State ex rel. Register of Lands v. Secretary of State

Bates, Judge, delivered the opinion of the court. The General Assembly, by an act on the 15th day of March, 1861, by the first section thereof, required the register of lands, on the first Monday of July, 1862, to advertise for sale, in some newspaper printed at the seat of government, all the lands and town lots returned to his office as forfeited to the State, or unsold, upon which the taxes and costs for the years from 1841 to 1859, inclusive, or for any one or more of said years, remain due and unpaid at the date of the advertise — 294 — ment. The second, third, fourth, fifth and sixth sections prescribed details as to advertising and selling the lands. The seventh section is as follows: “ The collector and the printer shall receive the same compensation and be paid in the same manner as like services are required to be paid by the laws existing at the time of the rendition of service, and the register of lands shall be paid fifteen cents for each tract of land or town lot certified out for sale under this act; all of which fees shall be, by the register, added as costs to the amount of State taxes, opposite each tract or lot. The register’s fees shall be paid out of the State treasury, upon the production to the auditor of public accounts of. the certificate of the secretary of State that such service has been performed.” The register of lands, in July, 1862, presented to the secretary of State an account, in which was stated the number of tracts of land and town lots certified out for sale, as alleged by him, and requested the certificate of the secretary of State that such service had been performed. The secretary of State refused to give the certificate, and the register applied to this court for a mandamus upon the secretary to compel him to grant the certificate, and a rule was made upon the secretary, Oliver, (which the parties agree is to be regarded as an alternative mandamus,) requiring him to show cause, in this court, at the January term, 1863, why he does not certify the said account, and that the service for which said account is made has been performed. Oliver shewed cause as follows: 1. There is no law requiring him to certify the account. 2. He could not certify that the services had been performed until evidence thereof satisfactory to him had been furnished, and that it was not pretended that such evidence had been produced. 3. An argument upon the act, to show that it does not require him to give a certificate of the services performed. 4. Even if the law requires him to certify that the services had been performed, he could not do so until evidence had — 295 — been produced to him to satisfy his mind that the certificate was true, which had not been done. 5. A repetition of the allegation that evidence was not produced to him. 6. A statement that the account was erroneous in this, “ that the complainant charged, in said account, fifteen cents, in a great many cases, for each division and subdivision of an entire and contiguous tract of land belonging to, and assessed to the same person, thereby, in some cases, charging thirty, and in others forty-five, and even sixty cents, for one tract of land assessed to the same person, when, by the law, he was only entitled to charge the sum of fifteen cents therefor.” 7. A repetition of the allegation that sufficient evidence was not produced to him that the services had been performed, with an inuendo that it was requisite to give him evidence that the work was correctly performed. 8. A statement that he was and is willing to examine the work, and see if it has been performed, as soon and as fastas' the other duties of his office would permit; and if, upon such examination he found that the work had been done, he was willing to make out such certificate as the law directs, but that the complainant insisted that the certificate should be made at once, without such examination, which was refused by him. 9. A statement that the complainant has not had the said delinquent tax list from the year 1844 to 1859 advertised as the law in such cases directs; and a statement that no evidence was furnished him but the statement of the complainant, and a printed list on a strip of paper. To this return the complainant, Orr, answered— 1. That the law does require the secretary of State to certify that the services were performed. 2. That the complainant did offer to show the defendant, by sufficient testimony, that he had performed the work, which defendant refused to hear. 3. A denial of the soundness of defendant’s argument given as the third cause stated in his return. — 296 — 4. A denial that sufficient evidence had not been given to defendant, with a statement of the character of evidence given and tendered to him. 6. Allegations that he offered to prove by his clerks that the services had been performed, and that he tendered to defendant the privilege of examining the records in his office as much as defendant wished. 6. A denial that he, in any instance, charged more than fifteen cents for any one tract of land certified out by him. 7. An allegation that the defendant refused to hear testimony offered. 8. A denial that he, complainant, insisted that the certificate should be made at once, without examination ; and an averment that the defendant refused to hear testimony offered, or to state when he would hear it', or when he would make the certificate. 