Clark v. Kreidt
| Decision Date | 04 June 1940 |
| Citation | 199 So. 333,145 Fla. 1 |
| Parties | CLARK v. KREIDT. |
| Court | Florida Supreme Court |
On Reconsideration December 20, 1940.
En Banc.Certiorari to Circuit Court, Dade County; Arthur Gomez, Judge.
Suit by George Kreidt against S. H. Clark, individually and as harbor master of the Port of Miami, Fla. From an interlocutory decree overruling a motion to dismiss the bill of complaint and from a decree granting a temporary restraining order defendant appeals by certiorari.
Reversed.
Elmore Cohen, of West Palm Beach, and H. H. Taylor and E. F. P. Brigham, both of Miami, for petitioner.
Irving F. Kalback and Shutts, Bowen, Simmons Prevatt & Julian, all of Miami, and Ragland, Kurz & Layton, of Jacksonville, for respondent.
This is an appeal by certiorari from an interlocutory decree overruling a motion to dismiss the bill of complaint and from a decree granting a temporary restraining order. The appeal was prosecuted under Rule 34 of the Rules of this Court.
The record and the briefs have been examined and Mr. Justice WHITFIELD, Mr. Justice BUFORD and Mr. Justice CHAPMAN are of the opinion that the writ of certiorari should be granted and the judgment appealed from quashed, while Mr Chief Justice TERRELL, Mr. Justice BROWN, and Mr. Justice THOMAS are of the opinion that the writ of certiorari should be denied.
When the members of the Supreme Court sit en banc for the consideration of appeals under Rule 34 of the Rules of this Court and after full consultation it appears that the members of the Court are permanently and equally divided in opinion as to whether the writ of certiorari should be granted and there is no prospect of an immediate change in the personnel of the Court, the writ will be denied and the decree or order below affirmed.
It is accordingly ordered, adjudged, and decreed that the decree appealed from be affirmed.
Affirmed.
On Reconsideration.
The record in this case discloses that George Kreidt filed his amended bill of complaint in the Circuit Court of Dade County, Florida, against S. H. Clark, individually and as Harbor Master of the Port of Miami, in which it was alleged that he was the owner of a small vessel, the MV Pilot No. 1, and was engaged in carrying freight, passengers and mail upon regular sailings from the Port of Miami to the Island of Bimini, B. W. I.; that he owned his own dock in the Port of Miami and has never had occasion to dock his boat at a dock, wharf or station in the Port of Miami other than his private dock or wharf, and for this reason is not, as a matter of law, required to pay fees for services rendered by the Harbor Master of the Port of Miami.
It is alleged that the Harbor Master, nor his deputies, had never rendered the plaintiff official services as Harbor Master, but submitted to the plaintiff a bill in the amount of $5, which he is required to pay before he can obtain a clearance of his vessel by the Collector of Customs of the Port of Miami, and the refusal to permit or allow his vessel to clear by the Collector of Customs without presenting a receipt by the Harbor Master for all bills due causes an irreparable injury to the plaintiff in that he will not be able to perform his contracts for carrying freight, passengers and mail upon regular sailings from the Port of Miami to the Island of Bimini and return.
The amount of the bills submitted as Harbor Master fees is the sum of $5 and defendant threatens the plaintiff with suit to collect the fees each fee presented constitutes a separate suit; that the plaintiff will be required to continue to pay other Harbor Master fees in order to obtain the clearance of his vessel, which are paid under protest; that in order to avoid a multiplicity of suits, irreparable injury and because the plaintiff has not a sufficient remedy at law, an injunction or restraining order should be entered against the defendant restraining him from rendering bills in the form of Harbor Master fees when in fact no official services have been rendered the plaintiff.
The defendant, in the court below, filed a motion to dismiss the amended bill of complaint on the grounds: (a) the amended bill of complaint is without equity; (b) the plaintiff has an adequate remedy at law; (c) the facts alleged are insufficient to show irreparable damages.
On hearing, the lower court entered an order overruling and denying the motion of the defendant below to dismiss the amended bill of complaint, and in the same order granted a temporary restraining order, restraining the defendant Clark, or any of his deputies, from rendering bills for services rendered plaintiff when no such services were actually rendered to the plaintiff by said Harbor Master or his deputies.
The defendant below filed an answer to the amended bill of complaint and a motion to dissolve the injunction or restraining order previously entered, but the same was by the lower court overruled and denied. The plaintiff filed a motion to strike described portions of the defendant's answer but the same was not ruled upon by the lower court.
From the order denying the motion to dismiss the amended bill of complaint and the order granting the temporary injunction or restraining order an appeal has been perfected to this Court and the same is here for review.
The order restrained the defendant below from presenting to the plaintiff bills for services rendered as Harbor Master when as a matter of truth and fact no official duties as Harbor Master of the Port of Miami were required by the plaintiff of the defendant, as he owned his own dock or wharf and used his vessel in the transportation of freight, passengers and mail from the Port of Miami to Bimini and return.
It is established law in Florida that a writ of injunction is an extraordinary writ and should not be granted lightly but cautiously and sparingly, and, while the writ may be beneficial, it should not be made an instrument of oppression and injury. See Savage v. Parker, 53 Fla. 1002, 43 So. 507; Godwin v. Phifer, 51 Fla. 441, 41 So. 597; Willis v. Hathaway, 95 Fla. 608, 117 So. 89. The granting or the withholding of a restraining order or injunction rests in the sound discretion of the Chancellor. It is true a Chancellor has broad judicial discretion in granting, denying, dissolving or modifying injunctions and where the evidence taken by the court in person is sufficient to warrant the action of the Chancellor, the appellate court will not interfere where no abuse of discretion appears. See Shaw v. Palmer, 54 Fla. 490, 44 So. 953; Gillis v. State Live Stock Sanitary Board, 94 Fla. 890, 114 So. 509. In the case at bar no testimony was taken in person by the Chancellor below and the restraining order issued on the sworn bill of complaint. It is incumbent upon the petitioner, before a reversal can be granted here, to show an abuse of discretion in issuing the restraining order on the part of the Chancellor below.
The motion to dismiss the amended bill on the ground that the same was without equity admits as true the material allegations to the effect that the plaintiff was the owner and master of the vessel, the MV Pilot No. 1, and likewise that plaintiff owned his dock or wharf situated in the Port of Miami and that he as owner of the vessel was under contracts for the transportation of freight, passengers and mail from the Port of Miami to the Island of Bimini, B. W. I., and return; that the plaintiff as owner and master of the vessel and in the operation of its business did not need and on no occasions was it necessary to dock his boat at any dock or wharf other than the privately owned dock of the plaintiff and for these reasons the harbor master, nor any of his deputies, had at any time rendered him services of any kind, but on each occasion when the plaintiff removed his vessel from the Port of Miami he was required to pay the harbor master the sum of $5 for alleged harbor master compensation.
It is here contended that the plaintiff below, as the owner of a private wharf situated in the Port of Miami at which he docked his boat on entering the port without the services of the harbor master, was not required by law under these circumstances to pay the bills for harbor master services and that the harbor master should be perpetually restrained from...
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