State ex rel. Sunday v. Richards , 50 Fla. 284 ( 1905 )

Whitfield, J.

The plaintiff in error as relator filed in the Circuit Court for Escambia county a petition praying for an alternative writ of mandamus in which it is alleged that John Sunday of Escambia county, Florida, was on January 1st, 1905, and for a long time prior to and ever since that date was, has been, and is now the owner of several certain and described pieces of real estate situated in the city of Pensacola, Escambia county, Florida; that W. W. Richards is the Tax Assessor of said county; that on the 5th day of January, 1905, relator presented his return of said property to said tax assessor and requested him to assess the same on the assessment roll for said Escambia county for the year 1905, in the name of relator, but said W. W. Richards, unmindful and regardless of his duty in the premises as such tax assessor as prescribed by law, failed and refused and still refuses to receive said return of said property for assessment and to assess the same in the name of relator as the owner thereof for the year 1905, and alleges and claims that his reason for failing and refusing so to do is that said lands have been certified or sold to the State of Florida for the taxes of previous years (the date of each such sale or certification, the number of the certificate, and the description of the several pieces of property being given), and that said lands were not included in any list furnished by the Comptroller to said assessor as provided by law; and that in conformity with the law and under special instruction from the Comptroller of the State of Florida, he cannot enter said property on the said assessment roll. The petition then alleges that the said lands were certified or sold to the State of Florida as alleged and claimed by the said W. W. Richards as aforesaid, but that each and all of said sales and certifications of said lands were and are illegal and void for reasons set out in the petition. It is further alleged that the several parcels of lands have been, each year since the said respective sales or certifications thereof, assessed or attempted to be assessed, by the tax assessor of said Escambia county upon the assessment roll of said Escambia county, until the year 1902, and the taxes which were assessed against the same paid or the property sold by the tax collector to satisfy the same; that not until the year 1902, or after, did the tax assessor of said Escambia county fail or refuse to assess any’of said lands upon the assessment rolls of said Escambia county, because of such sales or certifications, or because of any requirement of law or special instruction from the Comptroller of the State of Florida; that it is the duty of said W. W. Richards as such tax assessor to assess said lands as stated; that realtor is without remedy in the premises except by mandamus. A writ of mandamus is prayed against the said W. W. Richards as tax assessor as aforesaid, commanding him to assess the said lands on the assesment roll for said Escambia county for the year-A. D. 1905, and assess the said property upon said assessment roll in the name of relator as the owner thereof.

An alternative writ of mandamus issued, to which a copy of the petition was attached as a part thereof. The respondent moved to quash the alternative writ on the following grounds: 1. That the relator has not in and by his petition made or stated such a cause as doth or ought to entitle him to the relief prayed for.

2. That the petition shows no right in relator to the relief prayed for.

3. That the petition shows no legal duty upon the respondent to do the acts which the petition and writ seek to compel him to perform.

4. That the petition seeks to compel the performance of acts specifically forbidden by statute.

5. That the relator has other complete and adequate remedies.

6. That it appears from the petition that the relator has been guilty of inexcusable laches.

7. That it appears from the petition that the relief sought is inequitable.

8. That these proceedings substantially and in effect constitute an action against the State of Florida.

9. That the relator had a complete and adequate remedy which has been lost by laches.

The motion was granted and the alternative writ was quashed and a writ of error was taken to the present term of this court. The following errors are assigned: (1). The court erred in granting the motion of respondent to quash the alternative writ of mandamus; . (2) in granting the order quashing the alternative writ of mandamus; (3) in rendering judgment in favor of respondent.

A writ of mandamus may in the exercise of a sound judicial discretion of the court be issued to enforce the performance of a legal duty imposed by law upon a ministerial officer where such duty does not involve the exercise of discretion of judgment by the officer and the relater has a clear legal right to have such duty performed, and there is no other adequate remedy provided by law. Towle v. State, ex rel. Fisher, Sheriff, 3 Fla. 202; State v. Crawford, 28 Fla. 441, 10 South. Rep. 118.

The petition alleges that the tax assessor refuses to assess the lands because said lands have been certified or sold to the State of Florida for the taxes of previous years, and that said lands were not included in any list furnished by the Comptroller to said assessor as provided by law. This refusal is based on a provision of the revenue law that “The asessor shall not assess any lot or parcel of land certified or sold to the State for any previous year, unless such lot or parcel of land so certified or sold shall be included in the list furnished by the Comptroller to the assessor as now provided by law.” ' The revenue law provides for the redemption within a given period of tax certificates certified or sold to the State for non-payment of taxes on the land, by persons interested in the land covered by the certificates, and provides also that at ■ the expiration of the period of redemption the title to the land so sold or certified shall be held to be in the State, and the certificate shall be evidence of the title of the State. The law also provides for the sale of tax certificates held by the State, and after the expiration of the period of redemption, for the issue of deeds based on such certificates which convey the title to the lands. The law refei’red to in the above quotation provides that the Comptroller shall annually certify lands sold or patented by the United States “together with the various .classes of State lands sold during the same year, to the assessors of the counties in which such lands may be situated.” The “classes of State lands” referred to include lands the title to which had matured in the State by tax sale and which had been sold during the year.

