State of Florida ex rel. R. L. Kennerly, v. Ernest Amos, Comptroller of the State of Florida, Respondent, 78 Fla. 552

Whitfield, J. —The Circuit Court issued an alternative writ of mandamus wherein it is, in effect, alleged that E. L.

Kennerly, on August 7, 1916, purchased from the Tax Collector of Putnam County, at public auction, for $471.45, certain lands described in a stated tax sale certificate No. 522, said sum being the amount due and unpaid for taxes, costs and charges on said lands for the year 1915; that the said certificate was issued to and is held by Kennerly; that on November 17, 1917, Kennerly “presented said certificate to the Clerk of the Circuit Court of Putnam County, Florida, and proved to the said Clerk that the said sale was void; that the description of said lands in said assessment was void; that said lands at the time of said assessment were not assessed to the owner thereof, but that same were assessed to a company that never owned said lands; that said lands were not returned for taxation; that the description of said lands in said assessment was illegal; null and void because said lands could not be located by said description; that the said E.

L. Kennerly presented” other stated proofs; “that by said proofs the said E. L. Kennerly proved to the satisfaction of said Clerk that the said assessment and certificate were illegal, null and void on account of the irregularities in said assessment and failure of the assessor to comply with the law in making such assessment; that upon due consideration of said proofs and the records in his office, the said Clerk did consider and determine that said assessment and certificate were illegal, null and void, and thereupon the said Clerk, in pursuance of

Chapter 6816, Laws of Florida, did on the 17th day of November, 1917, make and execute under his hand and official seal a certificate and did on said date mail said certificate, affidavits and certified copy of assessment, and also the said tax sale certificate No* 522 to the said. Ernest Amos, Comptroller of the State of Florida; and that the said Clerk did also at the same time enter upon the list of the land sold for taxes kept in his office, a memorandum of such fact, as provided by Capter 6816, Laws of Florida, and the said Ernest Amos,.

Comptroller of the State of Florida, received the same within the next day or two thereafter; and on the 20th day of November, 1917,, acknowledged receipt thereof; that on the 20th day of November, 1917, the said Ernest Amos, as Comptroller of the State of Florida, returned said affidavits, certified copy of the assessment and said' certificates to the said Clerk, R. J. Hancock, and the said Ernest Amos, as Comptroller of the State of Florida, did then and there refuse to .authorize the cancellation of said tax sale certificate and refused to refund or authorize the refunding to the said R. L.

Kennerly the moneys to which he was entitled under

Chapter 6816, Laws of Florida.” The command of the writ addressed to Ernest Amos, as Comptroller, is that he as Comptroller of the State of Florida do “forthwith notify the said R. L. Kennerly that upon his voluntary surrender to you of said tax sale certificate No. 522, that'you will refund to him the amount received by tlie State by purchase of said certificate, and that upon the surrender of the said certificate you will refund to the said R. L.

Kennedy the amount received by the State of Florida by the purchase of said certificate, and that you draw your warrant on the State Treasurer for such sum or sums as may have been shown to you by the said R. L. Kennerly to be due on such account, to be paid out of the General Revenue Fund, or that you show cause why you have not done so,” etc. The respondent, Comptroller, moved to quash the alternative writ on the grounds: “1st.

That the allegations in said alternative writ do not state or constitute a.cause of action that authorizes or entitled relator to the remedy sought and mentioned in said alternative writ, or to the relief prayed for therein. “2nd. The allegations in said alternative writ are not sufficient to authorize or entitle the relator to mandamus against this respondent as mentioned or prayed for in said alternative writ. “3rd.

That the allegations in said alternative writ do not contain facts to show that the respondent is under legal duty or obligation to perform the things mentioned in said writ and which is sought and prayed therein to have the respondent commanded or compelled to do by mandamus. “4th. That the alleged duties of the respondent in the premises alleged in said alternative writ are not such as the court will enforce by mandamus in the premises as prayed, demanded or required in said writ. “5th.

That the allegations of said alternative writ do not sufficiently state or show such a breach of legal duty or obligation on the part of respondent, or such failure to perform the legal duties or obligations on his part, as to authorize or require mandamus or entitle relator to mandamus as therein mentioned or prayed. “6th.

