Stephens v. Futch

Shackleford, J. J. E. Futch instituted an action of ejectment against John K. Stephens and R. B. Roberts for the recovery of tire possession of lot one and the north half of lot two of block thirty-nine in Worthington, in section thirty-two, township six south, range nineteen east. The declaration is in the usual statutory form, to which the defendants filed a plea of not guilty. A jury was waived aid the case tried before the Circuit Judge upon an agreed statement of facts, which resulted in a finding and judgment in favor of the plaintiff. The judgment has been brought here by the defendants for review. We see no occasion to set out the -agreed statement of facts. It is sufficient to state that the plaintiff’s title is based upon a tax deed executed to- him on behalf of the State of Florida by W. T. Weeks, the Clerk of the Circuit Court in and for Bradford County, on the 22nd day of March, A. D. 1915. This tax deed embraces several different parcels of land, covered by different tax certificates, and includes the two parcels in question as having, been covered by Certificate No-. 169, assessed to John K. Stephens. All of such lands are stated therein to have been sold by the Tax -Collector of Bradford County on the first day of July, A. D. 1912, for unpaid taxes for the year 1911. Nine errors are assigned, but the plaintiff and the defendants agree that only two points aré presented for determination, which are stated in the briefs as follows: “One is whether or not the failure of. a Board of County Commissioners to select at a proper time, in each year, a newspaper in which to publish the delinquent tax list, as provided by Section .50 of Chapter 5596, Acts of 1907, Section 558 Compiled Laws, 1914, is a fatal defect and — 711 — such as will invalidate a tax deed issued on a certificate -for the sale of lands for unpaid taxes in that year. • “The other main question is, whether or not at a sale of land for unpaid taxes under, the provisions of said Section 50, Chapter 5596, Acts of 1907, aforesaid, there can be added to the tax upon the land the taxes due by the same person upon the personal property, assessed to him upon the same assessment roll and such land can be sold under said Section- 50, for the unpaid tax upon both the real and personal property; in other words, can you add the tax for personal property to- the land and sell the land for both the tax on real estate and personal property, under this section of the law ? These are the main issues to be reviewed or decided by this Court.” The agreed statement of facts upon which the cause was submitted for determination contains the following statement: “It is agreed that the minutes of the Board of County Commissioners of Bradford County, Florida, do not show that they selected any newspaper at any time during the year 1912, in which to publish a §ale of real estate in the year 1912, for the unpaid faxes of 19x1, as provided by Sec. 50, Chapter 5596, Acts of 1907. “It is agreed that the said Board of County Commissioners did, at their regular meeting in January, 19x1, pass the following order, to-wit: ‘The Bradford County Telegraph was designated the - County .official paper to continue for the full term: of two years, and the Clerk was instructed to notify the Secretary of State the action of said Board.’ . “That said order constitutes the only, action of said Board in selecting any newspaper until after the expiration of the year 1912, so far as shown by the minutes of ■ said-Board. The notice of tax sale in 191.2 was published in the Bradford County Telegraph.” — 712 — The statute regulating the selection of a newspaper in which the advertisement of the tax sale was to be published, then in force, was Section 50 of Chapter 5596 of the Laws of Florida, (Acts of 1907, p. 27,) Compiled Laws of 1914, Section 558, which reads as follows: “If the taxes upon any real estate shall not be paid before the first day of April of any year, the Tax Collector shall advertise and sell in the maimer following: He shall make out a statement of all such real estate, specifying the amount due on each parcel, together with the cost of advertising and expense of sale, in the same order in which the land was assessed, and such list shall be published once each week- for five consecutive weeks in some newspaper published in the county, if there be a newspaper, said newspaper to be selected by the Board of County Commissioners at their first regular meeting in February of each year, and the newspaper so selected shall have been continuously published in the county for a period of not less than one year prior to its selection; Provided, That should there be no such newspaper a newspaper published for a less period of time .may be selected, and if there be no such newspaper published in the county, then by posting in three public places in the county, one of which shall be at the court house, and the newspaper’s charge for advertising shall be fifteen cents per line for the five insertions, per single column, and the Tax Collector shall receive the same for posting at three public places, but in neither case shall there be any charge for the head notice; Provided, That this act shall not apply to lands sold for non-payment of taxes for the year 1906. The Comptroller is authorized to audit said publisher’s charges and draw his warrant for same out of any moneys in the Treasury not otherwise appropri — 713 — ated. The editor, publisher or owner shall have attached to his account an affidavit that he has not directly or indirectly paid or promised to pay any Tax Collector or any other person any consideration whatever, or any compensation of any description for