State ex rel. Bergin v. Dunne

• Decision Date: 23 March 1954
• Citation: 71 So.2d 746
• Parties: STATE ex rel. BERGIN v. DUNNE et al.
• Court: Florida Supreme Court

Page 746

71 So.2d 746

STATE ex rel. BERGIN v. DUNNE et al.

Supreme Court of Florida, En Banc.

March 23, 1954.

Rehearing Denied April 27, 1954.

R. K. Bell, Miami, for appellant.

Edward L. Semple and Frank T. Imand, Miami, for appellees.

SEBRING, Justice.

James B. Bergin, a plumbing contractor, filed a mandamus action for the purpose of compelling the Board of Plumbing Examiners of the City of Coral Gables, Florida, to reinstate his master plumber's license which he claims had theretofore been revoked and cancelled by the Board without notice or hearing. The Board answered the alternative writ, admitting that the license had been revoked and cancelled without notice or hearing and averring that the license had been obtained through fraud and deceit, that the relator had never taken and satisfactorily passed the plumber's examination required by the controlling city ordinance as a condition precedent to the issuance of a master plumber's license, and that consequently the relator never became entitled to receive such a license in the first instance.

The relator moved for the issuance of a peremptory writ the return of the respondents notwithstanding. In an order denying the motion and dismissing the cause the trial court found and adjudicated as follows:

'The issue before the Court as made by the pleadings is whether, under the provisions of section 12 of Ordinance No. 669 of the City of Coral Gables, relator is entitled to hearing before his license can be legally revoked by the respondents. The court finds as a matter of law that the respondents under the provisions of section 12 of Ordinance No. 669 are empowered to revoke the relator's license without notice and without a hearing. It is thereupon and in consideration thereof

'Ordered and Adjudged that the relator's motion for peremptory writ notwithstanding the return be and the same is hereby denied and relator being willing to rest this case on the pleadings of said cause, be and the same is hereby dismissed and the alternative writ discharged. * * *' (Emphasis supplied).

This appeal is from the order of dismissal.

The sections of Ordinance No. 669 of the City of Coral Gables which bear upon the question raised upon this appeal provide as follows:

'Section 10. Examinations--Licenses--Certificates of Competency. (a) Every contractor shall procure and maintain at all times while so engaged, a city license therefor as is provided for in this ordinance. * * * (c) An examination for proficiency shall be required prior to the issuance of a certificate of competency, authorizing the person named therein to engage in or perform work within the City of Coral Gables, in any of the following classifications * * * (1) Master Plumber. * * *

'Section 11. Licenses: (a) In all classifications of contracting wherein an examination for proficiency is required by Section 10 hereof, no contractors' licenses shall be issued to any individual until [he] shall have taken and satisfactorily passed the examination. * * *

'Section 12. Power of Board of Examiners: Each Board shall have the power, in addition to all other powers provided for in this Ordinance, to revoke the certificate of any Master or Journeyman, and to invoke the license of any Contractor * * * who shall be guilty of * * * (a) Fraud or deceit in obtaining a license. * * * The Building, Plumbing or Electrical Inspectors of the City of Coral Gables, the Architect or Engineer who is responsible for the plans under which the contractor is working or any other person directly interested in the contract may prefer charges against a licensee under this Ordinance. Such charges must be made in writing and sworn to by the complainant and submitted to the proper Board. It will then be the duty of [the] Board * * * to investigate the charges * * * If the Board does not determine on preliminary investigation that the charges are unfounded or trivial, a public hearing shall be called and held upon such charges. * * * A copy of the charges, together with the notice of the time and place of hearing, shall be served on the accused at least five (5) days before the date fixed for the hearing. * * * If, after the hearing, the Board's decision shall be that the licensee has been guilty of the charges preferred against him, his license shall be suspended, cancelled or revoked * * *.'

It will be noted that in the judgment appealed from the trial court found 'that under the provisions of Section 12 of Ordinance No. 669 [the respondents] are empowered to revoke the relator's license without notice and without a hearing.' Following this finding, the decretal part of the order adjudged that the relator's motion for peremptory writ should be denied and the cause dismissed.

While we have some difficulty in following the reasoning upon which the trial court bottomed its order dismissing the cause, it is well established that on an appeal from an order of a trial court granting or denying relief in a particular cause, the appellate court will ordinarily look to that which has been done, rather than to the specific reasons assigned therefor, in determining whether reversible error has been committed. Smith v. Croom, 7 Fla. 180; Adams v. American Agricultural Chemical Co., 78 Fla. 362, 82 So. 850; Baylarian v. Tunnicliffe, 105 Fla. 484, 141 So. 609, 144 So. 844; Perkins v. City of Coral Gables, Fla., 57 So.2d 663.

In the instant case the matter for final adjudication before the trial court was presented by a motion of the relator for the issuance of a peremptory writ notwithstanding the return of the respondent. Under our decisions, 'such a motion stands as the equivalent of a demurrer to a pleading in a law action. It operates as an admission by the relator of the truth of the facts well pleaded by the respondent but claims that in law the return presents no sufficient reason why the relief sought in the alternative writ should not be granted. * * * Such being its effect, the hearing on such a motion contemplates the entry of a final order without the submission of evidence, either quashing or dismissing the alternative writ or granting the peremptory writ to the extent that the prayer of the alternative writ is well founded'. State ex rel. Hawkins v. Board of Control of Florida, Fla., 47 So.2d 608, 611, and cases therein cited.

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