State Ex Rel. Adams v. Lee

• Decision Date: 03 December 1936
• Citation: 126 Fla. 396,171 So. 333
• Parties: STATE ex rel. ADAMS et al. v. LEE, State Comptroller.
• Court: Florida Supreme Court

171 So. 333

126 Fla. 396

STATE ex rel. ADAMS et al. v. LEE, State Comptroller.

Florida Supreme Court

December 3, 1936

Original proceedings instituted by an information in the nature of quo warranto by the State, on the relation of Thomas B. Adams and others, against J. M. Lee, as State Comptroller. On motion for leave to file an amended information.

Motion denied, and proceedings dismissed.

COUNSEL Thomas B. Adams, of Jacksonville, for relators.

Cary D Landis, Atty. Gen., H. E. Carter and W. P. Allen, Asst Attys. Gen., and J. Velma Keen, of Tallahassee, for respondent.

OPINION

BROWN Justice.

This case is again before us upon motion for leave to file an amended information, consisting of 27 sections, comprising some 62 pages of typewritten matter.

The original information in the nature of quo warranto filed by these relators challenged the authority of the respondent comptroller to exercise the alleged franchises, functions immunities, powers, and privileges attempted to be vested in him by chapter 16848, Acts 1935, known as the Chain Store Act, which act imposed certain duties upon the comptroller relating to the enforcement of the act and vested in him certain powers to be exercised by him in accomplishing such enforcement. The grounds upon which the judgment of ouster was prayed for were based upon the alleged invalidity and unconstitutionality of the act as a whole.

As pointed out in the special concurring opinion of Circuit Judge Smith, in the decision of this court overruling the relator's demurrer to respondent's plea and answer ( State ex rel. Adams et al. v. Lee, 122 Fla. 639, 166 So. 249), the attack made by the relators was in reality upon the validity of the statute and the authority of the comptroller to enforce it, rather than an effort to oust the comptroller from the usurpation of an office or franchise, the statute not having vested the comptroller with any office or franchise, and that therefore quo warranto was not the proper remedy. But as the respondent had made no timely objection to the propriety or form of the remedy adopted, and as this was one of several cases before the court involving the constitutionality of the chain store statute with substantially the same legal issues in each case, it was considered by the court expedient to overlook the matter of form and procedure in this particular case in order to consider the merits of the questions then raised by this case in connection with the entire group of cases. And in the majority opinion, written by Mr. Justice Davis, it was said:

'Relators and corelators, all of whom are ad valorem taxpayers of the state of Florida, by an information in the nature of quo warranto (not joined by the Attorney General because he represents the respondent comptroller, a state officer), challenge the warrant or authority of the respondent, J. M. Lee, as comptroller of the state of Florida, to enjoy, exercise, and perform the franchises, functions, and powers attempted to be vested in him by chapter 16848, Acts 1935, an act of the last session of the Legislature, otherwise referred in these proceedings as Senate Bill No. 724.

'Since the gist of the complaint asserted by petitioners is the alleged total invalidity of the legislative act thus brought into controversy in these proceedings, and since the predominant question of constitutionality of the involved enactment is otherwise properly in issue before this court in companion cases (Chavers v. Harrell, 166 So. 261; State ex rel. Chavers v. Lee 166 So. 262) which have been argued, considered, and decided in connection with this case, we pass sub silentio the respondent's objections to the availability of quo warranto as the proper form of legal remedy authorized to be employed by the relators in their proceedings against respondent, and give our attention and consideration to the substance of petitioners' complaint against the legislative act whose enactment has occasioned this litigation.'

The decision on said former hearing upheld the constitutionality and validity of the act except as to the graduated feature of the gross receipts tax caused by the inclusion in the act of classes 2 to 6 of subdivision B of section 4 thereof, which were by the court held invalid and were stricken down and regarded as eliminated from the act, leaving the remainder of the statute to stand as a valid statute, as against the various attacks then made upon its constitutionality, both as to the manner of its passage through the Legislature and the provisions of the act itself. Therefore, the relators' demurrer to respondent's plea and answer, which plea and answer asserted the validity of the act in the light of the factual situation as alleged to exist, were overruled.

On rehearing, the former opinion and decision was adhered to (see 122 Fla. 670, 166 So. 262) and later a further petition for rehearing was denied. 122 Fla. 700, 166 So. 574.

Before the order denying rehearing was granted, the relators here had filed a replication to respondent's plea, and respondent had filed motions to strike sundry parts of the replication. The matters set up in the replication are covered in the proposed amended information. By reason of delay occasioned by an effort made by respondent to have the decision of this court, invalidating the graduated feature of the gross receipts tax as provided in the act, reviewed by the federal Supreme Court on certiorari, the above status of the pleadings continued until the petition for certiorari was denied, on the ground that no final judgment had been entered. Lee v. State of Florida ex rel. Adams, 57 S.Ct. 15, 81 L.Ed.399. While the respondent was endeavoring to obtain review of this court's action by certiorari, the relators moved this court to dismiss this case. The respondent, represented by the Attorney General, opposed this motion, and this court denied said motion to dismiss, and ordered that 'entry of final judgment on the pleadings heretofore considered be suspended and deferred until the further order of this Court.'

This motion for leave to file an amended information was made before the federal Supreme Court had acted on the petition for certiorari, and this court deferred action thereon until the federal court had ruled, which was done on October 12 1936, by denying the petition for certiorari. Whereupon hearing was by this court granted on relator's motion for leave to file the amended information, which motion was opposed by the Attorney General, on behalf of respondent, among other reasons because (1) quo warranto was in no event an appropriate remedy; (2) because the amended information set up nothing substantially new, and was an effort to obtain a further rehearing on matters already ruled upon by this court; and (3) because it was unnecessary, the same questions sought to be raised being involved in two chancery cases then pending, and which would likely reach this court on appeal, referring to the Dunlop Tire & Rubber Company Case (Dunlop Tire & Rubber Co. v. Lee) 171 So. 331, and the Mason Lumber Co. Case (Mason Lumber Co. v. Lee) 171 So. 332, both now here on appeal, and decisions rendered. The first ground of the Attorney General's objections to the filing of the amended information, which questioned the availability of the remedy by quo warranto, whether well taken or not, is inconsistent with prior positions taken by the respondent, in so far as the total invalidity of the statute is asserted, as was...