State Ex Rel. Florida Dry Cleaning and Laundry Bd. v. Atkinson

• Decision Date: 19 November 1938
• Parties: STATE ex rel. FLORIDA DRY CLEANING AND LAUNDRY BOARD v. ATKINSON et al.
• Court: Florida Supreme Court

188 So. 834

136 Fla. 528

STATE ex rel. FLORIDA DRY CLEANING AND LAUNDRY BOARD v. ATKINSON et al.

Florida Supreme Court

November 19, 1938

Original prohibition proceeding by the State, on the relation of the Florida Dry Cleaning and Laundry Board, against H. F Atkinson and others to prohibit the named respondent from entertaining a suit against the Dry Cleaning and Laundry Board.

Proceeding dismissed.

COUNSEL

McKay, Macfarlane, Jackson & Ramsey, of Tampa Walsh, Beckham & Ellis, of Miami, Marks, Marks, Holt, Gray &amp Yates, of Jacksonville, Geo. Couper Gibbs, Atty. Gen., and Lawrence Truett, Asst. Atty. Gen., for relator.

E. F. P. Brigham, of Miami, and Whitfield & Whitfield, of Tallahassee, for respondents.

OPINION

BUFORD Justice.

This is a prohibition proceeding, original here.

Rule nisi issued to respondents, as follows:

'This day this cause came on to be heard upon the Relator's petition for writ of prohibition, copy of said petition being hereto attached, and after having been duly considered by the Court, it is accordingly

'Considered, ordered, adjudged and decreed that the Respondents, H. F. Atkinson, as Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Economy Cash & Carry Cleaners, Inc., Economy Cash & Carry Laundry, Inc. and French Benzol Cleaners, Inc., do show cause herein within ten days after the service of said writ why the prayer of the petition should not be granted.'

The Petition alleged, inter alia:

'1. The Respondent, Economy Cash & Carry Cleaners, Inc., Economy Cash & Carry Laundry, Inc. and French Benzol Cleaners, Inc., have heretofore, on to-wit, the 31st day of August, 1938, filed a bill of complaint in the Circuit Court of Dade County, Florida, in Chancery against your relator and others praying a temporary restraining order against relator, which said suit is entitled as follows, towit: Economy Cash & Carry Cleaners, Inc., Economy Cash & Carry Laundry, Inc. and French Benzol Cleaners, Inc., Plaintiffs, vs. Florida Dry Cleaning & Laundry Board, a political body existing under Chapter 17894 of the Acts of the Florida Legislature for the year 1937, and W. R. Starling, W. M. Dale, I. G. Fonte, W. J. Hill, R. L. Daugherty, T. C. Nichols, T. M. Woodell as members of said Board, and Hunter Johnson as Executive Secretary of said Board, Defendants, and is now pending and has been pending in said Court ever since the filing of said bill of complaint. That a true and correct copy of said bill of complaint, except exhibits thereto attached, is submitted herewith as Exhibit A and true and correct copies of the exhibits referred to in said bill of complaint, to-wit orders number 1, 2, 5, 25 and 26, are likewise submitted herewith as Exhibits B. C. D. E. and F.

'2. That on to-wit, the said 31st day of August, 1938, one of the respondents herein, the Honorable H. F. Atkinson, as Judge of the Circuit Court in and for Dade County, Florida, signed and made an order temporarily enjoining your relator from enforcing against the plaintiffs in said bill of complaint named, any price fixing order promulgated or passed by the said Board and from instituting any action of any nature whatsoever against the said plaintiff therein named to compel the payment of any license taxes authorized by Chapter 17894 of the Laws of Florida, 1937. A certified copy of said order is submitted herewith and marked Exhibit G.

'3. That relator is an instrumentality of the State of Florida known as the Florida Dry Cleaning & Laundry Board, created by said Chapter 17894 of the laws of Florida, 1937, and that W. R. Starling, Chairman, T. C. Nichols, Secretary, T. M. Woodell, R. L. Daugherty, W. J. Hill, I. G. Fonte and W. M. Dale are now and have been at all of the times herein mentioned, the duly appointed, qualified and acting members of said Board and that said Board by said Act is given certain general powers, including the power to supervise and regulate the entire cleaning, dyeing and pressing industry in the State of Florida; to classify and establish different trade areas and provide different rules and regulations and charges therefor; to establish health and sanitation requirements; to fix minimum and maximum prices, or either, for the rendering of service in separate trade areas in connection with the industry aforesaid, as will more fully appear from Section Four of said Act, reference to which is hereby specifically prayed.