9. A statement that complainant did have the said delinquent tax list from 1844 to 1859 advertised according to law, and did deliver to defendant a complete printed copy of the same, shewing each tract of land in the State thus advertised, &a.; and that defendant did not deny that it was a true copy, or had been printed, and has not specified in his return in what respect the advertisement was not properly made. The defendant moved the court to strike out this answer, which motion was regarded as a demurrer, and upon the argument upon it the whole subject was discussed by counsel, and the consent of the parties expressed that the whole matter should be considered and disposed of by the court. The first question presented by the pleadings, and which lies at the foundation of the whole matter, is, what is the duty of the secretary of State in the premises ? The only words of the statute which defines his duty are these: “ The register’s fees shall be paid out of the State treasury upon the production to the auditor of public accounts of the certificate of the secretary of State that such service has been performed.” These words occur in a section which provides — 297 — first for the compensation of the collectors and printer for their portions of the work required by the act, and then provides that the register shall be paid fifteen cents for each tract of land or town lot certified out for sale under this act, which fees are to be added to the taxes on each tract of land. In order to define with any precision 'what duty is incumbent upon the secretary of State, it is necessary to regard the whole act and its general purpose. A large number of tracts of land had become forfeited to the State for taxes for many years, the accounts and records of which pertained to the office of the register of lands. The General Assembly directed these lands to be sold in the counties in which they lie, and directed what duties should be done by the register in reference to such sales; and finally, in the last section of the act, directed how the collector, printer and register should be paid for their services, and in this section only, .and in this connection only, is any mention made of the secretary of State. It appears, therefore, that the only duty required of him has reference only to the compensation of the register. He is not required to direct, or superintend, or correct the work required of tine register. If such duties had been required of him, they would, without doubt, have been declared specifically, and have been required of him contemporaneously with the performance of the work by the register, whereas his only duty is to certify that the services have been performed, and this can only be done after their performance. Any discretion to be exercised in the performance of the duties devolved upon the register is to be exercised by him alone, and the secretary of State has only to certify the amount of work done, so as to verify the register’s account that it may be audited by the auditor of public accounts; and, as the amount of the register’s compensation depended entirely upon the number of tracts of land and town lots certified out for sale by him, the simple duty of the secretary of State was to ascertain the number of tracts of land so certified out by the register of lands, and grant to him a certificate of the number. — 298 — The register of lands is a pxrblic officer, authorized by the .constitution, whose office is kept at the seat of government, where is also that of the secretary of State, who could have had access to the register’s office to examine such records as might be necessary to enable him to ascertain the number of tracts of land certified out by the register. The similar act of February 27, 1843, was different in its language, in describing what should be certified by the secretary of State, and expressed directly what this act intends by more general terms. That act was as follows : “ The register of lands shall be entitled to fees for his services as follows: for every tract of land or town lot which he shall certify out for sale in the year 1843, thirty-five cents; for every tract of land or town lot certified out after the year 1843, twelve cents. “ The fee herein allowed to the register of lands shall be paid by the State, but before the register shall be allowed any fees, he shall produce to the auditor of public accounts a certificate of the secretary of State, certifying the number of tracts of land and town lots certified out by the register under the provisions of this act.” (Laws 1842-3, p. 142, § 32 & 33.) Considering that the only object to be attained by the certificate of the secretary of State was the verification of the account of the register for the services rendered by him, it would seem that there could be no doubt that the secretary’s duty was the same as that required of him for a similar object by the law of 1843. With this view of the secretary’s duty, it is apparent that none of the various matters of law, fact and argument set out in his return to the rule made against him show any legal cause why he should not grant the certificate of the services rendered by the register. If the register has done any part of the work incorrectly, he may be responsible to the State for losses occasioned thereby; but that is no reason why the secretary should withhold his certificate of the amount of service rendered, concerning which only he was to certify, — 299 — and not concerning its correctness. His allegation that he was willing to examine the work, and if he found it performed, to certify the fact, is disproved by the fact, that, although nearly six months has elapsed, he has not done so. Peremptory mandamus will issue. Judge Dryden concurs.