Messer v. Lang Messer v. Lee

176 So. 548, 129 Fla. 546, 113 A.L.R. 1073, 1937 Fla. LEXIS 1146

• Court: Supreme Court of Florida
• Decided: October 7, 1937
• Status: Published

Opinions

Terrell, J.

Appellant, James Messer, Sr., filed two suits-in equity in the Circuit Court of Leon County challenging the constitutional validity of committee substitute for House. Bill Number 396, Chapter 18296, Acts of 1937, relating to the sale- of Tax Certificates and “subsequent omitted or levied taxes.”

The bill of complaint in both suits is filed on the theory that complainant was a taxpayer of Leon County, Florida, that he has paid his taxes for ten years last past and that to permit redemptions to delinquent taxpayers in the manner provided by Chapter 18296, Acts of 1937, would be arbitrary and an unlawful delegation of power to the clerk of the Circuit Court and would be in ■ derogation of the equal protection clause of the fourteenth amendment including Section 1 of Aritcle IX of the State Constitution.

In the first suit, Paul V. Lang,.as Clerk of the Circuit Court was made a party defendant and the bill prayed that he be restrained from selling the tax certificates described in the Bill of Complaint or from selling or disposing of any other tax certificates pursuant to Chapter 18296, including subsequent and omitted taxes.

In the second suit, J. M. Lee, as Comptroller, and W. V. Knott, as State Treasurer, were named parties defendant. As to J. M. Lee, the bill prayed that he be restrained from expending public funds to prepare, print and distribute forms and records for the purpose of effectuating Chapter 18296. As to W. V. Knott, the bill prayed that he be restrained from assigning, transferring, or cancelling any tax certificates pursuant to authority vested in him by Chapter 18296.

Identical questions were raised in both cases. On application for temporary restraining' order in each case, the chancellor held Sections 6 and 11 of the Act unconstitutional but upheld it in all other respects. On authority of Section 12, he eliminated Sections 6 and 11 and denied the •restraining order. This appeal is from that decree.

We discuss first the ruling of the chancellor on Sections 6 and 11. Section 6 is as follows:

“In the event any tax certificate together with subsequént or omitted taxes are purchased under terms of this Act by any person or persons or corporation, not the owner of the land described in such certificate then at the expiration of two years from the date of such sale of such certificate such purchaser shall have the right to apply for tax deed as now provided by law for land described in such certificate, provided that for two years from date of sale of such certificate the owner of said land, that is, the person who held title to said land on date, said certificate became two years old or any grantee of such person, or their legal representative or anyone holding any lien on such land, shall have the right to redeem such land from any or all such tax certificates so sold by the payment to purchaser thereof the amount bid therefor plus 3% per annum from the date of such certificate together with all costs paid by such purchaser in connection with purchasing said certificate.”

Section 11 of the Act is in substantially the same wording as Section 6 except that it applies to the redemption of homesteads and allows the owner ten years from date of sale of the certificate to redeem instead of two years allowed for the redemption of other lands under Section 6.

The chancellor held these two sections unconstitutional because they select and classify delinquent taxpayers “as the beneficiaries of special tax concessions with reference to unpaid current taxes” and because they discourage “competitive bidding by reason of the low rate of interest allowed to buyers other than the owner and by giving the owner the right to redeem where the property is bought by an outside bidder for a period of two years as to all prop •erty not homestead and for ten years as to homestead property.”

It is not charged that within the classification made, there is any distinction made between homestead and non homestead owners. It is quite true that Section's 6 and 11 make liberal concessions to homestead and other, real estate owners but both the classification and the concessions have been made in every tax sale statute of which we are aware and we have examined many. As to homesteaders, the concessions are more liberal and are guaranteed by the Constitution. They have been approved by this Court as we shall presently show. The low fate of interest, and in fact, every other element of Sections 6 and 11, treated questions of legislative policy with which we are not concerned.

The primary question with which we are concerned , is whether or not in authorizing the sale of ’ tax' certificates .held by the state which are more than two years old together with subsequent omitted and levied taxes, Chapter 18296 violates the due process and equal protection clause of the fourteenth amendment or Section 1 of Article IX of the State Constitution or both.

■ Appellants concede that the legislature may authorize the sale of tax certificates held by the State which are more than two years old on such terms as it may deem proper but they contend that it' is devoid of power to compromise, adjust, or remit “subsequent omitted and levied taxes” thereon on any terms not available to all taxpayers. They rely .on Richey v. Wells, 123 Fla. 284, 166 So. 817; City of Marianna v. Davis, 124 Fla. 145, 169 So. 50, and like cases to support this contention.

In Richey v. Wells, the case primarily relied on by Appellants, we were confronted with an assault on Chapter •17406, Acts, of: 1935, creating'delinquent tax adjustment boards, in each county of the State, a delinquent tax adjustment board of appeals in the State and authorizing them 'to .compromise and adjust tax sale certificates held by the State for the year 1933 or any previous year including “omitted subsequent taxes.”

