Opinion
13663
July 11, 1933.
Before DENNIS, J., Florence, November, 1932. Affirmed.
Petition for mandamus by George T. Walker, as forfeited Land Commissioner for Florence County, against W. B. Harris, as tax collector of Florence County, to compel respondent to deliver to petitioner tax deeds for lands sold at tax sales. From an order granting writ of mandamus, respondent appeals.
The order of Judge Dennis follows:
This is a petition brought by George T. Walker, as forfeited land commissioner for Florence County, against W. B. Harris, as tax collector for Florence County, in which a writ of mandamus is sought to compel the respondent to deliver to the petitioner tax deeds for lands sold at various tax sales, and as to which the taxpayers have failed to exercise their right of redemption as provided by law.
The petitioner was appointed under an Act passed by the Legislature of 1930, and now codified as a part of Section 2167 of the Code of 1932. His duties as forfeited land commissioner under the terms of that statute are the same as those of the forfeited land commissions of the various counties of the State. The petitioner's appointment and qualification under that Act are not questioned in this proceeding except as to the matter of the giving of a bond, as hereinafter set forth.
The petition further sets forth that on sales day in July, 1931, the respondent, as tax collector for Florence County, made sales of various tracts and parcels of land in Florence County, and that many of the tracts and parcels so offered for sale were bid in by the respondent, there being no other bidders, but counsel for both parties agree that the bidding at this sale in such cases was done by the petitioner and not by the respondent, and the petition is taken as amended on that score, so as to show the actual fact. Similar sales were made on sales day in August, 1931, and the property similarly bid in by the petitioner. The redemption period having expired, the petition sets forth that it became the duty of the respondent to make deeds to the petitioner for the lands bid in by the latter, and that, although the petitioner has repeatedly called upon the respondent to make such deeds, and has tendered deeds to the latter for execution by him, the latter has refused to do so, and has declared his determination not to do so in the future.
The petition sets forth in further detail the respective duties of the petitioner and the respondent in the matter of such tax sales, but, as these are specified by law, and are not matters of dispute, no further reference is made to the same herein.
The respondent's reply, which is summarized in a memorandum left with me by respondent's counsel, raises seven specific issues, which I will take up in the order stated by counsel.
The first point made by the respondent is that the issuance of the writ is a matter within the discretion of the Court, and will not be granted "in aid of those who do not come into Court with clean hands." In support of this ground, the respondent offers an affidavit made by himself to the effect that one B.J. Morris told him that his (Morris') son had paid to the petitioner, as forfeited land commissioner, a certain sum of money as the taxes on a specified tract of land, and that the petitioner had promised to execute a deed on December 8, 1932, covering the lands in question. In the first place, it might be said that, if this affidavit is intended to charge a dereliction in office on the part of the petitioner, it is a most indirect and unsatisfactory method of doing so. The affidavit was not served on the petitioner or his attorney until the matter came up for hearing before me, and the petitioner's attorney tells me that the facts stated in the affidavit are categorically denied by the petitioner, but I do not regard this as having any bearing on the issues involved in the case.
If the petitioner is entitled to have the deeds in question made to him under the terms of legislation which is constitutional, the respondent cannot refuse to make such deeds because of any alleged dereliction on the part of the petitioner in the performance of his duties. If the petitioner received the tax money referred to in the affidavit in question, and made the promise set forth in said affidavit, the reasonable inference is that, upon the compliance by the respondent with his alleged duties in the premises, the petitioner would be in position to carry out his promise, and that he intends to do so. But, regardless of this, it is my opinion that the matter in question does not involve a defense upon which the respondent is entitled to rely in this case.
The second point made by the respondent is that there is no provision in the law governing the petitioner's appointment and office providing for the giving of any bond for the protection of the taxpayers, and in support of this ground an affidavit is offered showing that no bond has been given. It does seem anomalous that a public officer appointed to handle matters that involve the receipt of tax moneys due the State and county should not be under bond. However, there is no constitutional provision requiring the giving of such a bond, and, where the Legislature has acted within its constitutional powers, it is not for the Court to strike down the legislation because of an unwise omission or provision in it.
