42 So. 2d 87 | Fla. | 1949
Lead Opinion
Bill by Phillip Bourquardez, as receiver of Six Mile Creek Kennel Club, against the Florida State Racing Commission and others, for declaratory decree as to his right to a license to operate a dog track. From an adverse decree, defendants appeal.
Affirmed. The appellee filed a bill for declaratory decree, praying that the court determine his right, as receiver of Six Mile Creek Kennel Club, to a license to operate a dog track under a permit originally issued to the club in 1931, and, incidentally, to decide what personal responsibility he would undergo in the operation.
From the entire record in the case we find that after the operation of the dog track was ratified by the voters, racing was conducted on the property from December 7, 1932 for twelve days, and then discontinued. The following month a suit was instituted against the corporation, and it was in this litigation that the appellee was appointed receiver. Immediately afterward he was authorized to resume the racing, but evidently before he undertook to do so the permit was revoked, and in the litigation which followed, this order of revocation by the commission was quashed. Six Mile Creek Kennel Club v. State Racing Commission,
These, in substance, are the allegations of the bill.
It appears from the testimony in the case that the enterprise is presently moribund. From the statement given by the appellee himself it seems that nothing whatever has been done toward holding racing meets on the land since 1935. At that time he sent a telegram to the Racing Commission to have dates for races assigned, and this application was not considered because he did not file "an application for license" and tender a bond. It appears further from his testimony that long ago the equipment was sold and the buildings razed, while another witness, introduced by the appellee, testified that there was no racing plant there now and no evidence that a race track was at one time located on the property except that one familiar with the premises at the time could see a trace of the outlines of the circular track.
There is more to the facts than we have related, but this seems sufficient to decide the point of law involved which the circuit judge thought determined the controversy — that is, whether Section 6 of Chapter 17276, Laws of 1935, providing "that all permits and licenses heretofore issued by said Commission to * * * corporations, prior to January 1st, 1935, which shall not conduct a racing meet within twelve months from the passage of this Act under and by virtue of said permits and licenses be and the same shall be cancelled and annulled" is self-executing. F.S.A. § 550.06. It was the opinion of the veteran chancellor in this case that when this section was read with the two sections immediately preceding it, it was clear that affirmative action by the Racing Commission was necessary to effectuate a forfeiture of the permit and that since no such action had been taken, the permit was still an asset in the hands of the receiver, who was therefore authorized to apply to the Racing Commission for their consent and approval to transfer it.
It is necessary now to give the two preceding sections to which the circuit judge referred. As a preface we should say that when an application for a permit to conduct races is issued it becomes effectual only when ratified by a majority of the voters participating in an election in the county where the racing is to take place. In Section 6 it is provided that the holder of a permit shall have the right to have submitted to the electorate the question whether racing under it shall be approved, and the manner of holding the election upon the application of the permittee is specified. Then there appear the provisos: first, that where the holder makes no such application to the Board of County Commissioners within six months, the permit shall become invalid and "the Commission is hereby authorized to cancel such permit without notice to the holder thereof"; second, that where the holder fails to construct a suitable track within twelve months after the ratification, the permit shall likewise be invalid and "the Commission is hereby authorized to cancel such permit without notice to the holder thereof"; third, the proviso already quoted, that permits issued prior to 1 January 1935 held by persons who have not conducted a racing meet within twelve months of the passage of the act shall be "cancelled and annulled."
Of course the difference is that in the first two provisos specific authority is granted the commission to cancel a permit declared "null and void," while in the last section there is no reference to authorization to cancel the permit nor a declaration that it shall be null and void, but simply that the permit shall be "cancelled and annulled."
The legislature is presumed to know the meaning of words and the rules of grammar, and the only way the court is advised of what the legislature intends is by giving the generally accepted construction, not only to the phraseology of an act but to the manner in which it is punctuated. *89
State ex rel. Hanbury v. Tunnicliffe,
The language employed was unfortunate, as is evidenced by the litigation that has grown from it, and we are unable to comprehend why there was a distinction between the phraseology used in the first two provisos and that used in the third.
Disregarding for the moment the express grant of authority in the first two provisos to cancel permits in certain instances, it is clear that the legislature in those provisos used adjectives to fix the status of those permits as invalid and worthless, while in the third the legislature simply commanded that a permit issued before a certain date and remaining dormant for twelve months after the passage of the act should be cancelled and annulled; and in the use of those transitive verbs it must have been contemplated that some affirmative action should be taken by the racing authority to render the permit useless.
We are at a loss to understand why, in the first two instances, the commission was granted authority to cancel a worthless and invalid permit, but at the worst it could be only surplusage. The verbs employed in the third proviso, when given their proper meaning, convey to us the idea that affirmative action was ordered taken upon the happening of a certain event.
The question is one of grammar more than of law, and we are impelled to the conclusion that the decree should be —
Affirmed.
ADAMS, C.J., and TERRELL, CHAPMAN and SEBRING, JJ., concur.
BARNS and HOBSON, JJ., dissent.
