State Ex Rel. Enby v. Wood

• Decision Date: 06 October 1939
• Citation: State Ex Rel. Enby v. Wood, 140 Fla. 185, 191 So. 769 (Fla. 1939)
• Parties: STATE ex rel. ENBY et al. v. WOOD, Tax Collector, et al.
• Court: Florida Supreme Court

191 So. 769

140 Fla. 185

STATE ex rel. ENBY et al. v. WOOD, Tax Collector, et al.

Florida Supreme Court, Division B.

October 6, 1939

Rehearing Denied Nov. 6, 1939.

Original mandamus proceeding by the State, on the relation of David B Enby and another, trading and operating as Funland Park against Hayes Wood, Tax Collector of Dade County, Florida and another. On motion for a peremptory writ.

Peremptory writ denied.

COUNSEL B. K. Roberts and H. H. Wells, both of Tallahassee, for relators.

Melbourne L. Martin, of Miami, and H. O. Pemberton, of Tallahassee, for respondents.

OPINION

CHAPMAN Justice.

A motion to quash the alternative writ of mandamus previously issued by this Court was denied. See State ex rel. David B. Enby et al. v. Hayes Wood, as Tax Collector of Dade County, Florida, et al., 186 So. 420. The order of denial likewise required the respondents to file such answer or return to the alternative writ as they or either of them may be advised.

In the motion to quash the alternative writ, the relators contended that they were engaged in a show or amusement business of a permanent nature located at Northwest 7th Avenue and 24th Street in the City of Miami, Florida, and were liable under Chapter 18011, Acts of 1937, Laws of Florida, for the amount of a license fee to operate their show or amusement business so permanently located in the sum of $150, and then and there deposited the aforesaid amount with the officers of Dade County and simultaneously demanded a license to conduct or operate their business as a show or amusement permanently located in the City of Miami.

It was contended on the part of the respondents that Chapter 18011, supra, was inapplicable in prescribing the amount of the license fee to be paid by relators, because the relators' show business was not permanently located as represented so as to bring relators and their business within the provisions of the aforesaid Act, but on the other hand, it was a traveling show and not permanently located in Miami as contended; that they had operated the show in different towns and citied of Florida, and that the relators, as a matter of law, were amenable to pay a license prescribed by Section 1244, C.G.L., and Section 3 of Chapter 17758, Acts of 1937, Laws of Florida, being considerably larger in amount than that claimed by the relators.

The answer or return of the respondents to the alternative writ made known or represented that the relators operated a traveling show or amusement not having a permanent location in Miami, but was a traveling show and had given exhibitions at Fort Lauderdale, Florida, in February, 1938; Homestead, Florida, in February, 1938, and other places in Dade County, Florida, in March, 1938; Palmetto, Florida, in January, 1939; West Palm Beach, Florida, in February, 1939. Several photo-static copies of applications were attached to the answer or return of the respondents which were made during the years 1938 and 1939 to Honorable J. M. Lee, State Comptroller, for a permit to engage in the business of a traveling show in the State of Florida on the part of the relators. Photostatic copies of correspondence between the relators and the Honorable J. M. Lee about the issuance of a permit to engage in the business of operating a traveling show are attached to and by appropriate reference made a part of the answer or return. These facts stand undisputed in the record.

The fact that the relators had operated a traveling show in several towns and cities of Florida and made representations to the respondents that the show or amusement enterprise so operated by relators had a permanent location in Miami is not...