Ervin v. Taylor
| Decision Date | 31 July 1953 |
| Citation | 66 So.2d 816 |
| Parties | ERVIN, Atty. Gen. v. TAYLOR et al. |
| Court | Florida Supreme Court |
Richard W. Ervin, Atty. Gen., Ralph M. McLane, Asst. Atty. Gen., and James J. English, Sp. Asst. Atty. Gen., for appellants.
Sibley & Davis, Miami Beach, and Ward & Ward, Miami, for appellees.
A petition was filed in the chancery court by the appellees, all officials, seeking a declaration of their rights under Chapter 26807, Laws of Florida, Acts of 1951, and a determination of the constitutionality of that law.
No respondents or defendants were named in the petition. A few days afterward the attorney general filed a reply and the state attorney filed an answer and motion to dismiss. Of course, Section 87.10 Florida Statutes 1951, and F.S.A., contains a requirement that the attorney general or the state attorney be 'served with a copy of the proceedings' where an act of the legislature is 'alleged to be unconstitutional' and either is 'entitled to be heard', but their filing the pleadings we have mentioned did not necessarily make them adversaries. Exercise of the privilege could not supply adversaries where none had been named in the decree.
The circuit judge entered a 'final decree' reciting that the cause was heard on the petition and the responses of the attorney general and state attorney, declaring the act unconstitutional, and making a temporary injunction theretofore issued permanent. To whom the temporary injunction was directed we are not told.
The attorney general thereupon took an appeal 'to review that part of the Declaratory Decree' declaring the act unconstitutional and making the injunction permanent by staying provisions and penalties of the law. The command of the so-called permanent injunction is addressed to no one.
We do not sanction the procedure recognized by the chancellor. The complaint was a mere petition to the court to pass upon the validity of an act of the legislature. There were no adversaries, and being none, there was no actual controversy. In that situation there was no justification for adjudicating the constitutionality of the enactment. Ervin v. City of North Miami Beach, Fla., 66 So.2d 235.
The decree is reversed with directions to dismiss the petition.
Reversed.
Pursuant to Chapter 87, Florida Statutes 1951, F.S.A. (Declaratory Judgments Act), this suit was instituted by five attorneys in Dade and Hillsborough Counties, who are law enforcement officers, challenging the constitutional validity of Chapter 26807, Acts of 1951. They contend that said act is void and unconstitutional because it prohibits them from engaging in the practice of law so long as they hold their position as law enforcement officers. No other question was presented. The Circuit Judge held the act unconstitutional.
The majority opinion reverses that decree with directions to dismiss the petition on the theory that there were no adversaries to the cause, and being none, there was no actual controversy. In such a situation the majority opinion says that there was no justification for adjudicating the constitutionality of the act.
Suits under Chapter 87 for declaratory decree are instituted by petition, and while there is always in nature a controversy, it may not be such a one as would arise at common law. There was certainly no lack of controversy in this case, as I shall later point out. Some of the most celebrated cases in this country were not in the commonlaw sense adversary. Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281 and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366 are notable examples. Bond validation cases, habeas corpus cases, and cases involving wills and probate matters, fall in same category. Any State or Federal Reporter is full of them and in material aspects they are instituted and prosecuted not materially different from the way this case was prosecuted.
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Martinez v. Scanlan
...for such a declaration based on present, ascertainable facts or the court lacks jurisdiction to render declaratory relief. Ervin v. Taylor, 66 So.2d 816 (Fla.1953); see Sec. 86.011, Fla.Stat. In the case at bar, Scanlan and Martinez are disputing the constitutionality of the 1989 and 1990 a......
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North Shore Bank v. Town of Surfside
...no controversy within the meaning of the cases on the subject. Ervin v. City of North Miami Beach, Fla.1953, 66 So.2d 235; Ervin v. Taylor, Fla.1953, 66 So.2d 816. Another point of diffference in the two proceedings is the question of review by this Court. Under the Declaratory Judgment Sta......
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State Farm Mut. Auto. Ins. Co. v. Marshall, 92-2140
...facts, the circuit court lacks jurisdiction to render declaratory relief. Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991); Ervin v. Taylor, 66 So.2d 816 (Fla.1953); May v. Holley, 59 So.2d 636 (Fla.1952). See also Register v. Pierce, 530 So.2d 990 (Fla. 1st DCA), rev. denied, 537 So.2d 569 (......
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Manatee Cnty. v. Mandarin Dev., Inc.
...for such a declaration based on present, ascertainable facts or the court lacks jurisdiction to render declaratory relief.Ervin v. Taylor, 66 So. 2d 816 (Fla. 1953) ; see § 86.011, Fla. Stat. (1989). Martinez v. Scanlan, 582 So. 2d 1167, 1170 (Fla. 1991) (underlined emphasis added). Hence, ......