State ex rel. Morgan v. Miller

• Decision Date: 19 November 1986
• Docket Number: No. 16870,16870
• Citation: 350 S.E.2d 724,177 W.Va. 97
• Parties: STATE of West Virginia ex rel. Ken MORGAN v. The Honorable Margaret D. MILLER, Clerk of the County Commission of Kanawha County, West Virginia.
• Court: West Virginia Supreme Court

Page 724

350 S.E.2d 724

177 W.Va. 97

STATE of West Virginia ex rel. Ken MORGAN v. The Honorable Margaret D. MILLER, Clerk of the County Commission of Kanawha County, West Virginia.

No. 16870.

Supreme Court of Appeals of West Virginia.

Nov. 19, 1986.

Syllabus by the Court

1. "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. "Persons seeking to obtain complete title to property sold for taxes must comply literally with the statutory requirements." Syl. pt. 1, Cook v. Duncan, --- W.Va. ---, 301 S.E.2d 837 (1983).

3. Noncompliance with the mandatory requirements of West Virginia Code § 11A-3-20 (1983 Replacement Vol.) is a jurisdictional defect not subject to curative measures. Syl. pt. 1, Shaffer v. Mareve Oil Corp., 157 W.Va. 816, 204 S.E.2d 404 (1974).

4. "Legal holidays are generally created either by legislative enactments or by gubernatorial or presidential proclamations authorized by general legislation." Syl. pt. 1, Pullano v. City of Bluefield, --- W.Va. ---, 342 S.E.2d 164 (1986).

5. Pursuant to West Virginia Code § 7-3-2 (1984 Replacement Vol.), a county commission has the authority to regulate the hours that the county courthouse will remain open, but the county commission does not have authority to designate legal holidays for the purpose of closing the courthouse. The only legal holidays on which the courthouse may be closed are those which the Legislature has designated or authorized.

6. "A statute is general when it operates uniformly on all persons and things of a class and such classification is natural, reasonable and appropriate to the purpose sought to be accomplished." Syl. pt. 2, State ex rel. Taxpayers Protective Ass'n of Raleigh County v. Hanks, 157 W.Va. 350, 201 S.E.2d 304 (1973).

7. "A classification within a statute, which excludes without any reasonable basis certain counties which would otherwise be subject to a general law on the same matter, is arbitrary and violative of Article VI, Section 39 of the Constitution of West Virginia, forbidding special laws." Syl. pt. 4, State ex rel. Taxpayers Protective Ass'n of Raleigh County v. Hanks, 157 W.Va. 350, 201 S.E.2d 304 (1973).

8. The language in West Virginia Code § 7-3-2 (1984 Replacement Vol.), "and may, with the consent of the county commission in counties having a population in excess of one hundred thousand be closed on Saturday," is unconstitutional under article VI, section 39 of the West Virginia Constitution because it creates an arbitrary classification which frustrates the purpose of the statute.

9. In order to provide access to the citizens of West Virginia, county courthouse offices must be kept open Monday through Saturday, excluding Sundays and state or national legal holidays, pursuant to the portions of West Virginia Code § 7-3-2 (1984 Replacement Vol.) which are free from constitutional defect.

10. The clerk of the county commission is without jurisdiction to undertake the procedures necessary to convey title to the tax purchaser when a tax purchaser fails to file the reports required under West Virginia Code § 11A-3-20 (1983 Replacement Vol.) within the statutory filing period.

11. Issuance of a writ of mandamus is prohibited where it would compel a clerk of a county commission to act in contravention of the mandatory filing requirements established by West Virginia Code § 11A-3-20 (1983 Replacement Vol.) and the public policy formulated by the Legislature favoring the security of land titles.

12. The right of a landowner to have the mandatory provisions of West Virginia Code § 11A-3-20 (1983 Replacement Vol.) complied with literally before he is deprived of his land is fundamental, and it cannot be circumvented because of the failure of a clerk of a county commission to have his or her office open as required by statute.

13. In the case of noncompliance with West Virginia Code § 11A-3-20 (1983 Replacement Vol.), the law is clear: "For failure to meet these requirements, the purchaser shall lose all the benefits of his purchase." W.Va.Code § 11A-3-20 (1983 Replacement Vol.).

14. "It is well established that the word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syl. pt. 1, Nelson v. West Virginia Public Employees Ins. Bd., --- W.Va. ---, 300 S.E.2d 86 (1982).

