BIENNIAL REPORT OF THE ATTORNEY GENERAL redeemed by jolinmilioncherie

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									           BIENNIAL REPORT OF THE ATTORNEY GENERAL                       109

     redeemed the tax obligation will continue as to the interests
     not so redeemed. Should a tax sale certificate be issued after
     such redemption the certificate should be issued as incumbering
     the remaining undivided interests; if issued before redemption
     a notation should be made on the tax sale certificate evidencing
     such redemption.
          2. Under normal circumstances where a parcel of real
     property is owned and held by two or more persons as tenants
                                                                                       ':1
     in common, such property should be assessed as a unit naming
     all such tenants as owners; however, the tax assessor, where
     circumstances may demand, may assess such undivided in-                           ',iii
                                                                                      fi
     terests or any of them separately.                                               Ii
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     The cases referred to deal with situations where large blocks or                 Ii
sections of real property have been sold for nonpayment of taxes and                  i
                                                                                      d
where the party with the right to redeem is seeking to redeem only a                  ,I
part of the total parcel covered by the redemption certificate. These
cases held that the redemption is allowable where the parcel of real
property is capable of being subdivided by some usual and legal method                iI'
of subdivision. The Green Cove Farms case points out that it was                      I
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dealing with the subject of a redemption of a part of a parcel of real                I


property. This redemption sought was on an area basis. In this respect
see §194.06, F. S. Also see §194.05, F. S., if state-owned certificates of
1917 and prior years are involved.
     However, §194.13, F. S., provides for redemption of a portion of
land or interest therein contained in a tax sales certificate or certificates
held by the state or by any person other than the state on the basis
of value, as opposed to the basis of area.
     Thus these sections of the Florida Statutes seem to encompass two
different types of redemptions. One is that where the redemption is
sought on the basis of area and the other is that where the redemption
is sought on the basis of value. This information appears to answer
the question which you have posed.
067-63-September 11, 1967
              JURORS AND WITNESSES
CONSTRUCTION OF §§40.24 AND 90.14, F. S., INSOFAR AS THEY
   RELATE TO MILEAGE FOR JURORS AND WITNESSES
                  ,
To:    Arthur L. Steed, State Attorney, Orlando
QUESTIONS:
       1. Are jurors, summoned under §40.24, F. S., entitled to
   mileage from their homes to the place where the jury meets
   and return to their homes for each day they are in attendance
  when sitting for more than 1 day?
       2. Are witnesses, summoned under §90.14, F. S., entitled
  to mileage from their homes to the place where they give
  testimony and return to their homes for each day they are
  in attendance when they are required to be in attendance for
  more than 1 day?
    Section 40.24, F. S., after providing for the per diem compensation
of jurors for most courts, contains the provision that:
      . . . In addition to the compensation above provided [per diem],
      all jurors shall receive five cents per mile for every mile

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        110 , BIENNIAL REPORT OF THE ATTORNEY GENERAL

