State Ex Rel. First Presbyterian Church of Miami v. Fuller

• Decision Date: 21 July 1938
• Citation: 182 So. 888,133 Fla. 554
• Parties: STATE ex rel. FIRST PRESBYTERIAN CHURCH OF MIAMI v. FULLER, City Manager, et al.
• Court: Florida Supreme Court

182 So. 888

133 Fla. 554

STATE ex rel. FIRST PRESBYTERIAN CHURCH OF MIAMI v. FULLER, City Manager, et al.

Florida Supreme Court

July 21, 1938

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Mandamus proceeding by the State of Florida, on the relation of the First Presbyterian Church of Miami, Florida, against A. E Fuller, as City Manager of the City of Miama, and as Director of Finance of the City of Miami, to compel the cancellation of certain liquor licenses. From an order quashing an alternative writ of mandamus, relator brings error.

Reversed.

COUNSEL Lilburn R. Railey, of Miami, for plaintiff in error.

J. W Watson, Jr., and E. F. P. Brigham, both of Miami, for defendants in error.

OPINION

CHAPMAN Justice.

This cause is here on writ of error to an order, dated December 28, 1937, quashing an alternative writ of mandamus, as made and entered by the Circuit Court of Dade County, Florida. The only assignment of error presented and argued here is the aforesaid order. The alternative writ previously issued was directed to A. E Fuller, as City Manager of the City of Miami, Florida, as well as A. E. Fuller, as Director of Finance of said city, directing and commanding the recall and cancellation of a certain liquor license, No. 111, issued by said City to Walgreen Drug Stores Co. to operate a retail liquor store for a period of one year after October 1, 1937; also license No. 43 dated September 28, 1937, issued to Turf Exchange Bar, Inc., and license No. 142 dated October 1, 1937, issued to the Hippodrome Cigar Store, Inc. These licenses authorized the retail sale of liquors in the City of Miami for one year next after date of issuance. The locations of Walgreen Drug Stores Co. at 200 East Flagler Street, Turf Exchange Bar, Inc., at 279 East Flagler Street, and Hippodrome Cigar Store, Inc., at 201 East Flagler Street, where liquor is being retailed or sold under the aforesaid licenses, are within three hundred feet of a Church maintained as the First Presbyterian Church of said City, which is the relator in this proceeding.

The laws of Florida authorize municipalities by ordinance to prescribe the location in municipalities where intoxicating liquors may be sold, and, pursuant to said power or authority, the City of Miami, on June 25, 1935, adopted or enacted ordinance No. 1288, of which the material portion for the disposition of this case is Section 17 thereof, viz.: 'Section 17. That no liquor shall be sold within 300 feet of any church or school; however, this provision shall not apply to a Package Store or to those now engaged in the business of selling liquor, wines and beers, and licensed under the Ordinances of the City of Miami.'

On October 25, 1937, respondents filed a motion to quash the alternative writ of mandamus on the grounds: (a) Adequate remedy at law; (b) equity had jurisdiction; (c) two of the licensees were licensed prior to the passage of the ordinance; (d) two of the licensees have sold liquor prior and subsequent to January 28, 1935; (e) one of the respondents is excepted from the ordinance; (f) no clear right to the writ; (g) respondents have no right or authority to revoke the licenses; (h) and other grounds.

The court below entered an order sustaining the aforesaid motion to quash the alternative writ of mandamus and from said order an appeal was perfected here.

One of the first questions for consideration is: Is mandamus available as a remedy to require or compel the city officials, respondents, to revoke and cancel the liquor licenses allegedly unlawfully issued by them?

The case of State ex rel. Goethe v. Parks, Fla., 179 So. 780, was an action in mandamus to compel a court to correct errors where it had arbitrarily ignored the regular established rules of procedure and arbitrarily suppressed testimony taken in a case, and arbitrarily dismissed a then pending case, and in holding that mandamus was the proper remedy said (page 784): 'In view of section 4 of the Declaration of Rights and other pertinent provisions of the Florida Constitution, the court was without authority, summarily and of its own motion, to suppress the testimony referred to, or to dismiss the bill of complaint in the chancery cause, even without prejudice, on the showing made in this record; and as such action could have been prohibited for lack of power, such unauthorized action, which was not vacated on motion to reinstate, may be remedied by mandamus; the remedy by appeal in such a case as this being not entirely adequate. See State ex rel. Melbourne State Bank v. Wright, 107 Fla. 178, 145 So. 598; State ex rel. Payson v. Chillingworth, 122 Fla. 339, 165 So. 264; State ex rel. Dillman v. Tedder, Judge, 123 Fla. 188, 166 So. 590; Curtis v. Albritton, 101 Fla. 853, 132 So. 677.'