A majority of the Court held the Act in violation of the equal protection clause of the fourteenth -'a'mendment in so far as it applied to “omitted subsequent táxés,” on the ground that the power to compromise and adjust was" vested solely in the sound discretion of the tax adjustment board, that no standard was set up for administering the Act and that it permitted compromise and adjustment of current of “omitted subsequent taxes” upon delinquent tax certificated lands on terms not available alike to all taxpayers. In othef respects, the validity of the Act was approved.

As against the contention of appellants, appellees con'-' tend that the cases at bar are ruled by Ridgeway v. Peacock, 100 Fla. 1297, 131 So. 140, wherein the Court was confronted with an assault on the constitutional validity of Chapter 14572, Acts of 1929, Section 42 of which provided 'for the sale of tax certificates held by the State to the highest bidder for cash. The Act applied to certificates issued upon sales for the non payment of taxes for the year 1927 or previous years, “together with all omitted subsequent taxes upon the land covered thereby.”

A certificate describing lands claimed by Ridgeway was sold under the Act and he attempted to restrain its delivery to the purchaser on the ground that the amount bid for it was much less than the face of the certificate including subsequent omitted taxes, that the purchaser had refused to sell it to him (Ridgeway) for less than the face of the certificate including subsequent omitted taxes and penalties and for various other reasons not essential to relate.

The court below denied the relief prayed for and upheld the sale against all attacks. On appeal to this court, the judgment below was affirmed and we further held that after the period of redemption had expired, the privilege to redeem may be modified by Statute if that privilege is not a part of the certificate holder’s contract right.

By its terms, Chapter 18286, Acts of 1937, it provides for 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, with “subsequent omitted or levied taxes.” The Statute in other words, does not attempt to deal with any tax certificates except those in which the period for redemption has passed and title vested in the State.

In Ridgeway v. Peacock, supra, we held that after the period of redemption expires, the State may dispose of tax certificates held by it on any adequate terms prescribed by law without violating the rights of owners of other taxpayers. Such was the effect of Ridgeway v. Reese, 100 Fla. 1304, 131 So. 136; State, ex rel. Dowling, v. Butts, 111 Fla. 630, 149 So. 746; Ranger Realty Co. v. Miller, 102 Fla. 378, 136 So. 546.

In every one of the cases last cited, the Court had under review statutes providing for the disposition of tax certificates in which the period of redemption had expired and title had vested in the State. It was shown in every one of them that the certificates had brought less than their face value including subsequent omitted taxes but the sale was approved and the Act upheld. We think these cases are in point with and rule the case at bar.

Some confusion has arisen with reference to the appli cation of the phrase “unpaid or omitted taxes” or as otherwise expressed “subsequent omitted or levied taxes.” Some apply it as if ambulatory following the certificate to date of redemption or purchase regardless of when that takes place. When used with reference to taxes that cannot be settled or compromised except on terms available to other taxpayers. We think it has reference only to current taxes that accrue during the two years allowed for redemption. “Subsequent omitted or levied taxes” have a new - status after the period of redemption expires and title vests in the State. Under Section 1027, Compiled General Laws of 1927, they are not extended on the tax roll and the legislature has repeatedly treated them as having a different status subject to be dealt with as it saw fit. See Sections 984, 997, and other sections of the Complied General Laws of 1927, and particularly Chapter 14572, Acts of 1929, Chapter 15053, Acts of 1931, Chapter 16252, Acts of 1933, and Chapter 17406, Acts of 1935. All of these Acts have been upheld.

As we interpret Richey v. Wells, it is not in point with the case at bar. It concerned the interpretation of Chapter 17406, Acts of 1935, creating delinquent tax adjustment boards in each county and authorizing them to compromise and adjust tax sale certificates held by the State for the year 1933 and previous years, including omitted subsequent taxes. The majority of the Court held the Act had, because of an unlawful delegation of power to the tax adjustment boards and because the right of redemption was limited to the owner and permitted him to redeem subsequent omitted taxes privately at a reduced rate which other taxpayers had been required to pay in full.

In practical operation, there was no difference in- the Act involved in Richey v. Wells and that involved, in.Ridg eway v. Peacock, except in the latter case, sale was made to the highest bidder for cash while in the former case it was made to the bona fide owner at such price as the adjustment board could get. A like difference existed in Ranger Realty Company v. Miller and in State, ex rel. Dowling, v. Butts; the difference was in the concession to the bona fide owner. Every one of these cases involved subsequent omitted taxes and the period of redemption having expired, they were treated in like manner as the face of the certificate and were permitted to be liquidated on such terms as they would bring.

While the foregoing is ample to dispose of the questions raised in this case, there is still another theory leading to the same conclusion on which it may be disposed of. Chapter 18296 is shown by its preamble and content to be nothing more than another step in what has been a consistent legislative policy beginning with Chapter 14572, Acts of 1929, to purge the tax rolls of delinquent property held by the State for non payment of taxes.

