Gay v. Ogilvie
| Decision Date | 28 July 1950 |
| Parties | GAY, State Comptroller, v. OGILVIE, Judge. |
| Court | Florida Supreme Court |
Richard W. Ervin, Attorney General, and Fred M. Burns, Assistant Attorney General, for petitioner.
Jennings, Watts, Clarke & Hamilton, Jacksonville, for respondent.
The petitioner seeks to prohibit the respondent Circuit Judge of Duval County from proceeding further in a suit for declaratory judgment and other relief instituted by the Jacksonville Symphony Association against the State Comptroller.
The suit was brought to obtain a judicial interpretation of certain provisions of the Florida Revenue Act of 1949, F.S.A. § 212.01 et seq., under which the Comptroller has collected taxes on tickets for admissions to concerts given by the Association, to secure a determination that such transactions are exempt from the payment of taxes, and to require the Comptroller to refund moneys which have been heretofore paid by the Association to the Comptroller. After the bill of complaint was filed the Comptroller served and filed his motion to dismiss the bill, the substance of the grounds of the motion being that inasmuch as the suit was against a state officer whose official residence was at Tallahassee, Leon County, Florida, the suit was maintainable only in Leon County. The motion to dismiss the bill was denied and the Comptroller was ordered to answer. Thereupon, the Comptroller filed his suggestion in this Court, seeking prohibition on the same grounds as were urged in the motion to dismiss the bill in the court below. The question for decision is whether the suggestion filed in this Court makes out a case entitling the comptroller to a writ of prohibition.
It is settled in this jurisdiction that the question whether a state agency must be sued in the county where the seat of government is located or may be sued in another county is a question of venue and not of jurisdiction over the subject matter of the litigation. See Smith v. Williams, 160 Fla. 580, 35 So.2d 844. As is made plain by the foregoing case, there are two types or classes of cases where rules and regulations promulgated by state agencies--and let us now add, where official action taken by state agencies under existing statutes--may be brought into question in suits properly instituted for such purposes. The first is the type or class in which the primary purpose of the litigation is to obtain a judicial interpretation or declaration of a party's rights, duties or status under such rules and regulations or official action taken, where no unlawful invasion of a lawful right secured to the plaintiff by the Constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. The second is the type or class in which the primary purpose is to obtain direct judicial protection from an alleged unlawful invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, because of the enforcement or threatened enforcement by a state agency of a statute, rule or regulation alleged to be unconstitutional as to the plaintiff, and where the validity or invalidity of the statute, rule or regulation sought to be enforced comes into question only secondarily and incidentally to the main issue involved.
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...as jurisdiction. (Copeland v. Copeland, S.C.Fla.1951, 53 So.2d 637; Bambrick v. Bambrick, supra, Stewart v. Carr, supra; Gay v. Ogilvie, S.C.Fla.1950, 47 So.2d 525; Henderson v. Gay, S.C.Fla.1950, 49 So.2d 325; Star Employment Service v. Florida Industrial Com'n., S.C.Fla.1960, 122 So.2d 17......
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