State Ex Rel. Rembrandt Corporation v. Thomas

• Decision Date: 30 October 1934
• Citation: 157 So. 337,117 Fla. 127
• Parties: STATE ex rel. REMBRANDT CORPORATION v. THOMAS, Judge, et al. (two cases).
• Court: Florida Supreme Court

157 So. 337

117 Fla. 127

STATE ex rel. REMBRANDT CORPORATION v. THOMAS, Judge, et al. (two cases).

Florida Supreme Court

October 30, 1934

En Banc.

Two original proceedings for mandamus by the State, on the relation of the Rembrandt Corporation, against Elwyn Thomas as Judge of the Circuit Court of the Twenty-First Judicial Circuit of the State of Florida.

Returns held insufficient, and peremptory writ of mandamus awarded.

COUNSEL Robert R. Milam, of Jacksonville, for petitioner.

Cary D Landis, Atty. Gen., and H. E. Carter and J. V. Keen, Asst Attys. Gen., for respondent.

OPINION

DAVIS Chief Justice.

Judge Elwyn Thomas, respondent, refuses to proceed in two cases presented before him styled as Rembrandt Corporation v. City of Sarasota, and Rembrandt Corporation v. Charles G Stroheymer, as Tax Collector of Sarasota County. As a result these two original proceedings have been instituted in the Supreme Court praying that a peremptory writ of mandamus be awarded to compel respondent, as circuit judge, to assume and take jurisdiction of and proceed with the causes aforesaid pursuant to an executive order of the Governor made under chapter 16053, Acts 1933, Laws of Florida, and section 8 of article 5 of the state Constitution.

It appears by the record that the controversy arises as follows: Rembrandt Corporation sued in the circuit court of Sarasota county to enjoin the levy of back taxes on its property consisting of pictures and statuary in the Ringling Art Museum at Sarasota, Fla.

By the bills of complaint, one brought against the city of Sarasota and one brought against Sarasota county through its tax collector, it was alleged that the county tax assessor and the city tax assessor, acting in concert, have arbitrarily and unlawfully assessed and levied enormous tax levies against complainant's property for the years 1931, 1932, and 1933. The subject of the tax, being an art museum collection, was claimed by complainant to be exempt from taxation because held and used for educational purposes. But assuming that the property is not wholly exempt from taxation, the contention is also made in the alternative that the property is overassessed more than 3000 per cent. in comparison with other property of the same kind and character as customarily taxed by the city and county authorities.

Hon. Paul C. Albritton is the resident judge of the judicial circuit of this state wherein Sarasota is situated. He is therefore the duly qualified presiding circuit judge in and for Sarasota county. On June 23, 1934, the complainant filed a suggestion of Judge Albritton's disqualification to act in the aforesaid pending tax cases. The suggestion filed was in substance as follows: That the said Paul C. Albritton, judge of the Twenty-Seventh judicial circuit, was interested in the actual result of said suits and was disqualified to act as chancellor therein; that the disqualifying interest of said judge arises out of the following matters, that is to say, that the object of the suits being to have declared invalid tax assessments that had been made in large amounts against the property of complainant for the years 1930 to 1933, inclusive, in the county of said judge's residence, the effect of any decree adverse to complainant in the cause would be to materially lessen the taxes on the property of said judge who is alleged and shown to be the owner of a large amount of taxable property situate in Sarasota county and in the city of Sarasota.

Pursuant to the suggestion of disqualification so made, Judge Albritton entered the following order certifying his disqualification:

'Certificate and Order of Disqualification.

'This Cause coming on this day to be heard upon the suggestion and supplemental suggestions of the plaintiff as to the disqualification of the undersigned to sit as Judge in said cause and the matter after due notice having been submitted to the Court, and upon consideration thereof,

'It is ordered, adjudged and decreed as follows:

'1. That the suggestions of the plaintiff are true.

'2. That the undersigned is disqualified by virtue of being a taxpayer in the City, County and School District in and throughout each of the years 1930 to 1934 inclusive.

'3. That the undersigned is disqualified to sit as Judge in this cause and so certifies.

'Done and ordered in Chambers at Sarasota, Florida, this 18th day of July A. D. 1934.

'[Signed] Paul C. Albritton

'Judge of said Court.'

Whereupon the Governor of the State of Florida, acting under and by virtue of chapter 16053, Acts 1933, and section 8, article 5 of the state Constitution, designated the respondent herein, Honorable Elwyn Thomas, judge of the Twenty-First judicial circuit, to act for and instead of Judge Albritton. The Governor's executive order was as follows:

'It appearing from a copy of the order of disqualification of the Honorable Paul C. Albritton, Judge of the aforesaid Court, to exercise jurisdiction of said cause, a copy of which order has been mailed to the Governor of the State of Florida, that said Judge is disqualified to hear and determine said cause, I David Sholtz, as Governor of the State of Florida, by virtue of the power vested in me, do hereby designate the Honorable Elwyn Thomas Judge of the Twenty First Judicial Circuit of the State of Florida, to hear and determine the above entitled cause.

'In testimony whereof, I have hereunto set my hand and caused the Great Seal of the State of Florida to be affixed at Tallahassee, the Capital, this 7th day of August, A. D. 1934.

'[Signed] David Sholtz, Governor.'

As ground for his refusal to act pursuant to the designation of the Governor based upon Judge Albritton's order certifying to the resident judge's disqualification, Judge Thomas, the respondent herein, returns as follows:

'That he declines to assume jurisdiction * * * solely for the reason that in his opinion it is not shown that the Judge of the Circuit Court for Sarasota County is disqualified, in view of a provision of Section 4153 of the Compiled General Laws of Florida (1927).'

Section 3 of chapter 16053, Acts 1933, section 4155(2), Comp. Gen. Laws 1934 Supplement, is as follows:

'Section 3. Suggestion of Disqualification: Grounds: Proceedings on Suggestion and Effect: In any cause in any of the courts of this State any party to said cause, or any person or corporation interested in the subject matter of such litigation, may at any time before final judgment, if the case be one at law, and at any time before final decree, if the case be one in chancery, show by a suggestion filed in the cause that the judge before whom the cause is pending, or some person related to said judge by consanguinity or affinity within the third degree is a party thereto, or is interested in the result thereof, or that said judge is related to an attorney or counsellor of record in said cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to said cause. Such suggestion shall be filed in the cause within thirty (30) days after the party filing the suggestion, or his attorney, or attorneys, of record, or either of them, learned of such disqualification, otherwise the ground, or grounds of disqualification shall be taken and considered as waived. If the truth of any suggestion appear from the record in said cause, the said judge shall forthwith enter an order reciting the filing of the suggestion, the grounds of his disqualification, and declaring himself...