In addition to Chapter 14572, Acts of 1929, involved in Ridgeway v. Peacock, supra, the Legislature of 1931 enacted Chapter 15053, extending the period of redemption on homesteads to four years and Chater 15054 authorizing the county commissioners to accept bonds and coupons in the payment of taxes for 1929 and prior years, and Chapter 15055 allowing the redemption of delinquent taxes accruing prior to November 1, of any year without paying taxes for the current year as had previously been the law.

The Legislature of 1933 enacted Chapter 16252 requiring all delinquent tax certificates for 1931 and previous years to be held by the State until the first day of July, 1938, during which time they could be sold to no one but bona fide owner and he was permitted to redeem them in bonds which were at the time of greatly depreciated and speculative value. This was the most liberal inducement yet offered to delinquent taxpayers. The Legislature of 1935 enacted Chapter 17406 creating delinquent tax adjustment boards in each county with power to compromise and adjust delinquent taxes, This was the Act involved ,in Richey v. Wells heretofore discussed.

The facts leading up to this policy were that during the boom years of 1925 and 1926 the Florida real estate tax roll mounted to over $600,000,000. In 1929, when Chapter 14572 was enacted, the tax roll had decreased materially and more than $87,000,000 of it had been certified to the State for non payment of taxes. Confronted with this situation, the Legislature began its policy of making inducements to redeem, sometimes to the bona fide owner and at other times to the highest and best bidder for cash but in either event, as heretofore pointed out, the Acts have been before this Court and have been upheld.

In 1937, when Chapter 18962- was enacted, the tax roll then in hand showed a total real estate assessment of $408,573,992, $97,363,816 of which was certified to the State for non payment of taxes. Appellants contend that the certified land was in chips and whetstones that had not been redeemed under the previous Acts offering redemption concessions and that the 1937 Act was designed primarily to make liberal inducement to the former owners to redeem their lands but if not redeemed by them, to give others a chance on the same terms and thereby restore them to the tax rolls.

An analysis of the rolls 'from 1926 to 1929 and from 1929 to 1937, cannot be said to conclusively support this contention but whether true, or to what extent it may be true, it was a matter purely of legislative policy which we 'have approved. In State, ex rel. Dowling, v. Butts, supra, we held that it was within the power of the Legislature to make reasonable and appropriate concessions to redeem forfeited lands, thereby restoring them to the tax rolls and recovering such value as the certificates would bring. Wé further held in the last cited case that such Acts were not forbidden by the constitutional provisions requiring a uniform and equal rate of ad valorem taxation upon just 'valuations of all property on principles established for state taxation.

The features in Chapter 18296, that were not embraced in the other Acts that we have discussed were the low rate of interest allowed for redemption if the certificate was purchased by a stranger, absolute vestiture of title in the state at the end of two years, and the concession extended to homesteaders.

These are all matters of legislative policy with which we are not concerned. ' The right to redeem at any time is nothing more than a gratuity which may be granted or withheld but if granted, may be restricted in the discretion of the Legislature. As to subsequent omitted taxes, their status and disposition, there was positively no material difference in Chapter 18296, and the chapters that were involved in Ridgeway v. Peacock and in some of the other cases herein alluded to.

The Legislature found as a fact that in the boom year of 1925, real estate values were catapulted to four or five times their former values, that the collapse of the boom was followed by an unprecedented depression which “froze” and depressed the value of real estate, that as a result of the depression, a large percentage of the real estate was certified to the state for non payment of taxes, that in 1937, the value of certified lands was $97,000,000 which was in most cases fictitious and the lands not worth the face of the certificates, that being certificated to the State they áre producing no revenue, the lack of which is embarrassing the counties and municipalities and being so it is to the interest of the state that the certificates be sold at such prices as they will bring and the lands restored to the tax rolls.

Whether or not the Legislature pursued a wise policy, we are not authorized to determine. Some of the briefs point out individual cases in which certificates have been or about to be purchased for a small per cent, of their actual value, but they do not challenge the Legislature’s finding that in the main they are fictitious and of speculative value. This court has recognized the depreciated value of unredeemed certificates and the power of the Legislature to make provision for the disposition of them in any way it sees fit. All the courts recognize the impossibility of framing a tax law totally devoid of inequalities.

The means provided may have been short sighted ■ and some other may have been much better. It may be that the Legislature did not accurately sense the number of tax dodgers that were within the pale of the Act. The facts show that something needed to'be done and the experiment attempted was within the ambit of legislative power. This is the test of judicial interpretation rather than what the judge would have supported if he had been a member of the Legislature. Questions of economic policy are solely for the Legislature to determine. The fact that the scheme provided is obnoxious to the Court does not galvanize it against assault.

Briefs of numerous counsel were submitted in some of which the questions were differently • stated. They attack the draftsmanship of the 'Act, its effect on other Acts, and the jurisdiction of the federal courts. We have not over-" looked any of them but think such of these questions as are properly raised are comprehended and answered in what we have said here. Our conclusion is that the Act is valid against all assaults made.

It follows that the judgment of the chancellor is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

Brown, Buford' and Chapman, J. J., concur. Ellis, C. J., dissents.