             necessarily traveled in going to and returning from court by
             the nearest practicable route. . . .
            This language was derived from §1, Ch. 28247, Laws of Florida,
        1953. Identical language was used in §1, Ch. 26868, Laws of Florida,
        1951; in §40.24, F. S., of the revision made by the attorney general
        under and pursuant to Ch. 19140, Laws of Florida, 1939, which was
        adopted as the F. S., 1941; in §2788, R.G.S., 1920, which language
        appears to have been derived from Ch. 6219, 1911; in §1, Ch. 5900,
        1909; §1, Ch. 5647, 1907; §1, Ch. 4385, 1895; §1, Ch. 3853, 1889, provid-
        ing a mileage of "ten cents a mile for going and returning by the
        nearest practicable route." There is no real or legal distinction between
        any of the above-mentioned statutory provisions. There has been no
        material change in the language of the above-quoted portion of §40.24,
        F. S., since said Ch. 3853, 1889, and Ch. 4385, 1895.
            In AGO 058-149, of April 28, 1958 (1957-1958 AGO p. 670) At-
        torney General Richard W. Ervin stated that:
                Prior attorney general opinions of my predecessors in office,
            holding that what is now §40.24, F. S., contemplates mileage
            to be paid to petit jurors for one complete round trip during
            jury service, have been construed by the comptroller as limiting
            the mileage payment to grand jurors to one round trip during
            each grand jury session. (Attorney General Fred Davis' Opinion
.   -       dated May 6, 1930 [1929-1930 AGO 308] and Attorney General
            Tom Watson's Opinion 046-513 [Dec. 16, 1946]).
              Attorney General Landis, in his opinion of Oct. 8, 1931 (1931-1932
         AGO p. 480), appears to have adopted the same rule, except when the
         jury is not discharged over the weekend, but is required to return for
         services for the following week, that the jurors are entitled to be
         compensated for 1 round trip for that week.
             It is provided in and by §90.14, F. S., as amended by Ch. 67-401',_
         Laws of Florida, that:
             . . . Witnesses in all cases, civil and criminal, in all courts,
             now or hereafter created, and witnesses summoned before any
             referee, arbitrator or master in chancery, shall receive for
             each day's actual attendance five dollars and also six cents
             per mile for actual distance traveled to and from the courts.
             The courts have usually held the distance traveled under the
        mentioned circumstances to be the most direct and practicable route
        between the witness's home and the place where testimony is to be
        given. The witness fee prior to the 1967 amendment was $3 per day
        and 5¢ per mile.
             The statement was made in AGO 046-513, of Dec. 16, 1946, that it
        was the standing practice in this state to construe said §90.14, F. S.,
        as permitting mileage to and return from court, or other place where
        testimony is taken, for only 1 round trip and not to allow such mileage
        for each day when the witness returns home each day and returns to
        court the next day. This was the construction followed by the attorney
        general in the said opinion of Dec. 16, 1946. This opinion was followed
        in AGO 061-93, of June 6, 1961. It appears from 97 C.J.S. 432-434, §13,
        t.hat this may be the general rule except in those cases where the
        statutes expressly provide otherwise. However, with the variation in
        most states that where there is a recess (other than an overnight
        recess) with the court reconvening on another day, mileage may be
        paid for 1 round trip for each week in which the court is in session,
         BIENNIAL REPORT OF THE ATTORNEY GENERAL                       111

but not for each successive day. In some cases the mileage appears to
have been paid for each such day, provided it did not exceed the per
diem, in lieu of per diem.
     There is a long standing construction of said §§40.24 and 90.14,
F. S., as providing mileage compensation for only 1 round trip for each
session of the grand jury or court, except in those cases where jurors
are required to return on the following, or a subsequent, week. This
construction is of long standing, and the legislature has not seen fit to
change it by amendment or otherwise, so that it has acquired the status
of a contemporaneous, administrative construction, not clearly erroneous
or unreasonable and not in apparent conflict with any provision of law.
Therefore, this construction should be given great weight and not be
overturned except for the most cogent reasons.
     The above-stated questions are answered in the negative for the
reasons stated and the long-standing practice and construction by the
officers charged with the administration of the said sections.
067-64-September 11, 1967
               PUBLIC FUNDS IN STATE TREASURY
1967-1969 GENERAL APPROPRIATIONS-CONSTRUCTION OF §4,
ART. IX, STATE CONST.-OFFICERS, BOARDS AND AGENCIES
            LACKING SPECIFIC APPROPRIATION
To: Claude R. Kirk, Jr., Governor, Tallahassee
QUESTIONS:
        1. What is the legal status of the several state agencies
   or divisions for which no funds were appropriated for the
   fiscal years 1967-1969?
        2. Can the governor, by proclamation or other means,
   designate or permit other agencies or personnel under the juris-.
   diction or direction of the governor to perform the lawful duties
   and functions of such agencies or divisions for which no funds
   were appropriated?
        3. In the name of which agency or official should any
   licensing or regulatory functions be performed if such agencies
   had no funds appropriated and the governor designated some
   other agency, under his direction, to perform the functions for
   such agencies or divisions?
     My examination of Chs. 67-300, 67-301 and 67·302, Laws of Florida,
 (1967 General Appropriations Acts) reveals no appropriation therein,
either from the general revenue fund or from a trust fund, for the
operation of the Florida Milk Commission during the annual periods
beginning July 1, 1967 and JUly 1, 1968. Neither do I find in said
appropriation act an appropriation, either from the general revenue
fund or a trust fund, for the nuclear and space commission. I find in
Item 350a., §1, Ch. 67-300, an appropriation of a "lump sum for activities
formerly performed by the Railroad Assessment Board" in the amount
of $43,000 for each fiscal year beginning on July 1, 1967 and on July 1,
1968, said appropriations being made to the comptroller's office from
the general revenue fund, but no appropriation directly to the railroad
assessment board. Items 7-11, §1, Ch. 67-301, made appropriations
totaling $36,064 for the fiscal year beginning July 1, 1967, and $36,775
for the fiscal year beginning July 1, 1968, to the aviation division of the   \:
board of commissioners of state institutions; however, these appropria-       )'
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