That it appears upon the face of said alternative writ, and the statutes and exhibits referred to therein, and made a part thereof, that said respondent is not under or legally bound to perform the alleged obligations and duties alleged in said alternative writ which it is sought therein to have the respondent compelled to do. and perform. “7th. That this respondent has performed the duties required of him under the provisions of

Chapter 6416 of the Laws of Florida, in so far as it is required of him in the premises as alleged in said alternative Writ of mandamus.” The relator took writ of error from a dismissal of the writ.

Chapter 6816, Acts of 1915, is as follows: “CHAPTER 6816 — (No. 10). “AN ACT to Amend

Section 581 of the General Statutes of the State of Florida, Entitled ‘Procedure Where. Land Sold for Taxes, the Taxes Having Been Paid, or Land Not Subject to Taxation.’ “Be It Enacted by the Legislature of the State of Florida: “Section 1. That

Section 581 of the General Statutes of Florida be and the same is amended so as ot read as follows: “581. Proceedure where land sold for taxes, the taxes having been paid, or land not subject to taxation, or for any other cause.

Whenever, it shall be proved to the Clerk of the Circuit Court of any County in this State that lands in his county have been sold for unpaid taxes when the taxes on such lands have been paid, or the lands were not subject to taxation at the time of the assessment on which they were sold, (or because the description was void, or because of some error or omission which invalidates the sale, or for any other reason), he shall forward a certificate of such fact to the Comptroller, and enter upon the list of land sold for taxes, kept in his office, a memorandum of such fact. “The Comptroller upon receipt of such certificate, if satisfied of the correctness thereof, when the certificate of sale is held by the State, shall notify the Clerk, who shall cancel the same, and when the certificate is held by an individual, the Comptroller shall at once notify the original purchaser, or the holder, if known to Mm, that upon voluntary surrender of the certificate or deed of release of his rights under any tax deed that may have been issued to him upon such certificate, within ninety days of such notification, but not afterward, he will refund to the holder of such certificate, the amount received by the State by the purchase of said certificate and the sum of one dollar for such deed of release as may be necessary; and the County Commissioners shall refund from the General County Tax Fund the amount received by the County on such account, .and the Comptroller is hereby directed to draw his warrant on the State Treasurer for such sum or sums, as he may be shown to be due on such: account, to be paid out of the General Revenue Fund.

Provided : that this Act shall not be so construed as to apply to any tax certificate issued by a Tax Collector prior to January 1, 1913. “Sec. 2. That all laws or parts of laws in conflict with the provisionsi of this Act be and the same are hereby repealed. Approved June 5, 1915.” When not controlled by organic law, the payment of money from the State Treasury may be made only upon the conditions prescribed by statute.

The apparent purpose and effect of the above quoted statute is' to authorize the Comptroller upon proofs made ex parte before the proper Clerk of a Circuit Court, that satisfies the Comptroller that “lands have been sold for unj>aid taxes when the taxes on such lands have been paid, or the lands were not subject to taxation at the time of the assessment on which they were sold, or because the description was void, or because of some error or omission which invalidates the sale, or for any other purpose,” to draw a warrant on the State Treasurer for “the amount received by the State for the purchase of” the certificate of such sale if it is held by an individual.

The drawing of the warrant is not authorized wiless the Comptroller “is satisfied with the correctness” of the Clerk’s certificate as showing some fact “proved to” the clerk which invalidates the sale. In this case it appears that the Comptroller “refused to refund or authorize the refunding to the said R. L. Kennerly the moneys to which he was entitled under

Chapter 6816, Laws of Florida.” And it in effect appears from the letters of the Comptroller attached as exhibits to the alternative writ, that he was not “satisfied of the correctness” of the Clerk’s certificate in showing facts which invalidate the sale or render the tax sale certificate void. The amendment to

Section 581 included in brackets in the Act of 1915 above quoted apparently involves judicial matters that might not legally be -conferred upon an administrative officer. Mandamus will not be used to control a discretion vested in the Comptroller under the circumstances of this case even if the Act of 1915 is invalid. See 223 U. S. 683; 190 U. S. 316; 244 U. S. 174; United States ex rel v. Lane, U. S. , 40 Sup. Ct. Rep. 23, November 10, 1919; 3 Fla. 202; 25 Fla. 298; 61 Fla. 233. Affirmed. Ellis and West, J. J., concur. Taylor, J., concurs in affirmance. Browne, C. J., dissents.