Concurrence Opinion
I concur in the opinion prepared by Mr. Justice Barns and agree that the quoted provision of Section 6, Chapter 17276, Laws of 1935, is self-executing. *90
I lay no claim to being a grammarian, nor have I been accused of possessing the tendencies or qualifications of a philologist. However, my recollection of the smattering of rules of grammatical construction which I absorbed in the yesteryears dictates a different conclusion from the one reached by some of my esteemed associates concerning the proper interpretation to be given the language of Section 6, Chapter 17276, Laws of Florida, 1935.
It is my view that the majority opinion fails to give due consideration to the verbiage "* * * said permits and licensesbe and the same shall be cancelled and annulled." (Italics supplied.) The intransitive verb "be" in the sense in which it is used is in the indicative present tense, third person plural. This form of said verb is no longer commonly used but it has been retained and is frequently found in legislative enactments as well as in orders, judgments and decrees of courts of law and equity. It means that such licenses and permits are hereby, now, presently, canceled and annulled and that such action shall become conclusively effective upon a condition subsequent, i.e. the event of non-operation for a period of twelve months from the passage of said act. In other words, the language "and the same shall be cancelled and annulled" means that such cancellation already legislatively declared shall become operative by application of the act itself when any holder of a permit or license "shall not conduct a racing meet within twelve months from the passage" of said law. It does not mean that such license or permit shall be cancelled and annulled or revoked by order of the Commission as is expressly provided in preceding sections. The use of the conjunctive (and) rather than the disjunctive (or) is likewise significant.
The question presented in and by this appeal does not turn entirely upon the grammatical construction of the substantive defective verb "be" and the admittedly future tense phrase formed by its conjunction with the verb "shall". The primary question involved as to whether Section 6, supra, is self-executing hinges likewise upon a well recognized principle of legal construction. The principle of which I speak is one to the effect that when in an act of the Legislature express direction is given or authority is delegated to any agency in one or more sections of such enactment to do specific acts under certain conditions, the failure to include such direction or authority in another section which deals with the same or a similar subject is the equivalent of a direct exercise — not a delegation of — such power or authority.
The deliberate inclusion of direction or authority in some sections of an act and the equally deliberate exclusion thereof from another does not permit the presumption that the legislature intended to do that which it obviously refrained from doing. On the contrary, the presumption is, and should be, that it meant what it said and that its action (in omitting a delegation of power and directly exercising said power) was intentional — not fortuitous. It was held in the case of Solomon Wine v. Com. of Massachusetts,
"Where language is used in one section different from that employed in other sections of the same chapter * * * it is to be presumed that the language is used with a different intent."
In 50 Am.Jur., Sec. 274, page 262, will be found the following:
"The use by the legislature of certain language in one instance and wholly different language in the other indicates that different results were intended and the courts have so presumed. Under this rule, where language is used in one section of the statute different from that used in other sections of the same chapter it is to be presumed that the language is used with a different intent. Accordingly, the presence of a provision in one section of a statute and its absence from another are an argument against reading it as implied by the section from which it is omitted." See also Atchison, Topeka Santa Fe R R. Co. v. United States,
It is my considered opinion that it makes little practical difference what our conclusion may be in the instant case for if Section 6 of Chapter 17276, Laws of Florida, 1935, is not self-executing then it certainly prescribed a continuing duty upon the Florida Racing Commission to cancel and annul licenses and permits which were issued prior to January 1, 1935, and under which no racing meets were held during the twelve months period succeeding the passage of said Section 6. This duty would still subsist and the only defense to its performance would be a showing as a matter of fact that at least one racing meet was held within the twelve months period following the passage of said provision.
BARNS, J., concurs.
Dissenting Opinion
Some of the observations of the Chancellor in his final decree were as follows:
"This matter coming on to be heard upon final hearing and the Court having heard arguments of counsel and considered the record in this cause finds and is of the opinion that the real crux of the case depends upon whether that part of Section 6, Chapter 17276, Laws of 1935, reading:
"`Provided further that all permits and licenses heretofore issued by said Commission to persons, associations or corporations, prior to January 1st, 1935, which shall not conduct a racing meet within twelve months from the passage of this Act under and by virtue of said permits and licenses be and the same shall be cancelled and annulled.' is self-executing or that action of the Commission was necessary to make the forefeiture of the permit effective. In view of the provisions of this portion of that section and those preceding it, all dealing with forfeiture or termination of permits, it would seem clear that some action by the racing Commission was necessary to effect a forfeiture or loss of the permit. No such action was ever taken. In such view I am constrained to hold that the permit still exists and is an asset in the hands of the Receiver who is authorized to apply to the Commission for their consent and approval to transfer or assign said permit in accordance with the law in such cases made and provided. There are other points argued for and against the validity of the permit, all of which have been considered, but I believe the matter dealt with in this order is the turning point and decisive in this cause."
It is my conclusion that when the specified defaults occur the license becomes cancelled and annulled and a hearing could only be for the inquisitorial purpose of determining whether any such facts in controversy occurred. The permit under the quoted provisions was cancelled upon the failure to operate and not if and when the Racing Commission might act. Action by the Racing Commission was permissive but not necessary and furthermore the permit under the circumstances has clearly been abandoned. No racing meet has been held since 1932.
HOBSON, J., concurs.
