State ex rel. Bie v. Swope

• Decision Date: 20 May 1947
• Citation: 30 So.2d 748,159 Fla. 18
• Parties: STATE ex rel. BIE v. SWOPE et al.
• Court: Florida Supreme Court

30 So.2d 748

159 Fla. 18

STATE ex rel. BIE v. SWOPE et al.

Florida Supreme Court

May 20, 1947

Rehearing Denied June 23, 1947.

Appeal from Circuit Court, Pinellas County; Victor O. Wehle judge.

Lee L. Baker and Ray E. Ulmer of Baker & Ulmer, both of Clearwater, for appellant.

W. H. Poe, of Orlando, for appellees.

BUFORD, Justice.

Norman Bie is a real estate broker licensed under Chapter 475, Fla.Statutes 1941, same F.S.A. On August 3, 1946, an information was filed before the Florida Real Estate Commission charging Norman Bie with having done and performed certain acts which constitute grounds for suspension or revocation of real estate broker's license under Sec. 475.25. Copy of the information was mailed to Norman Bie by registered mail and on August 24, 1946, Norman Bie filed before the said Commission his answer to the information in which he first objected to the jurisdiction of the Florida Real Estate Commission and challenged its right to proceed in the matter. He then, without waiving the objection to jurisdiction challenged the sufficiency of the information on the ground that the allegations thereof were so vague, indefinite and uncertain and duplicitous as not to afford the defendant reasonable knowledge or information as to what charges were preferred against him. He then answered each count of the declaration which answers are not necessary to be delineated or discussed here. Later he filed a supplemental answer in which he challenged the power of the Commission to revoke or suspend the real estate broker's license held by him.

On November 19, 1946, the Florida Real Estate Commission appointed an Examiner and on November 23, 1946, the Commission overruled and denied the objection to the jurisdiction of the Commission, basing its said judgment on the provisions of Chapter 22861, Laws of Florida 1945, the provisions of which Chapter were subsequently modified in 1945 Cumulative Supplement, Vol. 1, Fla. Statutes 1941 F.S.A. §§ 475.29, 475.31, 475.43, 475.44.

On November 29, 1946, Bie in the name of the State of Florida ex rel. Norman Bie v. O. P. Swope et al., constituting the Florida Real Estate Commission, filed his suggestion for writ of prohibition in the Circuit Court in and the Pinellas County, challenging the jurisdiction of the Commission to proceed further in said cause. Whereupon, rule to show cause was issued to the named respondents.

On December 5, 1946 demurrer to the rule to show cause was filed by the respondents and on the same date answer and return was filed.

On January 15, 1947, the Court entered its order sustaining the demurrer of the respondents. The order of the Court in this regard is as follows:

'The Court is of the opinion that the proponents of the 1945 amendments of Chapter 475, Florida Statutes 1941, apparently hoped to confer upon the Florida Real Estate Commission exclusive jurisdiction to hear and determine applications for the revocation or suspension of the registration of real estate brokers and salesmen. Whether the effect of the amendments as adopted was to confer such exclusive jurisdiction or merely jurisdiction concurrent with that of the Circuit Court, previously granted under Section 475.25, Florida Statutes, 1941, is not now determined by this Court. The legislature had the right to confer either exclusive or concurrent jurisdiction on the Commission and its action in so doing was not unconstitutional. The law as amended is by no means free from vagueness and may eventually require judicial interpretation of the details of the manner in which it should be applied and enforced. Such determination is not the object or purpose of this litigation. The action of the Legislature in conferring jurisdiction upon the Real Estate Commission to hear and determine the type of causes herein sought to be heard and determined has not been clearly shown to be unconstitutional.

'In so ruling, this Court is neither approving nor disapproving the wisdom of such action. That is within the province of the Legislature, not the Court. Nor is the Court expressing any opinion as to whether Mr. Bie is guilty of any of the acts with which he is charged. That issue remains to be determined by a proper tribunal.

'It is therefore ordered, adjudged and decreed that the respondents' demurrer be, and the same is hereby sustained.'

From this order, appeal has been perfected which brings the matter here for consideration.

The effect of the 1945 amendatory act is so confusing that it is extremely hard to determine, and impossible to determine with certainty, just what the powers of the Commission are under the present state of the law. The provisions of the act as it now reads are in several respects inconsistent and contradictory.

Section 475.25 provides that 'The circuit court may revoke or suspend the registration of any broker or salesman when it is satisfied that said broker or salesman has: (1) Obtained registration by means of fraud, misrepresentation, concealment, or through the mistake or inadvertence of the commission'. Then follows twelve other grounds on which the Circuit Court may revoke or suspend the registration.

Section 475.29 provides: '475.29. Jurisdiction. The commission shall have jurisdiction to hear and determine the cause both in cases where the defendant shall be a registrant. The defendant in all cases may appear in person, by counsel, or both, before the examiner, the commission or the court on appeal, as may be prescribed by rule. All registrants who are alleged to have participated in the wrongful conduct may be joined as defendants in one information, but shall be granted separate trials upon petition.'

Section 475.31 provides: 'After submission of the cause upon action or depositions, the commission, after being sufficiently advised in the premises, shall cause a final order to be entered in an appropriate order book denying, revoking or suspending the registration of the defendant, or dismissing the information. The cause may, however, be referred back to the examiner for additional proof where material, relevant or competent evidence has been erroneously excluded. The order shall contain findings of fact.'

And also provides: '(5) In all proceedings, the findings of fact of the commission shall have the same effect as a report of a general master in chancery. The order revoking or suspending the registration of a broker shall automatically suspend the certificate of all salesmen, and if a partnership or corporation, of all members, officers and directors, during the period of suspension or until new employment or connection is secured and registered; but such right of transfer or renewal shall not extend beyond a period of six months after such order shall be final. All orders of revocation or suspension shall become effective immediately upon the entering of the order and notice to the defendant.'

So the Act authorizes the Circuit Court to revoke or suspend the registration of a broker or a salesman for the commission of certain acts and also provides that the Commission shall have jurisdiction to hear and determine the cause and enter final judgment; and then the Act provides that in all proceedings the findings of fact by the Commission shall have the same...