State Ex Rel. West Flagler Amusement Co., Inc. v. Rose

• Decision Date: 13 December 1935
• Citation: 122 Fla. 227,165 So. 60
• Parties: STATE ex rel. WEST FLAGLER AMUSEMENT CO., Inc. v. ROSE et al.
• Court: Florida Supreme Court

165 So. 60

122 Fla. 227

STATE ex rel. WEST FLAGLER AMUSEMENT CO., Inc. v. ROSE et al.

Florida Supreme Court

December 13, 1935

En Banc.

Original mandamus proceeding by the State, on the relation of the West Flagler Amusement Company, Inc., against Carl G. Rose and others, as and constituting the State Racing Commission, and others.

Alternative writ of mandamus quashed as to respondents Biscayne Kennel Club, Inc., and Miami Beach Kennel Club, Inc., and motion for peremptory writ granted as against the State Racing Commission.

See also, West Flagler Amusement Co. v. State Racing Com'n., 165 So. 64.

COUNSEL

Loftin, Stokes & Calkins, for relator.

T. G Futch, Bussy, Mann & Barton, Carl T. Hoffman and L. L Robinson, for respondents.

OPINION

DAVIS Justice.

This is a mandamus proceeding brought to coerce the respondents, as members of the state racing commission, to forthwith proceed, in the performance of their legal duty, to convene as the said state racing commission and rescind certain actions taken by them on October 22, 1935, whereby they, as commissioners, assumed to fix and set the permissible dates for dog racing in Dade county, Fla., during the period beginning December 2, 1935, and ending April 10, 1936, in a manner alleged in the alternative writ not to be in conformity with the express requirements of paragraph (1) of section 2 of chapter 17276, Acts 1935, which is amendatory of section 2 of chapter 14832, Acts 1931, with respect to dates for racing allowable under permits or licenses granted by the state racing commission pursuant to law.

The facts leading up to this controversy are shown to be as follows:

There are three greyhound racing tracks located in Dade county, Fla. One of the tracks is operated by the petitioner, West Flagler Amusement Company, Inc., another track is operated by the respondent Biscayne Kennel Club, Inc., and, thirdly, the track operated by the respondent Miami Beach Kennel Club, Inc. The track of the petitioner is located on the west side of Northwest Thirty-Seventh avenue near Flagler street, just outside the corporate limits of the city of Miami, and is situated near Flagler street, which is a main thoroughfare of Miami and Dade county. The track of the respondent Biscayne Kennel Club, Inc., is located at Northeast Second avenue and 115th street in the town or village of Miami Shores, while the track of the respondent Miami Beach Kennel Club, Inc., is located across Biscayne Bay from Miami at the extreme south end of the city of Miami Beach. Each of the tracks filed with the state racing commission their respective applications for licenses and racing dates for the winter racing season beginning December 2, 1935, and ending April 10, 1936. The state racing commission allotted to the tracks the following racing dates and days:

Number

of

Name Dates Days:

(Sunday

excluded)

(a) Biscayne

Kennel Club, Inc. December 3, 1935,

to

February 15, 1935 66.

(b) Miami Beach

Kennel Club,

Inc. January 1, 1936,

to

April 10, 1936 87.

(c) West Flagler

Amusement

Co Inc. February 3, 1936,

to

April 10, 1936 59.

The petitioner, West Flagler Amusement Company, Inc., feeling itself aggrieved because the commission allotted it a lesser number of permissible racing days than the tracks operated by the respondents Biscayne Kennel Club, Inc., and Miami Beach Kennel Club, Inc., thereupon filed this proceeding in mandamus seeking a judicial avoidance by this court of what the state racing commission has done, alleging in its pleadings as a basis therefor that the commission's authority in the premises has been grossly and flagrantly abused and has resulted in an unlawful and preferential discrimination in favor of Miami Beach Kennel Club, Inc., to the prejudice of relator as its chief competitor in the Dade county dog racing area.

The power of the state racing commission to fix racing dates is vested in the commission by paragraph 1 of section 2 of chapter 17276, Acts 1935, Laws of Florida, which statute provides that the state racing commission shall have the authority:

'To fix and set the dates for racing in any county where there are * * * one or more dog tracks seeking to race and holding ratified permits upon which any track can operate in any county apportioning such dates to the several tracks in such counties in a fair and impartial manner. Provided, however, that where only one licensed dog tract is located in a county, such track shall be entitled to operate ninety (90) days, during the racing season at option of said dog track.'

The official order of the state racing commission acting under said paragraph 1 of section 2 of said chapter 17276, Acts 1935, supra, being quasi legislative in quality, and involving no exercise of judgment having a judicial attribute, is reviewable on mandamus against the board to compel it to rescind whatever it may have done under the guise of the authority vested in it should it be made to appear that its official action in the premises was arbitrarily or clearly erroneously exercised, or a discretion given it by law palpably abused. This is so because the imposition of a clear, mandatory, legal duty to perform an official act only under particular circumstances implies an equally clear, mandatory legal duty to rescind on demand any attempted official action done otherwise than in conformity to the essential requirements of the law as laid down in the statute under which the legal duty is derived. So mandamus to judicially enforce the last-mentioned clear legal duty to recall and rescind any arbitrary or unlawful official action taken on the part of the state racing commission in the attempted exercise of its administrative quasi legislative (or quasi executive) powers, is the appropriate remedy where no special statutory method of redress is otherwise available. See State ex rel. Pinellas Kennel Club, Inc., v. State Racing Commission, 116 Fla. 143, 156 So. 317.

The 'racing season' or that period of time within which racing can only be conducted is prescribed by section 4 of chapter 17276, Laws of Florida, Acts of 1935, supra. The pertinent part of section 4 applicable to dog tracks provides:

'Hereafter dog race track meetings shall be held only during the period extending from and including the 1st day of December in each year to and including the 10th day of April the following year; Provided, that * * * dog race meetings shall be limited as to number of racing days as provided in Section 8 of Chapter 14832, Laws of Florida, Acts of 1931.'

Section 8 of chapter 14832, Acts of 1931, fixes the number of days within which dog racing shall be conducted by each and every race track. The pertinent part of that section here applicable provides:

'No license or licenses shall be granted to any person, association or corporation or to any race track for a meet or meeting in any county to extend longer than * * * ninety racing days for dog racing in any twelve month period.'

The power and authority of the commission to fix the number of days during which racing may be conducted by each permit holder is embraced within section 7, chapter 17276, Acts of 1935, supra. That part of the section here applicable provides:

'After a permit has been granted by the Commission, and after the same has been ratified and approved by the majority of the electors participating in such election of the County designated therein, the Racing Commission shall have the power and it shall be its duty to grant to the lawful holder of such permit, subject to the conditions hereof, a license to conduct racing under this Act, and to fix annually the time, place and number of days during...