State ex rel. Kersey v. Jinkins

• Decision Date: 18 December 1942
• Citation: 10 So.2d 914,152 Fla. 113
• Parties: STATE ex rel. KERSEY v. JINKINS et al.
• Court: Florida Supreme Court

10 So.2d 914

152 Fla. 113

STATE ex rel. KERSEY v. JINKINS et al.

Florida Supreme Court

December 18, 1942

Appeal from Circuit Court, Seminole County; M. B. Smith judge.

Garland W Spencer, of Sanford, for appellant.

John D Jinkins, in pro. and R. W. Ware, of Sanford, for appellees.

BUFORD, Justice.

On October 9, 1942 appellant filed his petition in the Circuit Court of the Ninth Judicial Circuit in and for Seminole County, Florida which was a wet county, against Jinkins and Ware as tax collector and county judge, respectively, of Seminole County Florida, seeking to coerce the issuance by the respondents of a state and county license to sell beverages containing alcohol of more than 1% per weight and not more than 14% by weight and wines regardless of alcoholic contents, in the Town of Oviedo, Florida, in Seminole County.

Petitioner alleged that for two years last past he had held a license as a dealer in beverages in the class applied for and alleged that the tax collector and county judge had declined to issue a license for the license year beginning October 1, 1942, in a letter as follows:

'Sanford, Florida

'October 7, 1942.

'Mr. Garland W. Spencer,

'Attorney At Law,

'Sanford, Florida.

'Dear Sir:

'Referring to application of Mr. Dennit K. Kersey for a State and County license to sell wines of any alcoholic content and malt and spirituous beverages containing not more than 14% of alcohol by weight in the Town of Oviedo, in Seminole County, Florida. Said application was filed with the Tax Collector and $30.25 in currency tendered for the payment of such a license, which was not accepted.

'We decline to issue the license for the reason that Mr. Kersey did not present to us a license from the Town of Oviedo, an incorporated town, incorporated under the laws of the State of Florida.'

Petition further alleged that there was no valid ordinance adopted by the Town of Oviedo requiring him to pay a license tax for engaging in the business for which he desired a state and county license.

The record shows that the Town of Oviedo is an incorporated town and that an ordinance, either valid or invalid, exists wherein it is provided for the payment of license taxes by persons engaged in the sale of alcoholic beverages in such municipality, which ordinance provides a tax to be paid, 'For vendors who may sell only beverages containing alcohol of more than one per centum by weight and not more than fourteen per centum by weight, and wines regardless of alcoholic content . . . $15.00.'

Chapter 561, Fla. Statutes of 1941, provides for license fees to be paid by vendors of alcoholic liquors and subsection II of Section 561.34, Fla. Statutes 1941, provides: '(2) Vendors who may sell only beverages containing alcohol of more than one per cent by weight and not more than fourteen per cent by weight, and wines regardless of alcoholic content, in counties where the sale of intoxicating liquors, wines and beers is permitted, fifteen dollars.'

Section 561.36, Fla. Statutes 1941, empowers cities and towns to collect not exceeding 50% of the amount of the state and county license tax which when paid to the city or town is required to be deducted from the amount of the state and county license tax. This section also contemplates that the state and county license shall be issued to the applicant upon his exhibiting to the County Tax Collector a receipt for the payment of such city or town license tax.

The petitioner alleged in his petition that the ordinance adopted by the Town of Oviedo was null and void.

The respondents moved to quash the alternative writ of mandamus wherein, inter alia, it was alleged:

'1. It appears by the petition in this cause that the town of Oviedo has substantial rights in this cause, are not before this Court and have not been joined as parties herein.

'2. Mandamus cannot be made an instrument for giving a Court jurisdiction of litigation on collateral matters in an irregular way.

'3. Petition shows on its face that there is an ordinance in the ...