Puckett v. State ex rel. Johnson

33 Fla. 385 | Fla. | 1894

.Mabby, J.:

"Mandamus proceedings were instituted in the name (of the State, on the relation of Johnson, appellee, .against Puckett, appellant, to compel the issuance by the latter to the former of a city license for carrying •on the business of a dealer in liquors, m the city of Orlando. The alternative writ alleges in substance that Johnson applied for and obtained from the tax collector of Orange county a state and county license -as a dealer in spirituous, vinous and malt liquors in the city of Orlando, State of Florida, for a period beginning on the first day of November, 1889, and ending the first day of October, 1890, said license being issued by the tax collector, and also signed by the ■county judge of said county; that he, Johnson, applied ■•to Puckett, the tax collector of the city of Orlando, for -■a license required by the city of a person carrying on the business of a dealer in such liquors in said city, and tendered to him, as such collector, the money for such license tax and all costs and charges for issuing the same, but ‘ ‘the said tax collector refused, and still refuses, to issue to the said petitioner the said license, as is the duty of the said collector; by means whereof the petitioner was and is deprived of and prevented from carrying on his business as such dealer in spiritu•ous, vinous and malt liquors in the said city of Orlando, as is his just and legal right to do.” A motion was made to quash the alternative writ for the following reasons, viz: 1. The allegations, show no sufficient facts to justify the interposition of the court. 2. The •allegations are vague, uncertain and inconsistent. 3. The writ does not show that relator at the time of ihe tender alleged, had complied with the law and ordinances in such cases, nor is there any offer to comply .therewith. 4. The writ does notproperh* allege that respondentwas duly authorized or empowered to issue the license demanded. 5. No reason is set forth in said ■writ as the cause of respondent’s refusal, and the court will not infer that he wilfully refused to do his duty. 6. Relator does not allege that- he has no other adequate legal remedy. This motion was overruled, respondent answered, a demurrer to the answer was sustained and an appeal taken from the decision of the court ordering a peremptory writ of mandamus to issue.

We will consider the assignment of error based upon the ruling of the court on the motion to quash the writ. On this point we are confined to the allegations of the alternative writ, the substance of which '* we ¡have given. The alternative writ in mandamus proceedings must show a clear prima facie case in favor of relator. State ex rel. vs. Finley, Judge, 30 Fla., 302, 11 South. Rep., 674; Town of Enterprise vs. State ex rel., 29 Fla., 128, 10 South. Rep., 740. In order to make out a prima facie case the writ should allege all the essential facts which show the duty and impose the legal obligation on' the respondent to perform the acts demanded of him, as well as the facts that entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation. High’s Ex. Legal Rems., sec. 536; Canal Trustees vs. People, 12 Ill., 248; Lavalle vs. Soucy, 96 Ill., 467; Hambleton vs. Town of Dexter, 89 Mo., 188; The King vs. Bishop of Oxford, 7 East, 345; Holland, Sheriff, vs. State ex rel., 23 Fla., 123, 1 South. Rep., 521.

All of the essential allegations in the alternative writ before us may be succinctly stated as follows, mz: That the relator applied for and obtained from the proper officials a state and county license to retail liquors, wines and beer in the city of. Orlando, and then made application to respondent, as tax collector of said city, for a license required by it to carry on such business within the corporate limits, and that he refused to issue the license, although the license tax and all costs were tendered to him, and it was his duty to issue the same. It is not contended that the writ is-defective because it fails to allege that relator had complied with the prerequisites in reference to obtaining-the state and county license from the county officials, but it is conceded in the brief of counsel for appellant-that said license was duly obtained. We will not, therefore, devote any attention to that part of the writ in reference to obtaining the state and county license, but will confine ourselves to the allegations in reference to the duty of respondent to issue the license.

There is no statutory provision making it the duty of respondent, as tax collector of the city of Orlando,, to issue the license demanded of him. The city was invested with authority to impose an occupational tax on-relator not exceeding fifty per cent, of the state tax, and also to require him to procure from the city a license-for carrying on his business within the city limits. The authority to require the city license was acquired under the general law for incorporating cities and. ■towns, and by virtue of such authority the city could, by ordinance impose the duty of issuing the license-upon the tax collector or some other municipal officer. The statute giving the authority to require the license-does not prescribe how it shall be issued. The writ of mandamus can only be invoked to compel the performance of a legal duty appertaining to an official, or quasi official, function, and where the relator comes into court asking for such relief, the rule requires, as-we have seen, that the alternative writ should allege all the essential facts which show such duty. In the case 'before us we think the allegations are insufficient. It Is stated that the relator applied to respondent for a license required by the city, but it is not alleged that the-city in any authorized way imposed the duty of issuing the license upon respondent, nor does it appear that he was under any duty imposed by law to issue it. The mere allegation of a duty to issue the ¡license, without stating how the duty was imposed, is not sufficient. State ex rel. vs. Finley, Judge, supra. If it was the duty of th¿ respondent, under the ordinances, to receive the tax money and issue the 'license required, it should have been stated, but this was not done. The alternative writ being defective for the reasons given, the motion to quash should have been sustained, and this being the case, the other questions presented are not open for consid•.eration.

The judgment will, therefore, be reversed, with directions to sustain the motion to quash the alternative writ, ■and such will be the order entered.