having said tax notice published in his paper.” r We had occasion to discuss this statute in Townsend v. Brown, 69 Fla. 155, 67 South. Rep. 869, wherein we held: “The provision of the statute requiring a publication in a newspaper, ‘said newspaper to be selected * * * in February,’ is not mandatory as to the time of the selection, but the duty continues till properly performed.” We also held therein: A failure to comply strictly with those provisions of tax laws which are intended for the guidance of officers in the conduct of business devolved upon them, designated to' secure order, system and dispatch in proceedings, and by a disregard of which rights of parties interested cannot be injuriously affected, will not usually render the proceedings void; but where the requisites prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and a disregard of them1 might and generally would injuriously affect his rig'hts, they cannot be disregarded, and failure to comply with them will render the proceeding invalid. In this holding we followed our prior decisions in Starks v. Sawyer, 56 Fla. 596, 47 South. Rep. 513, and Clark-Ray-Johnson Co. v. Williford, 62 Fla. 453, 56 South. Rep. 938. Also see Hightower v. Hogan, 69 Fla. 86, 68 South. Rep. 669. In Parker v. Evening News Publishing Co., 54 Fla. 544, text 548, 45 South. Rep. 309, we held that under the provisions of Section 5 of Article VIII of the State Constitution, as amended, the powers and duties of County Commissioners are purely statutory, and cited in support of such holding — 714 — Board of Commissioners of Escambia County v. Board of Pilot Commissioners of Port of Pensacola, 52 Fla. 197, 42 South. Rep. 697, 120 Amer. St. Rep. 196. We also held in Parker v. Evening News Publishing Co., supra, that “The County Commissioners are not required to make a contract for the public printing but only to select the newspaper in which the delinquent tax list is to be published.” In Bowden v. Ricker, 70 Fla. 154, 69 South. Rep. 694, we held that “Under the provision of Section 5 of Article VIII of the constitution, that powers and duties of county commissioners ‘shall be prescribed by law,” the authority of such officials is only such as may be conferred by statutory regulations.” It necessarily follows from the reasoning- and holding in these cited cases that the county commissioners were not authorized or empowered to' select or designate ' “the count}' official paper,” as was attempted to1 be done in the instant case, but only to select the newspaper in which the delinquent tax list shall be published. In City of Orlando v. Equitable Building & Loan Association, 45 Fla. 507, 33 South. Rep. 986, we held: “The official publication of notice of tax sales in two newspapers, where the law requires it to be published officially in one only, renders the sales invalid.” • In the same case we also held: “Failure h> comply strictly with those provisions of tax laws which are intended for the guide of officers in the conduct of business devolved upon them', designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected, will not usually render the proceedings Void; but where the requisites prescribed are intended for the protection of the citizen' and to prevent a sacrifice of his property, and a disregard of them might and ' generally would injuriously affect his rights, they can not be’disfe — 715 — garded, and failure to' comply with them will render the proceedings invalid.” As is said in Black on Tax Titles (2nd Ed.) section 212 on page 267, “The statutes commonly-provide that the newspaper in which the delinquent list and tax sale notice are to be published shall be designated by the authorities of the county or city. This requirement is mandatory. Without a proper and sufficient designation of the paper selected for this purpose, made by the officers or board charged with this duty, there can be no lawful publication, and consequently no validity in any of the further proceedings.” _ See Eastman v. Linn. 26 Minn. 215, 2 N. W. Rep. 693; Powers’ Appeal, 29 Mich. 504; Wren v. Nemaha Co., 24 Kans. 301; Hall v. County of Ramsey, 30 Minn. 68, 14 N. W. Rep. 263; Russell v. St. Paul, M. & M. Ry. Co., 36 Minn. 366, 31 N. W. Rep. 692; Brown v. Corbin, 40 Minn. 508, 42 N. W. Rep. 481; Merriman v. Knight, 43 Minn. 493, 45 N. W. Rep. 1098; State v. Cronin, 75 Neb. 738, 106 N. W. Rep. 986; Cronin v. Cronin, 94 Neb. 353, 143 N. W. Rep. 214. Evidently the statutory provision as to the selection of a newspaper in which the delinquent tax list was to be published was “designed, in part at least,” as was said in Merriman v. Knight, supra, “for the benefit of the tax-payer by giving him notice in what paper he shall look to see whether proceedings have been commenced against his land'.” We are constrained to the conclusion that it clearly appears from the agreed statement of facts that there- was not a compliance with the statutory requirement by the county commissioners -as to- the selection of a newspaper for the publication of the delinquent tax list, therefore there can be no validity in any of the subsequent proceedings based upon such publication, and the tax deed must be'held to-convey no title. We have examined Continental Trust Co. v. Link, 79 Neb. — 716 — 29, 112 N. W. Rep. 352, cited to us by the defendant in error, but cannot follow the reasoning which leads to the conclusion announced therein. Having found that the tax deed conveyed no' title to the defendant in error by reason of the fatal defect in the proceedings which we 'have pointed out, there is no occasion to' determine the other point presented. Judgment reversed. Browne, C. J., and Taylor, Whitfield and Ellis, JJ-, concur.