State Ex Rel. Fronton Exhibition Co. v. Stein

• Decision Date: 11 October 1940
• Citation: 198 So. 82,144 Fla. 387
• Parties: STATE ex rel. FRONTON EXHIBITION CO. v. STEIN et al.
• Court: Florida Supreme Court

198 So. 82

144 Fla. 387

STATE ex rel. FRONTON EXHIBITION CO. v. STEIN et al.

Florida Supreme Court

October 11, 1940

Rehearing Denied Oct. 29, 1940.

En Banc.

Original mandamus proceeding by the State of Florida, on the relation of the Fronton Exhibition Company, against Joseph R. Stein and others, as and constituting the Florida State Racing Commission, and others, to require respondents to rescind resolution whereby they granted the application of the Florida Fronton Association for a permit to operate a Jai-a-Lai Fronton, and to revoke the permit delivered to the Florida Fronton Association. On respondents' motion to quash the rule nisi.

Motion denied and alternative writ issued.

COUNSEL

S. P. Robineau, W. G. Ward, and Carl T. Hoffman, all of Miami, and J. Lewis Hall, of Tallahassee, for relator.

H. P Baya, of Tampa, and Richard H. Hunt, of Miami, for respondents.

OPINION

BROWN Justice.

The State of Florida on the relation of Fronton Exhibition Co., a Florida corporation, relator, filed in this court, on August 25, 1940, its petition requesting the court to issue its alternative writ of mandamus, directed to the respondents, who constitute the Florida State Racing Commission, together with the Secretary of said Commission requiring them to meet forthwith and rescind the resolution heretofore adopted by said Commission on August 14, 1940 whereby they granted the application of Florida Fronton Association for a permit, and to revoke the permit delivered by them to said association on August 21, 1940, in order that the relator licensee might profitably enjoy the benefit of its permit without unwarranted and illegal competition; or to show cause before this court on a day and at a time to be fixed by the court why a peremptory writ of mandamus should not be issued as requested by the relator. An order to show cause was duly entered by this court on August 26th and the respondents on September 2, 1940, filed a motion to quash the rule nisi based upon several grounds, the substance of which are that the petition, considered in connection with exhibits thereto attached, show that the respondent commission had performed its official functions in the premises as provided by law and that the showing made is insufficient in law to justify the issuance by this court of a writ of mandamus as prayed for by the relator.

While there are several important questions which have been presented to this court by counsel for the respective parties, both in their briefs and upon the oral argument which was recently had before this court, we deem it unnecessary to consider but one of the questions thus presented, which is determinative of this case. That question is, does the permit which was granted to the relator's competitor authorize the construction and operation of a Jai-a-Lai Fronton within one thousand feet of an existing public school?

Section 9 of Chapter 17074, of the Acts of 1935, referred to as the Jai-a-Lai Act, reads as follows:

'No permit shall be issued for the operation of any such fronton to be constructed or operated within one thousand (1000) feet of any existing church or public school, nor shall any such exhibition be held on Sunday.'

It is shown in this case that the permit granted by the respondents authorized the construction and operation of such fronton at a point less than one thousand feet from the grounds surrounding a public school, but slightly more than one thousand feet measured in a straight line from the public school building to the proposed location of the fronton building.

This elementary public school, located in the southern portion of Miami Beach, Florida, has grounds around the school building, enclosed by a wire fence, and the property on which said building and grounds were located is owned by the Dade County Board of Public Instruction. These grounds are apparently not as large as those recently recommended by the State Superintendent of Public Schools, because they comprise only about an acre and a half. In a bulletin issued by such officer, entitled 'Report of School Analysis and Plans for Improvement, 1940-1941', it is recommended, among other things, 'for attainment as quickly as local conditions permit,' that the play ground area should comprise, for schools of less than fifty pupils, three acres, and for schools of between fifty and ninety nine pupils, four acres, and for schools of from one hundred to two hundred and forty nine, five acres, and for schools of two hundred and fifty to four hundred and ninety nine, seven acres, etc. It is further recommended that at least five per cent of the amount of play area for each school shall be in the shade of trees and at least one-half the amount of area shall be clear and reasonably level and adequately maintained for open games.