Robert P. Martin, Charleston, for appellant.

Beverly Selby, Asst. Pros. Atty., Charleston, for appellee.

McGRAW, Justice:

This is an appeal from a final order of the Circuit Court of Kanawha County, entered February 8, 1985, which denied the writ of mandamus sought by the appellant, Ken Morgan, to compel the appellee, Margaret D. Miller, Clerk of the County Commission of Kanawha County, to file certain reports nunc pro tunc as of December 31, 1984. Such a retroactive filing would allow the appellant to comply with the requirements of West Virginia Code § 11A-3-20 (1983 Replacement Vol.), ¹ which sets forth what a purchaser of real estate at a tax sale must do in the year following the tax sale before a deed for the real estate can be secured. The question presented on appeal is whether a tax sale purchaser who failed to file certain reports within the statutory filing period, but who claims that he could have complied with the statute but for the clerk's office being improperly closed, is entitled to a writ of mandamus compelling the clerk to make the filings retroactive to the final day allowed for filing under the statute. For the reasons set forth below, we conclude that the appellant is not entitled to a writ of mandamus, and we affirm the judgment of the circuit court denying the extraordinary remedy prayed for.

I.

Pursuant to West Virginia Code § 11A-3-20, a purchaser at a tax sale will lose all the benefits of his purchase unless each of the following three items are accomplished by or on behalf of the purchaser on or before December 31 of the year following the sale: (1) secure and file with the clerk of the county commission a survey or report of the real estate purchased; (2) examine the title in order to prepare a list of those to be served with notice to redeem and request the clerk of the county commission to prepare and serve the notice to redeem; and (3) deposit, or offer to deposit, with the clerk of the county commission a sum sufficient to cover the cost of preparing and serving the notice to redeem.

In November 1983, the appellant appeared at a sale of land for delinquent taxes conducted by the sheriff of Kanawha County, at which time he was the successful bidder for the purchase of six parcels of land situate in various parts of Kanawha County. On November 15, 1984, the appellant retained counsel to perform title examinations on the real estate purchased and to prepare and file with the clerk the information needed to prepare and serve the notice to redeem. The appellant's counsellor completed the title examinations and certifications on Sunday, December 30, 1984, and on that same day he requested a land surveyor licensed in West Virginia, doing business in Charleston, to examine the real estate purchased and to prepare survey reports for filing with the clerk's office. ² The surveyor responded that he could not commence work on the survey reports until Monday, December 31, 1984. The appellant's counsellor instructed the surveyor to proceed "as best as he could" on December 31, 1984.

The brief filed on behalf of the appellant indicates that the appellant's counsellor was "advised" on December 31, 1984, that the clerk's office was closed on that day, and that it would be impossible for him to tender the title examination reports and survey reports for filing on that day. However, both the appellant's brief and the record designated by the parties are silent as to who "advised" the appellant's counsellor concerning this matter. On the other hand, the record does show that the appellant's counsellor did not make an effort to file the reports on December 31, 1984. Instead, he instructed the surveyor to have the survey reports prepared and ready for filing on Wednesday, January 2, 1985. On January 2, 1985, the appellant's counsellor appeared in the clerk's office with the title examination reports and the survey reports and attempted to tender those documents to a deputy clerk for filing nunc pro tunc as of December 31, 1984. The deputy clerk advised him that the reports could not be filed on January 2, 1985, because they were required to have been filed on or before December 31, 1984, pursuant to West Virginia Code § 11A-3-20.

A petition was subsequently filed by the appellant in the Circuit Court of Kanawha County praying for the issuance of a writ of mandamus to compel the clerk to accept and file the reports nunc pro tunc as of December 31, 1984, in order to allow compliance with the requirements of West Virginia Code § 11A-3-20. The appellant alleged that the clerk's office was improperly closed on December 31, 1984, the last day for filing the reports under the statutory filing period, and that but for the clerk's office being closed he would have been able to comply with the statute. ³ Thus, the appellant argued that it was the clerk's duty to file the reports on the next regular business day, January 2, 1985. The appellant took the position that West Virginia Code §§ 2-2-1 (Cum.Supp.1984) ⁴ and 2-2-2 (1979 Replacement Vol.), ⁵ which provide that if any act is directed to be done on a day that falls on a Saturday, Sunday or legal holiday, then the next day which is not a Saturday, Sunday or legal holiday shall be deemed to be the day intended, should apply to authorize the...