Winter v. Mack

• Decision Date: 23 February 1940
• Citation: 142 Fla. 1,194 So. 225
• Parties: WINTER v. MACK.
• Court: Florida Supreme Court

194 So. 225

142 Fla. 1

WINTER v. MACK.

Florida Supreme Court

February 23, 1940

En Banc.

Certiorari to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.

Action by Paul Mack to restrain Henry C. Winter from levying harbormaster fees against a vessel owned the plaintiff. From an order overruling and denying a motion to dismiss bill of complaint, Henry C. Winter brings certiorari.

Reversed.

BROWN and THOMAS, JJ., dissenting.

COUNSEL

Elmore Cohen, of West Palm Beach, for petitioner.

Coe &amp Rankin, of Palm Beach, for respondent.

OPINION

CHAPMAN Justice.

On petition for writ of certiorari it is contended in this Court that the Circuit Court of Palm Beach County erred in entering an order overruling and denying a motion to dismiss a bill of complain on the ground that the same was without equity. The lower court by appropriate order restrained Henry C. Winter as Harbormaster for the port of Palm Beach from levying and collecting fees against the motor vessel 'Paddie Halferty', and this order likewise is assigned as error.

Paragraph IV of the bill of complaint is, viz.:

'That the defendant, Henry C. Winter, has performed no services whatsoever for your complainant or his motor vessel 'Paddie Halferty': that the defendant is levying the aforementioned fee against your complainant and his motor vessel 'Paddie Halferty' on the ground that he is Harbormaster for the Port of Palm Beach in Palm Beach County, Florida, whereas, actually in fact, no such office exists as that of Harbormaster for the Port of Palm Beach in Palm Beach County, Florida; that the only valid statute creating the office of Harbormaster for the various ports of the State of Florida is Section 3907 of the Compiled General Laws of Florida, and provides as follows:

"The Governor shall appoint, by and with the advice and consent of the Senate, one Harbormaster for each port in the State of Florida, into which have come, during the past five years, vessels of five hundred tons burden and upwards, at the average rate of not less than two hundred and fifty vessels per year, according to the records of the United States customs house at or nearest the port for which such appointment shall be made.'

'Your complainant further shows into the court that the records of the United States Customs office at West Palm Beach, Florida, said office being the nearest customs office to the said Port of Palm Beach, show that during the past five years vessels of 500 tons burden and upwards have come into the Port of Palm Beach at an average rate of far less than 250 vessels per year, and that therefore the office of Harbormaster for the Port of Palm Beach in Palm Beach County, Florida, does not exist by virtue of the aforementioned statute.

'Your complainant further shows unto the court that the fee which is being levied against him and against his motor vessel is an illegal fee and that unless the defendant is restrained from levying such fee and submitting his bill for said fee to the Customs Officials at the said Port of Palm Beach that your complainant will not be allowed clearance on said motor vessel without paying said illegal fee; that should such clearance be withheld your complainant's motor vessel must remain within the Port of Palm Beach and your complainant will suffer irreparable injury in that the perishable commodities now stored as cargo upon the said motor vessel will be deteriorated, damaged and destroyed, and in that his employees awaiting the arrival of his said vessel will suffer from lack of food and supplies.'

The prayer of the bill is, viz., that the Harbormaster be perpetually restrained from levying harbormaster fees against the vessel 'Paddie Halferty' as Harbormaster of the Port of Palm Beach and from interfering with said vessel when entering or leaving the Port of Palm Beach.

Section 3902, C.G.L., provides that the Governor shall appoint by and with the consent of the Senate, all Harbormasters required by the several ports of Florida, and they shall hold office for a period of two years. Section 3905, C.G.L., makes it the duty of the master of any vessel arriving at a port in Florida to report to the Harbormaster for a section or a berth at the wharves; and that the Harbormaster shall be present at all times and to facilitate vessels in discharging and receiving their cargoes. Section 3906, C.G.L., fixes the compensation of Harbormasters at a sum not to exceed the sum of twenty dollars for each vessel, according to the amount and value of the services rendered, and said amount shall be paid to the Harbormaster by the master, owner or consignee of vessels coming into said port.

Section 3907, C.G.L., makes it the duty of the Governor of Florida to appoint, by and with the consent of the Senate, one Harbormaster for each port in Florida in which has come during the previous five years vessels of 500 tons burden and upwards, at the average rate of not less than 250 vessels per year, according to the records of the United States Customs house at or nearest the port for which such appointment shall be made.

It will be observed that Section 3902 to 3906, C.G.L., provide for the appointment of Harbormasters for the several ports of Florida; require the giving of a bond; authorize the appointment of deputies; prescribe the duties of the Harbormaster and deputies, and fix the compensation for such services. Section 3907, supra, provides for the appointment of Harbormasters for each port in the State of Florida in which come on an average of not less than 250 vessels annually during the five year period previous to the date of appointment and these vessels are required to be each of 500 tons burden and upwards. These requirements are to be determined prior to the appointment by the Governor and Senate from the records of the United States Customs house nearest to the port for which appointment shall be made. Other duties of harbormasters are prescribed by Section 3908 to 3916, C.G.L., for certain specified ports provided for by Section 3907 and clearly distinguish the duties of a harbormaster from those provided for by Section 3902, supra. In the case of State ex rel. Attorney General v. Burns, 38 Fla. 367, 21 So. 290, this Court held that the position of harbormaster was an office and should be filled by appointment by the Governor and confirmed by the Senate.

The lower court was of the opinion that the Governor of Florida was authorized to appoint harbormasters for ports of Florida into which have come, during the past five years, at least 250 vessels, each of 500 tons burden or more, and the bill of complaint alleged that the records of the United States Customs office at West Palm Beach shows that during the past five years vessels of 500 tons burden and more have come into the port of Palm Beach at an average rate of far less than 250 vessels per year and for this reason the port of Palm Beach in Palm Beach County, does not exist by virtue of the statute, and therefore the office of harbormaster for the port of Palm Beach does not exist and the fees levied on the vessel 'Paddy Halferty' are illegal ab initio and the bill of complainant seeking a perpetual injunction against the collection thereof contained equity. The bill of complaint alleges that Henry C. Winter claimed that he was the duly appointed, confirmed and qualified harbormaster of the Port of Palm Beach when he levied the fees on the vessel 'Paddy Halferty', and the amount of the fees is not challenged.

The legal effect of the ruling of the lower court in overruling the motion to dismiss the bill of complaint and denying the motion to dissolve the temporary restraining order was to hold that the office of harbormaster of the Port of Palm Beach did not exist, although the defendant below held the office and was discharging its duties when restrained.

The question for decision here is whether the legal existence of an office can be determined in an equity proceeding, as was undertaken in the lower court, or whether it should be settled in a quo warranto proceeding. It is largely a question of procedure.

In the case of City of Sanford v. State ex rel. Preston, 73 Fla. 69, 75 So. 619, a mandamus suit was instituted to require the respondent to return to the relator all the books, records, papers, money, iron safe, and other thinks belonging to the said office of Treasurer and Assessor, and restore to the relator the rights, privileges, duties and emoluments thereof. This Court held that quo warranto and not mandamus was the proper remedy to settle the title to said office, and said:

'It is well settled, both in England and America, that 'When an office is already filled by an actual incumbent exercising the functions of the office de facto and under color of right, mandamus will not lie to compel the admission of another claimant, or to determine the disputed question of title. In all such cases the party aggrieved, who seeks an adjudication upon his alleged title and right of possession to the office, will be left to assert his rights by the aid of an information in the nature of a quo warranto, which is the only efficacious and specific remedy to determine...