Stocks v. Lee

• Citation: 144 Fla. 627,198 So. 211
• Parties: STOCKS v. LEE, City Manager of City of Miami, et al.
• Decision Date: 25 October 1940
• Court: United States State Supreme Court of Florida

198 So. 211

144 Fla. 627

STOCKS v. LEE, City Manager of City of Miami, et al.

Florida Supreme Court, Division A.

October 25, 1940

Suit by G. L. Stocks against L. L. Lee, as City Manager of the City of Miami, Fla., and others to enjoin defendants from enforcing against plaintiff the ordinance of the City of Miami prohibiting conduct of business or trade on Sunday excepting work done of necessity and the printing publication, and circulation of newspapers. From a decree dismissing amended bill of complaint, the plaintiff appeals.

Affirmed. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

William J. Pruitt, of Miami, for appellant.

Lewis Twyman and J. W. Watson, Jr., both of Miami for appellees.

OPINION

BUFORD Justice.

The appeal brings for review order dismissing amended bill of complaint.

The bill of complaint in effect alleged that by ordinance the City of Miami prohibited the conduct of business or trade on Sunday either by manual labor, with animal or mechanical power, excepting therefrom work done of necessity and also excepting the printing, publication and circulation of newspapers, and that it was the purpose of the city officials to arrest and prosecute the plaintiff for violating the ordinance.

Plaintiff does not attack the validity of the order but claims the right to injunction upon the theory that while his business and operation comes within the purview of the ordinance there are other classes of business which comes within the purview of the ordinances as to which other businesses it is not the purpose of the City Commission to interfere with the operation on Sunday.

In other words, the plaintiff claims the right to injunction on behalf of himself and others engaged in the same business in which he is engaged unless and until the ordinance is enforced as against all others who come within the purview of the ordinance.

The ordinance is known as Ordinance No. 319 of the City of Miami. It has been before this court and held valid in the case of Orr v. Quigg, 135 Fla. 653, 185 So. 726, 729.

It appears to be well settled that injunction will not lie to prohibit the enforcement of a city ordinance where a remedy exists at law. See Egan v. City of Miami, 130 Fla 465, 178 So. 132; Town of Orange City v. Thayer, 45 Fla. 502, 34 So. 573; Rawls v. City of Miami, 82 Fla. 65, 89 So. 351.

It is also recognized as a generally established principle of law that the acquiescence of the municipal authorities in the violation of an ordinance or regulation is no defense. In other words, that the failure of the authorities to enforce the ordinance against others constitutes no defense in favor of one who is prosecuted under such ordinance. City of Sylvania v. Hilton, 123 Ga. 754, 51 S.E. 744, 2 L.R.A., N.S., 483, 107 Am.St.Rep. 162; People v. Gardner, 143 Mich. 104, 106 N.W. 541; People v. Baker, 115 Mich. 199, 73 N.W. 115; State v. Sugarman, 126 Minn. 477, 148 N.W. 466, 52 L.R.A.,N.S., 999; City of Centralia v. Smith, 103 Mo.App. 438, 77 S.W. 488; Village of Port Jervis v. Close, 53 Hun 634, 6 N.Y.S. 211, 2 Silvernail 501; Chimine v. Baker, 32 Tex.Civ.App. 520, 75 S.W. 330; Charleston v. Reed, 27 W.Va. 681, 55 Am.Rep. 336.

Injunction will not lie to enjoin a criminal prosecution. Merry-Go-Round, Inc. v. State ex rel. Jones, ...