The third point made by the respondent is merely a contention that the allegations in the petition to the effect that the performance by the petitioner and the respondent of their respective duties in the premises is one of vital importance to both the State of South Carolina and the County of Florence should be disregarded, because the State of South Carolina is not a party to the action. This does not raise any legal issue. There is no motion to strike out such provisions of the petition, and such provisions do not in any event effect the conclusions herein stated. It is not suggested by the respondent that the State is either a necessary or a proper party to an action to require a sheriff or a tax collector to carry out his duty to make deeds for unredeemed lands sold at tax sales.
The fourth point made by the respondent is that the Act under which the petitioner is proceeding "is defective, incomplete, and lacking in powers of execution, in that no provision whatever is made for the compensation of the petitioner." This is not a matter of defense to the respondent, for the petitioner is not seeking in this cause to obtain compensation, or to obtain a construction of the governing statute as to the source from which he might expect compensation. He is seeking only an order requiring the respondent to perform the ministerial duties imposed upon him by law.
In the fifth point made by the respondent, it is contended that the law provides that lands sold for delinquent taxes shall be bid in by the auditor, for the sinking fund commission. In Florence County, this provision would apply requiring the auditor to bid in the lands for the petitioner as forfeited land commissioner. Counsel are agreed on this.
It is to be borne in mind that there is nothing in the record before me to show, or from which it can be inferred, that the auditor refused to perform his duty in the premises. The recognized practice, according to the statement of counsel before me, has been for the lands sold for delinquent taxes to be bid in for the proper authorities by someone other than the auditor; this practice being rested upon the acquiescence of the auditor. The duties of the auditor in bidding in lands at tax sales would of course be of a most routine character. He would have no function to perform except to call out a bid for the amount of the taxes for which the land was being sold in each case. There is no reason why this duty cannot be performed by the auditor, by some other person. The only point of importance is that the sale shall be lawfully conducted by the official designated for that purpose, and the lands conveyed in the manner and to the official specified by law. There is nothing in this point that affects the validity of the sale in the sense of impairing any right or interest of the owner of the land or of the public generally. The authorities are numerous in which it has been held that statutory provisions which are intended merely for the convenience of officers in the conduct of tax sales need not be strictly complied with. 37 Cyc., 1281.
After careful consideration of all of the facts, I am of opinion that deeds made by the respondent to the petitioner would vest in the latter under the circumstances of this case, a valid title to the real estate in question, without reference to the question whether the bids at the tax sales were called out by the auditor in person, or by the petitioner on his behalf.
As a sixth point the respondent's counsel suggests some question as to the jurisdiction of this Court to hear the matter, by reason of the fact that the respondent resides in Florence County. He states, however, that the respondent "is perfectly willing to submit himself to the jurisdiction of this Court, provided he can do so," and makes a voluntary appearance and contest on the merits of the case; his counsel joining a request to me to hear the matter. It is admitted that there is no Judge in the twelfth Circuit, which is an adjoining Circuit. However, the respondent's voluntary submission to the jurisdiction of the Court effectually disposes of this issue.
It is next contended that the petitioner is not entitled to a writ of mandamus because of the fact that he now holds, or is attempting to hold, two offices, contrary to Article 2, § 2, of the South Carolina Constitution. On this point respondent submits an affidavit showing that the petitioner is a member of the board of registration for Florence County, and as such receives compensation from both the State of South Carolina and the County of Florence. In the discussions before me it was taken as a fact that the petitioner was a member of the board of registration at the time of his appointment as forfeited land commissioner. This brings the case within the ruling made by our Supreme Court in State v. Buttz, 9 S.C. 156, in which it was held that, where a person holding one office of trust or profit is elected or appointed to another such office, and qualifies in the latter capacity, he thereby vacates the first office to which he was elected or appointed, and lawfully holds the second office as an officer de jure. In addition, it was subsequently held by our Supreme Court in the case of State v. Coleman, 54 S.C. 282, 32 S.E., 406, that, under the circumstances stated, the officer attempting to exercise the dual capacities of two offices is at least a de facto officer in respect to the office vacated under the rule declared in State v. Buttz, so long as he is performing the duties of the office.
