State by Section 1027, Compiled General Laws.

The body and preamble to Chapter 18296 disclose that as a result of the boom of 1925 and the depression which followed, the delinquent tax situation had gotten in bad condition. The State had acquired approximately one hundred million dollars worth of tax liens for the nonpayment of taxes, the result being that not only had this amount of property gone off the tax books but the burden on those that were still paying their taxes had become oppressive and unbearable.

The very purpose of Chapter 18296 was to relieve this situation. It dealt only with lands certificated to the State under Section 929 et seq., Compiled General Laws of 1927, and in effect said to the former owners if at any time within two years from the passage of this act, you will pay the cost of the sale of said certificates, you may have the privilege of redeeming your lands with all subsequent taxes remitted but that if you fail in this the title of the State will become absolutely vested and sale thereof will be made by the trustees of the Internal Improvement Fund to the highest and best bidder for cash.

It will thus be seen that the real purpose of Chapter 18296 was not to divest in the first instance but to give former owners a chance to redeem lands they had previously forfeited after every indulgence and constitutional right to save them had been extended but ignored. If the State cannot provide for a forfeiture of title under such circumstances, then it would be difficult to conceive a case in which it could. King v. Mullins, 171 U.S. 404, 18 S.Ct. 925, 43 L.Ed. 214; Chapman v. Zobelein, 237 U.S. 135, 35 S.Ct. 518, 59...