In a bulletin or pamphlet issued by the State Department of Public Instruction, some five years earlier, on August 1, 1935, entitled 'Standards for Florida Elementary Schools,' on page 8, the following appears:

'Grounds and Their Equipment.

'1. Grounds attractive in appearance. Sodded grounds in front of the building, and shrubs, shade trees, and symmetrical walks are highly desirable.

'2. Adequate space for playground exclusive of lawns and gardens. It is recommended that 100 square feet of playground per child be provided.

'3. Neat waste paper receptacles provided and in constant use.

'4. A daily program of plays and games with the condition that:

'(a) Every teacher and every child must take some part in these plays and games as a regular part of his or her school work.

'(b) A written program covering these activities must be submitted to the State Department of Public Instruction for approval or disapproval along with the application for accreditation.

'(c) Necessary inexpensive physical education supplies such as balls, bats, nets, etc., be secured.

'5. If fences are provided, they must be attractive and in good repair.'

It appears that at the hearing before the State Racing Commission, the Commission adopted as a method or rule of measurement for determining whether or not the proposed fronton building would be within one thousand feet of the school that the distance should be measured on a straight air-line from the nearest point of the school building to the nearest point of the fronton building, or vice versa, and that, so measured, they found the distance to be well over the one thousand feet required by the statute; but it appears from the exhibits attached to the petition for the alternative writ that the distance in a straight line from the nearest point of the proposed fronton building to the school grounds is less than one thousand feet. Therefore the question might be narrowed to the question as to whether or not, under the statute, the measurement should be made from the proposed fronton building to the school building, or to the school grounds which surround the school building, and are located on the school property, and which are used in connection with the work of the school.

In support of their motion to quash, the respondents contend that they had the power to adopt the method of measurement which they applied in this case under and by virtue of the rule-making power vested in such commission by the Racing Commission Act of 1931, Chapter 14832, Section 2, and by the Jai-a-Lai Act of 1935, Chapter 17074, Section 3, paragraph 3. The language of the two acts is quite similar. Those portions of section 3 of Chapter 17074 which are applicable here read as follows:

'Section 3. It shall be the duty of the State Racing Commission to carry out the provisions of this Act, and to that end, such Commission shall have the power and authority to personally, or by agent, supervise and check the making of pari mutuel pools and wagers and the distribution therefrom, and * * *

'3. To make rules and regulations for the holding, conducting and operating of exhibitions of Jai-a-lai or Pelota, which rules and regulations shall be uniform in their application and effect, and the duty of exercising this control and power is hereby made mandatory upon such Commission.'

We have held that the State Racing Commission has, under Chapter 14832, wide discretion in the exercise of the authority expressly or impliedly conferred upon it by the legislature; State ex rel. Mason v. Rose, 122 Fla. 413, 165 So. 347; and in the case of State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21, 22, we held that 'The Legislature has vested the state racing commission with the power to make rules and regulations appropriate to the accomplishment of the purposes of the act.' Of course, we have never gone so far as to hold that the State Racing Commission can make any rule or regulation which violates the true intent and meaning of either of the statutes above referred to or of any other valid and enforceable statute which is applicable to the facts of any particular case.

So the question before us is primarily one of statutory construction. It is true that the statute does not prescribe how the one thousand feet mentioned in the statute shall be measured, but in the absence of anything in the statute to the contrary, we must hold that the legislative intent was that this distance of one thousand feet meant one thousand feet measured in a straight line. See Annotation in 96 A.L.R. p. 778, et seq.

The contention of the respondents is that in the absence of any specific legislative provision on the subject, it was left to the judgment and discretion of the Commission to determine the rule or method of measurement by which this disputed method with reference to the measurement of the distance should be determined. That had the legislature meant by this rule that no fronton site should be within...