State ex rel. Kay v. City of Miami

• Decision Date: 11 October 1946
• Citation: 158 Fla. 26,27 So.2d 413
• Parties: STATE ox rel. KAY v. CITY OF MIAMI et al.
• Court: Florida Supreme Court

27 So.2d 413

158 Fla. 26

STATE ox rel. KAY v. CITY OF MIAMI et al.

Florida Supreme Court

October 11, 1946

Rehearing Denied Oct. 25, 1946.

Appeal from Circuit Courty, Dade County; Marshall C. wiseheart, judge.

William L. Pallot, G. A. Worley, and Jack Kehoe, all of Miami, for appellant.

J. W. Watson, Jr., and Franklin Parson, both of Miami, for appellees.

BUFORD, Justice.

Appeal is from order and judgment granting motion to quash and dismissing alternative writ of mandamus.

The appellant sought to have a license authorizing him to engage in the business of a liquor dealer, selling at retail in package only and not to be consumed on the premises, at No. 16 Northwest 17th avenue in Miami, Florida, so transferred as to permit him to conduct such business at a new location, viz. No. 1667-69 West Flagler Street.

It is alleged that the city refused to issue the permit for transfer upon the ground that Ordinance No. 2896 of the City of Miami did prohibit the issuance to the relator of a license because the location to which relator wishes to transfer his business is less than 2,500 feet from an existing licensee.

Appellant contends that the Ordinance No. 2896 has no application to one in his status.

The Circuit Court held contrary to appellant's contention and made its order accordingly. Appellant appealed.

The ordinance which appellant attacks as not being applicable to appellant's status in not made a part of the record and is not before us for construction. We cannot take judicial cognizance of a municipal ordinance. See Stephens v. Anderson, 75 Fla. 575, 79 So. 205, and cases there cited.

Therefore, the judgment of the Circuit Court must be affirmed. See Alper v. Tomlinson, Fla., 26 So.2d 338.

Without the ordinance being pleaded in the court below no clear legal right to the relief prayed could be shown, and showing of clear legal right to the relief is essential to entitle one to prevail in mandamus. See State ex rel. Palmer v. Gray, 92 Fla. 1123, 111 So. 242; City of Bradenton v. Perry, 118 Fla. 838, 160 So. 506, 100 A.L.R. 400; Norris et al. v. Chancey et al., 129 Fla. 194, 176 So. 78, 113 A.L.R. 576.

So the order appealed from must be affirmed and it is so ordered.

Affirmed.

CHAPMAN, C. J., and TERRELL and ADAMS, JJ., concur.