In addition to the points thus made by the respondent, certain of the allegations in the respondent's reply, and one of the contentions orally made, amount to an attack upon the constitutionality of the statute under which the petitioner was elected, on the ground that this statute violates the provisions of Article 3, § 34, Subd. 9, of the Constitution, which prohibits the enactment of special laws in a case where a general law can be made applicable. Our Supreme Court has held a number of times that this constitutional inhibition does not apply to special provisions relating to particular counties, contained in general laws. State v. Meares, 148 S.C. 118, 145 S.E., 695; State ex rel. Sellers v. Huntley et al., 167 S.C. 476, 166 S.E., 637.
The law now in question, as previously indicated, is an exception in the general law of the State relating to the handling of lands sold at delinquent tax sales, and bid in for the account of the State and county, and as such is codified in Section 2167 of the Code of 1932.
For the reasons above set forth, the return or reply of the respondent is deemed insufficient, and it is my opinion that in cases coming within the purview of the statute relied upon by the petitioner, and as set forth in the petition, it is the duty of the respondent to execute deeds presented to him by the petitioner, and I so hold.
Accordingly, it is ordered, adjudged and decreed, that the respondent, W.B. Harris, as tax collector for Florence County, be, and he hereby is, ordered and directed to properly execute and deliver to the petitioner, upon the demand of the petitioner, all such deeds as are prepared by the petitioner and submitted to the respondent for execution, to vest title in the petitioner as forfeited land commissioner of Florence County, and in his successors in office, of all such lands as were sold at the tax sales held in July, 1931, and in August, 1931, as set forth in the petition where the owners of such lands or some one on their behalf have not prior to the signing and filing of this decree redeemed such property by payment to the respondent of the taxes, penalties, and costs of sale in each instance, as provided by law.
The petitioner may apply for such additional orders as may be requisite to given effect to this decree in respect to any particular transactions covered by the terms hereof, in the event of respondent's failure to promptly comply with the order herein made.
Mr. W. Marshall Bridges, for appellant, cites: As to bidding at tax sales: Sec. 2857, Code 1932; 57 S.C. 79; 35 S.E., 436; 67 S.C. 526; 75 S.C. 252. Officer attempting to act in dual capacity: 54 S.C. 282.
Messrs. Samuel Want and Melvin Hyman, for respondent, cite: As to act being retroactive: 55 S.C. 395; 33 S.E., 372; 87 S.C. 270; 69 S.E., 391; 240 U.S. 305; 60 L.Ed., 658; 36 S.Ct., 293; 91 S.C. 344; 74 S.E., 1010; 135 S.C. 190; 133 S.E., 709; 82 S.C. 506; 64 S.E., 407; 102 S.C. 494; 131 S.C. 1. Bond not necessary where legislative intent otherwise: 167 S.E., 392; 103 S.C. 10; 87 S.E., 421; 92 S.C. 455; 75 S.E., 881; 74 S.C. 207; 54 S.E., 363; 73 S.C. 71. Legislature may enact special provisions in general laws: 148 S.C. 118; 145 S.E., 695; 166 S.E., 637; 153 S.C. 106; 149 S.E., 760; 61 S.C. 205; 137 S.C. 288; 135 S.E., 153; 67 S.C. 526; 37 Cyc., 1281.
July 11, 1933. The opinion of the Court was delivered by
We find no error of law in the order of his Honor, Circuit Judge Dennis, appealed from in this cause, which will be reported, and the same is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.