Opinion
April 25, 1950. Rehearing Denied May 24, 1950.
Henry E. Williams and W. Marion Hendry, Tampa, for petitioner.
Manuel M. Garcia and Reeves, Allen Johnson, Tampa, for respondent.
This case is a sequel to the one reported in 42 So.2d 87, where the history of the litigation was outlined. We affirmed the chancellor in his decision that the provisions of that part of Section 6 of Chapter 17276, Laws of Florida, Acts of 1935, F.S.A. § 550.06 note, with reference to the cancellation of any permit where the holder failed to conduct racing within twelve months after the passage of the act, were not self-executing but that affirmative action on the part of the Florida State Racing Commission was required to cancel if the permittee had failed to hold a racing meet within the prescribed period.
Following the decision of this court, the commission adopted a resolution annulling the permit originally issued to Six Mile Creek Kennel Club, then in the hands of Phillip Bourquardez, as receiver. This action, contends the respondent, was a continuing duty under the act we have cited and was also consistent with a subsequent act of the legislature, Chapter 25242, Laws of Florida, Acts of 1949, F.S.A. § 550.062, cancelling permits of all permittees, including court-appointed receivers, who had not conducted racing meets for five years.
In reply, the petitioner insists that the 1949 act is inapplicable because it is unconstitutional, is an "attempted judicial decree by legislative power," and so on; that the commission had been stripped of its authority to cancel permits in accordance with the 1935 act, supra, for the reason that in the adoption of the Florida Statutes, 1941, that part of the act was omitted, hence was repealed. This last position, counters respondent, is without merit because only those statutes of a general and permanent nature were repealed by omission and this particular act did not fall in that category.
Thus there are presented to us many complicated propositions, but we do not think we are obliged to consider all of them. There is much ado about a permit which, from a practical standpoint, is of small consequence. It was issued nearly nineteen years ago, and racing was conducted for the short period of thirteen days seventeen years ago. Three years later a feeble attempt was made to hold another meet, but this did not actually transpire. There is no track in existence, and it disappeared so long ago that no evidence of it is now apparent save to one who was familiar with it at the time.
Taking up first the point of the repeal of the 1935 act by omitting it from the Florida Statutes of 1941, it is our idea that even if this law was of such general and permanent nature as to have been repealed by the omission, still the duty of the racing commission in the premises and the facts which gave rise to this duty twelve months after the law's passage were not affected. The commission was commanded to vitiate a license or permit issued prior to 1 January 1935 if the holder had not conducted a meet within the twelve months following passage of the act.
There is no doubt that the license involved was issued before 1 January 1935, nor is there any contention that racing was conducted within the prescribed year. So immediately the stated period expired a duty devolved on the commission to cancel the permit if the passivity of the holder continued for that length of time, and the duty continued from day to day until it was discharged by the adoption of the resolution 14 October 1949.
This duty was evidently devoid of any discretion and, in reality, was ministerial even though it had been necessary for the commission to determine the fact of inaction, Roberts, Treasurer, v. U.S., 176 U.S. 221, 20 S.Ct. 376, 44 L.Ed. 443, an element which requires no discussion because there is no claim that there was any racing within the stated year. Nothing remained for the commission to do except administer the coup de grace to a permit that had expired by the passage of time and by non-use. When this function was performed it became effective nunc pro tunc the day in 1936 corresponding to the day in 1935 when the act was passed.
Being firm in the conviction that the formal action which should have been taken long before the adoption of Florida Statutes 1941, was merely ministerial and unaffected by omission from this compilation, we see no need of discussing the other questions presented by petitioner.
The petition for certiorari is denied.
ADAMS C.J., and TERRELL, CHAPMAN, SEBRING and HOBSON, JJ., concur.