The case of City of Fort Meade v. State ex rel. Rose, 120 Fla. 177, 162 So. 350, was an action in mandamus to compel the officers of said city to recognize, consider, and obey certain statutory provisions prescribing their official duties with reference to the enforcement of payment of special assessment certificates by foreclosure in equity which they refused to do, and this Court, in passing on this question, said (page 352):

'Now, under these sections of the statutes, it is clearly the duty of the governing authorities of the city of Fort Meade to enforce the payment of the special assessment certificates by foreclosure suit in equity. The moneys derived from the collection of the special assessment certificates constitute a trust fund in the hands of the city for the payment of the bonds issued against such certificates and in pursuance to the statutes referred to. Therefore, it necessarily follows that the relator has the legal right to require the city officials to perform the duty prescribed by statute for the purpose of producing the trust fund with which to pay off and discharge his delinquent bond and delinquent bond interest coupons.

'The statutes governing the issuance of bonds constitute a part of the obligation of the bond the same as if it were written therein. That mandamus is a proper remedy to coerce the performance of the duty devolving upon the municipal authorities by statute can hardly be questioned. State ex rel. Dos Anigos v. Lehman, 100 Fla. 1313, 131 So. 533; State v. Gray, 92 Fla. 1123, 111 So. 242; State ex rel. Railroad Com'rs v. Florida East Coast R. Co., 69 Fla. 165, 67 So. 906; Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383; Leatherman v. Schwab, 98 Fla. 885, 124 So. 459; State ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739, 37 A.L.R. 1298; Welch v. State, 85 Fla. 264, 95 So. 751; Myers v. State, 81 Fla. 32, 87 So. 80; Johns v. County Com'rs, 28 Fla. 626, 10 So. 96; Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41; State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 So. 213, 13 L.R.A.,(N.S.), 320, 12 Ann.Cas. 359; State ex rel. Hillsborough v. Amos, 100 Fla. 1335, 131 So. 122. See, also, State ex rel. Board of Com'rs v. Helseth, 104 Fla. 208, 140 So. 655; State ex rel. Howarth v. Jordan, 105 Fla. 322, 140 So. 908; Hardee v. State, 83 Fla. 544, 91 So. 909.'

The charter power of the City of Miami to adopt or enact Ordinance No. 1288 is Chapter 16774, Laws of Florida, Acts of 1935. Section 17 of Ordinance No. 1288 provides that no liquor shall be sold within 300 feet of any Church or school. The motion to quash the alternative writ admits as true the allegation that Walgreen Drug Stores Co., Hippodrome Cigar Store, Inc., and Turf Exchange Bar, Inc., are each retailing liquor within 300 feet of the First Presbyterian Church of the City of Miami and are each doing so under the licenses above mentioned. The officials of said city in issuing licenses to sell liquor were bound by the spirit and letter of Ordinance No. 1288 and when the licenses, supra, were issued, it was in derogation of and in a total disregard of their official duties, the licensees not having been shown to fall in the exception of Section 17, supra. It is clear that the licenses, supra, to sell liquor within 300 feet of the First Presbyterian Church were not authorized by law.

It is contended that each of the licensees here are interested parties and are not parties to the suit. The case of State ex rel. Long v. Carey, 121 Fla. 515, 164 So. 199, and Vol. 33 Corpus Juris, page 567, par. 165, are cited and relied upon. The answer to this is that from the issues presented the officers acted unlawfully in issuing each of these licenses.

It is contended that the revocation of a license is a judicial or quasi judicial power and the licensees here have a right to be heard before the same are revoked, and State ex rel Arpen v. Brown, 19 Fla. 563; Florida Motor Lines, Inc. v. Railroad Commissioners, 100 Fla. 538, 129 So. 876, are cited to sustain this conclusion. The privilege to sell liquor within the incorporate limits of the City of Miami is authorized under Ordinance No. 1288, and the power to adopt or enact the said Ordinance was granted by Chapter 16774, Laws of Florida, Acts of 1935. The privilege to sell liquor under the licenses here was granted under the provisions and regulations prescribed by law, namely, that the same should not be sold within 300 feet of a church or school. The licenses were issued subject to all lawful regulations and the holder, or holders, thereof are presumed to know the provisions and regulations controlling the sale of liquor. The power to revoke the licenses under the ordinance, it is true, was vested in the Municipal Judge of said City, but this power is not exclusive. These regulations may be increased or withdrawn at the discretion of the Legislature, and persons engaged in the liquor business, or about to become engaged therein, do so with...