Nelson v. State ex rel. Axman
| Decision Date | 16 November 1955 |
| Citation | 83 So.2d 696 |
| Parties | Frank M. NELSON, Jr., as Mayor-Commissioner, and Will C. Hughes, Tom Milam, Frank Parker and James Hayes, as Commissioners of City of Panama City, Florida, a municipal corporation, and City of Panama City, Florida, and Ed Wilcox, as License Inspector, City of Panama City, Florida, Appellants, v. STATE ex rel. Marion AXMAN, Appellee. |
| Court | Florida Supreme Court |
Mercer P. Spear, Panama City, for appellants.
W. Fred Turner, Panama City, for appellee.
Appellants, who were respondents in a mandamus proceeding below, appeal from the granting of a peremptory writ directing them to issue a beer and wine license to the appellee-petitioner.
The petition for the writ alleged that the appellee duly applied for an occupational license to permit her to sell beer and wine and that although she has complied with all the ordinances of the City, she was refused the license. Although many incidental issues are raised, the principal defense was that appellee's business was located in a zone in the City of Panama City where, by two ordinances, it was required that a beer and wine establishment be at least 1,000 feet from a school or church or other beer and wine license holder and that the appellee's location was within less than the required 1,000 feet of all three. The nub of the controversy is the question of the validity of the ordinance.
The charter of the City of Panama City, Section 40, Chapter 11678, Laws of 1925, reads as follows:
'Sec. 40. Legislative Procedure.-A majority of all members elected to the City Commission shall constitute a quorum but a less number may adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as may be prescribed by ordinance. The affirmative of a majority shall be necessary to adopt any ordinance or resolution, and the passage of all ordinances and resolutions shall be taken by 'Yeas' and 'Nays' and entered upon the journal.'
The Minutes of the meetings of the City Commission which adopted the ordinances recite the time and place of the meeting and the presence of a legal quorum of the City Commission, naming them. The Commission thereupon in each instance proceeded to adopt the ordinance. On one of these ordinances the action of the council is shown as follows, to-wit:
'The following Ordinance being presented as an emergency Ordinance, and the same being read in full, thereupon it was moved by Commissioner Ward, seconded by Commissioner Jinks and carried by a unanimous affirmative vote that said Ordinance be adopted.'
The action was shown to be identical on the second ordinance except as to the names of the Commissioners.
The attack on the ordinance is grounded on the proposition that the City Charter requires that the passage of all ordinances be taken by Yeas and Nays and entered upon the journal and that in this instance the journal fails to reflect the Yeas and Nays on the ultimate passage of the ordinance.
The Circuit Judge held the ordinance ineffective because of failure to comply with the requirements of...
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...with approval by: Monett Elec. Light, Power & Ice Co. v. City of Monett, 186 F. 360, 368-69 (C.C.D.Mo. 1911); Nelson v. State ex. rel. Axman, 83 So.2d 696, 698 (Fla.1955); City of Rome v. Reese, 19 Ga.App. 559, 91 S.E. 880, 881 (1917); Pontiac v. Axford, 49 Mich. 69, 12 N.W. 914, 915 (1882)......
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State ex rel. Cordrey v. Holter, 72--286
...Fla.App.1961, 133 So.2d 755. The presumption is not conclusive, however, and may be overcome. Gustafson, supra. See Nelson v. State, Fla.1955, 83 So.2d 696. To establish the invalidity of the ordinance, Mrs. Cordrey introduced copies of the minutes of the Council meetings held on July 23, A......
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Skaggs v. City of Key West, 74--534
...comprehensive ordinance as originally read and, therefore, it was not appropriate for the Commission to adopt such, citing Nelson v. State, Fla.1955, 83 So.2d 696; City of Coral Gables v. Sackett, Fla.App.1971, 253 So.2d 890; 23 Fla.Jur., Municipal Corporations, § 79; 56 Am.Jur.2d, Municipa......
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City of Coral Gables v. Sackett, 71--810
...requirement at the February 9 meeting was essential to validity of action on the ordinance at that meeting. In Nelson v. State ex rel. Axman, Fla.1955, 83 So.2d 696, the Supreme Court affirmed a judgment holding ineffective and invalid an ordinance where the minutes of the meeting involved ......