Henderson v. Gay

Citation49 So.2d 325
PartiesHENDERSON v. GAY, Comptroller.
Decision Date15 December 1950
CourtUnited States State Supreme Court of Florida

Yonge, Whiteside & Prunty, and H. Earl Barber, all of Miami, for appellant.

Richard W. Ervin, Atty. Gen., Fred M. Burns and Clyde G. Trammell, Jr., Asst. Attys. Gen., for appellee.

THOMAS, Justice.

The appellant filed a bill in the Circuit Court of Dade County to secure an injunction against the collection by the comptroller of certain taxes he had imposed under Chapter 26319, Laws of Florida, Acts of 1949, F.S.A. § 212.01 et seq., and to recover taxes already paid under that law. When the matter reached the chancellor upon a motion to dismiss, he held that he had 'no jurisdiction over the Comptroller * * * as such in this proceeding and that the venue and jurisdiction * * * should be in Leon County, Florida, the legal residence of the Comptroller * * *.' The controversy now reaches us on an appeal from the chancellor's order.

We cannot agree with the chancellor that the place where actions are to be brought against the comptroller is a matter of jurisdiction; it is one of venue, as was positively held in Gay, Comptroller, v. Ogilvie, Judge, Fla., 47 So.2d 525. So our comment will be restricted to the privilege of the comptroller in this particular litigation to defend the suit at the seat of government.

In two recent opinions of this court the line of demarkation between those cases which must be brought in Leon County, if the comptroller insists upon it, and those which may be brought elsewhere has been defined. In Smith v. Williams, Circuit Judge, 160 Fla. 580, 35 So.2d 844, Mr. Justice Sebring, speaking for the court, pointed out that when the legislature has fixed the residence of a government agency, in that case the Florida Industrial Commission, a suit primarily affecting the construction of the rules or regulations of the agency must be brought in the county of its headquarters if the defendant claims that privilege, while suits for protection against the invasion of the constitutional rights of the plaintiff within the county where the suit is instituted, the validity of such rules and regulations being only secondary, may be entertained in the county where the invasion is threatened or has occurred.

This pronouncement was repeated and somewhat enlarged in Gay, Comptroller, v. Ogilvie, Judge, supra. Parenthetically, it should be noted that both this case and Smith v. Williams, supra, were original proceedings for prohibition, and the court concluded that prohibition would not lie, obviously because only venue was involved and not jurisdiction.

Still later, in Gaulden v. Gay, Fla., 47 So.2d. 580, 581, we approved a ruling of the chancellor that suits against the comptroller to test the legality of taxes could be maintained against him only in Leon County unless he waived the privilege or "unless some attempt to seize and sell property * * * has been actually initiated in the county where the suit is brought."

With this background of the decisions of the court on the subject we return to the situation disclosed in the bill of complaint filed in the instant case. It was called a bill for declaratory decree, and set out that certain property of the plaintiff used in a private hospital had been taxed improperly under the revenue act, and the tax had been paid. The plaintiff prayed that...

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13 cases
  • Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State
    • United States
    • Florida District Court of Appeals
    • May 14, 1974
    ...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 174) The privilege of a defendant to be sued in a partic......
  • Williams v. Ferrentino
    • United States
    • Florida District Court of Appeals
    • June 2, 1967
    ...Fish Commission v. Williams, 1946, 158 Fla. 369, 28 So.2d 431; Larson v. R. K. Cooper, Inc., Fla.1954, 75 So.2d 757, and Henderson v. Gay, Fla. 1951, 49 So.2d 325. However, there are two exceptions, important here, to the foregoing general rule. These exceptions are (1) where there is a thr......
  • Paxson v. Collins
    • United States
    • Florida District Court of Appeals
    • February 13, 1958
    ...prevents conflicting judicial rulings in different jurisdictions' are Smith v. Williams, 160 Fla. 580, 35 So.2d 844, 847; Henderson v. Gay, Fla.1950, 49 So.2d 325; Gay v. Jacksonville Symphony Ass'n, Fla.1951, 53 So.2d 110. In addition the last three cited cases advance the additional and p......
  • McCarty v. Lichtenberg
    • United States
    • Florida Supreme Court
    • October 23, 1953
    ...54, 164 So. 188; Gay v. Jacksonville Symphony Association, Fla., 53 So.2d 110; Smith v. Williams, 160 Fla. 580, 35 So.2d 844; Henderson v. Gay, Fla., 49 So.2d 325; Gay v. Ogilvie, Fla., 47 So.2d 525, and similar cases which hold that Trustees of the Internal Improvement Fund and other admin......
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