'4. That in said Act it is provided by Section Thirteen thereof that whenever any order of the Board shall make reasonable provision for any person affected thereby to make application to the Board for a rehearing and a supersedeas from such order complained, of, such person, firm or corporation, before applying to a court of chancery for relief in equity, 'shall first avail themselves of such right and opportunity to apply for such rehearing and supersedeas, or make a sufficient valid, legal showing on grounds cognizable in a court of equity for not having done so before being entitled to any other relief, provided nothing is herein intended to affect the several powers of any court of equity otherwise existing.'

'5. That in and by the orders of the Board referred to in the bill of complaint hereinabove mentioned, it was expressly provided as will appear from said orders that any person dissatisfied therewith might apply for rehearing and supersedeas, but the said respondents Economy Cash & Carry Cleaners, Inc., Economy Cash & Carry Laundry, Inc., and French Benzol Cleaners, Inc., have not, nor has any one of them or any one else at any time made application for rehearing as in said Act and said order provided or otherwise and that by reason thereof the said suit now pending in Dade County, Florida, is improperly and prematurely brought and the said court and the judges thereof, including the respondent the Honorable H. F. Atkinson, should not entertain said suit until a rehearing as provided is applied for, and that said respondents above mentioned have not shown by said bill of complaint any valid, legal grounds cognizable in a court of equity for not having done so.

'6. That said board has always been and is now ready and willing to receive and consider any such petition for rehearing that may be filed and presented in accordance with said act and with said orders hereinabove mentioned.

'7. That in and by section Three of said Act, it is provided 'the principal office of said Board shall be in such City in Florida as the Board may establish as headquarters', and it is further provided in and by Section Thirteen that any person aggrieved by any act of the Board taken under provisions of this Act which has resulted in the granting of a final order may file a bill of complaint in chancery 'in the circuit court of the circuit where the main headquarters of the Board is located, seeking to reverse, vacate or modify the said order complained of.'

'8. That the said Board has heretofore and prior to the institution of said suit in equity aforesaid and the making of the orders therein referred to, designated and established its principal office in Jacksonville, Florida, and that said principal office has always been in Jacksonville, Florida, and no place else, in the State of Florida and said principal office during all of said time has been and is the main headquarters of the Board so located in Jacksonville, Florida.

'9. That by reason thereof the Circuit Court of Dade County, Florida, is without jurisdiction to entertain a suit against the said Board and no court in the State of Florida can or could at any of the times herein mentioned have had jurisdiction of a suit against said Board except the Circuit Court of Duval County, Florida.

'10. That said respondent, the Honorable H. F. Atkinson, as Judge aforesaid, will continue to entertain said suit against this Board and proceed to consider the various matters and things therein presented and the said other respondents will continue to press said suit against this Honorable Board and its members unless prohibited by a writ from this Honorable Court.'

The prayer of the bill of complaint attached to and made a part of the petition is:

'Wherefore, The premises considered, it is respectfully prayed:

'(a) That the defendants and each of them may be compelled to answer this bill of complaint, but not under oath, answer under oath being hereby expressly waived.

'(b) That this Honorable Court will temporarily enjoin, without notice, until the further order of the Court, the defendants or either of them, their agents, attorneys, officers, servants and employees from enforcing any price fixing order of the defendant Board against these plaintiffs, and from instituting any action of any nature whatsoever against these plaintiffs for the purpose of compelling them to abide by any price fixing order of the defendant board against these plaintiffs, and from enforcing or attempting to enforce against these plaintiffs any license taxes provided for these plaintiffs to pay by either the order of the defendant board or by Chapter 17894 of the Acts of 1937 of the Florida Legislature.

'(c) That upon final hearing the injunction so made and rendered will be made permanent.'

Demurrer has been interposed to the petition.

Section 3 of Chapter 17894, Acts of 1937, provides:

'Section 3. Creation of Board.--There is hereby created a board to be known as the Florida Dry Cleaning and Laundry Board to consist of seven members to be appointed by the Governor and be subject to removal by him for cause as in the case of other appointive officers. Such board shall consist of three members chosen from those residents of this State exclusively engaged in the dry cleaning, dyeing and pressing industry, and...