If the lands had been sold or certified to the State for the taxes of previous years and they were not included in lists furnished by the Comptroller to the tax assessor as provided by law, the statute forbids him to place them on the tax roll. But it is alleged “that each and all of said sales and certifications of said lands were and are illegal and void” for reasons set out in the petition. The real purpose, then, for which mandamus is asked is to have the previous sales and certifications of the lands to the State for the non-payment of taxes due thereon declared illegal and void.

If the certificates are held by the State it has an interest in the question of their validity or invalidity, and the State is not a party to this suit.

This court in the case of State ex rel. Dixon v. Trustees I. I. Fund, 20 Fla. 402, has approved the doctrine that the fact that there are other claimants to land who are mot parties to the proceeding furnishes sufficient ground ■for refusing a mandamus to compel the performance of an ¡act affecting the title to the land. The averment that the «claims are void will not relieve the difficulty; for the court will not undertake to adjudicate claims, whether valid or not, when the claimants are not parties to the suit.

A writ of mandamus will not be awarded when there is other adequate legal remedy provided by law by action or otherwise. High on Ex. Legal Remedies, (3rd ed.) Sec. 15. The fact that the certificates involved here are held by the State does not deprive the relator of an adequate remedy. The statutes of this State, Section 894 of the Revised Statutes of 1892 and Section 12 of Chapter 4888 Acts of 1901, provide an easy and just method for securing the cancellation of illegal tax certificates held by the State. The latter section is as follows:

“Whenever it shall appear to the Comptroller that the taxes on any land heretofore sold, or that may hereafter be sold, to the State for taxes, were not due at the time of such sale upon the lands or any part thereof embraced in any certificate of sale, or that the sale was otherwise illegal or improper, he shall have power to cause to be cancelled, in whole or in part, or cause to be surrendered such certificate in such manner and upon such terms as may in his judgment be best to protect the interest of the State and do justice to the owners, and the clerk shall make such cancellation or surrender on the order of the Comptroller.”

In the case of State ex rel. Hampton v. McClung, 47 Fla. 224, 37 South Rep. 51, the court was equally divided on the question as to whether or not before mandamus will lie in a proper case to reinstate a pupil who has been wrongfully expelled from a public school resort must first be had to the county school authorities for relief. In that case the statute did not provide specifically for a remedy át the hands of the county school authorities, but such authorities had general supervision only of the matter, and for that reason the writer hereof was of the opinion that no specific and adequate remedy was provided by law and that consequently mandamus was not on that account excluded. In this case the statute furnishes a specific and adequate remedy for the cancellation of tax certificates held by the State where the sales were.illegal or improper. See Marshall v. Sloan, 35 Iowa, 445.

A relator cannot be said to have a clear legal right to the performance of an official act by an officer when the refusal of the officer to perform the official act is the result of the omission of the relator to do something required of him by law, at least in the absence of a sufficient excuse therefor on the part of the relator. The law imposes upon the owner of lands the duty of paying the taxes due thereon, and when a tax assessor refuses to assess lands because they have been sold to the State for the omission to pay the taxes, the party who so omits to do his duty cannot by mandamus compel the tax assessor to assess the lands to him until such omission has been remedigd in some legal way. The tax certificates held by the State charge the relator with notice that the taxes have not been paid on the lands for certain years, and relator seeks by mandamus to have those certificates declared void by mandamus. See People ex rel. Wood v. Board of Assessors of Brooklyn, 137 N. Y. 201, 33 N. E. Rep. 145; People ex rel. Durant Land Imp. Co. v. Jeroloman, 139 N. Y. 14, 34 N. E. Rep. 726; 19 Am. & Eng. Ency. Law (2nd ed.) 753.

In mandamus proceedings the alternative writ takes the place of a declaration at law, and it is essential that it should show a clear prima fade case in favor of the relator. State ex rel. Fowler v. Finley, 30 Fla. 302, text 310, 11 South. Rep. 500. In the case of Puckett v. State ex rel. Johnson, 33 Fla. 385, 14 South. Rep. 834, this court says: “The alternative writ in mandamus proceedings must show a clear prima fade case in favor, of relator. In order to make out a prima fade case the writ should allege all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him as well as the facts that entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation.” In this case only a few of the allegations of the petition are included in the alternative writ, but a copy of the petition is attached to and made a part of the alternative writ. Attention is called to this as not being proper practice.

The judgment is affirmed.

Shackleford, C. J., and Cockrell, J.. concur. Taylor and Hocker, JJ., concur specially. Parkhill, J., disqualified.