Opinion
June 29, 1955. Rehearing Denied July 29, 1955.
Appeal from the Circuit Court for Dade County, Stanley Milledge, J.
Hudson Cason and Francis G. Rearick, Miami, for appellant.
Durant Durant, Miami, for appellees.
The appellees sought a declaratory decree construing certain statutes, and after a motion to dismiss had been denied and an answer had been filed, the parties agreed that the litigation should be determined on a motion for summary final decree inasmuch as the sole issue in dispute was one of law. The chancellor disposed of the case in that manner.
We do not feel obliged to detail the facts set out in the bill because we are convinced that it should have been dismissed for want of allegations which would invoke the procedure outlined in Chapter 87, Florida Statutes 1951, and F.S.A., relative to declaratory decrees.
In brief, the appellees alleged that they were denied a certificate of occupancy as a basis for a license to sell intoxicating liquors at a place located outside the city limits of Miami and that the certificate was withheld because the proposed location was within the prohibited distance of a school and two churches. They contended in their bill that by the operation of pertinent statutes and, incidentally, an ordinance of the city of Miami they were entitled to the certificate for which they had applied. But one feature stands out, and that is that they expressed no doubt of their rights or privileges but, on the contrary, asserted with confidence that under the statutes they cited, they were entitled to the certificate which would open the way for a license from the beverage department. They asked for no relief save a construction of relevant law, the following being the entire prayer appearing at the conclusion of the bill: "Petitioners seek a Declaratory Decree construing the Statutes involved in this case, pursuant to Chapter 87, F.S.A." Despite the limited prayer the chancellor, after decreeing that the appellees were entitled to the certificate, granted what appears as coercive relief by stating that the appellant was "under a duty to issue the same and the latter [respondent] is hereby so required."
The motion of the appellant to dismiss contained the ground, among others, that the petitioners were asking "under guise of a declaratory proceeding, relief which is properly obtainable only by mandamus." The denial of the motion was assigned as error and in its brief the appellant presented and argued its challenge of the propriety of the decision. The appellees chose, in reply, to dismiss the matter with the simple statement that the "contention that a proceeding for a Declaratory Decree is not proper is answered by their own Brief, wherein they admit the problem as to the applicability of statutes governing the mode of exercise of powers granted by the Legislature to the County."
We have held that despite the broad scope given by the act to proceedings for declaratory decrees, it was not intended that such proceedings should take the place of other recognized types of actions and that in order to bring its provisions into play, it is necessary that the litigant resorting to it aver facts showing that he is in doubt concerning his rights. Bowden v. Seaboard Air Line R.R. Co., Fla., 47 So.2d 786. In another decision, Halpert v. Oleksy, Fla., 65 So.2d 762, 764, this Court ruled that Section 87.02 should not be construed alone but should be considered with all other sections of Chapter 87, supra, and that if a genuine doubt exists, the chapter "is activated and then — and only then — may the other sections, including * * * 87.11, F.S.A. apply."
To reiterate, we find an expression of doubt totally wanting and because of this omission and the abbreviated nature of the prayer for relief we conclude, in harmony with these decisions, that the decree should be reversed and that the bill should be dismissed.
Reversed.
DREW, C.J., and TERRELL and HOBSON, JJ., concur.
THORNAL, J., concurs only in judgment of reversal.
MURPHREE, Associate Justice, dissents.
ROBERTS, J., not participating.
I agree that the decree should be reversed for the following reasons:
(1) An examination of the original record in this Court in the case of Dade County v. Overstreet, Fla., 59 So.2d 862, and in the mandamus proceeding originated in this Court as Marvin Rauzin v. Schott, as Director of the State Beverage Department, reveals all of the elements necessary to constitute a former adjudication of the issues presented again on this appeal. Therefore, I am of the view that the doctrine of res adjudicata is applicable and that the appellees were barred from re-litigating the issues tendered by the appeal.
The County Commissioners of Dade County had full authority to adopt the zoning restriction in question and it controls the appellees as against the contention that appellees are within the exceptions provided by sub-paragraphs (2) and (5), F.S. Section 561.44, F.S.A. I am of the view that so-called sub-paragraph (5) of F.S. Section 561.44, F.S.A., Chapter 25104, Acts of 1949, effective May 18, 1949, was repealed by a later act, Chapter 25359, Acts of 1949, effective June 13, 1949. No revision of the Florida Statutes has ever included so-called sub-paragraph (5) of F.S. Section 561.44, F.S.A., as a part of the Statutory Revision.
Furthermore, F.S. Section 561.441, F.S.A., Sections 1 and 2 of Chapter 25184, Acts of 1949, effective May 30, 1949, is adequate additional authority to the County Commissioners of Dade County to adopt the zoning regulation to which appellees object.
While mandamus may have been a more appropriate proceeding, and the propriety of using F.S. Chapter 87, F.S.A., in the instant case in lieu of mandamus is certainly questionable, I would not reverse this particular case on this ground because of the broad provisions of F.S. Section 87.12, F.S.A.
As I see it, the question in this case is whether the zoning resolution of Dade County promulgated under authority of chapter 17833, Laws of Florida 1937, fixing the distance of liquor stores at 2,500 feet from churches and schools outside of municipalities, shall control as to the location of appellees' proposed package store, rather than the lesser distance as determined according to the provisions of F.S. § 561.44 (2), F.S.A., Laws of 1949, c. 25359, § 15. The said 1937 Act is a general zoning law authorizing counties having a population in excess of 180,000 to pass regulations as to the location and use of buildings, structures and land, for trade, industry or other specific use, without particular reference to the regulation or zoning of places of business where alcoholic liquors may be sold. On the other hand, the later enacted Florida statute 561.44(2), Laws of 1949, c. 25359, § 15, expressly authorized counties to enact zoning regulations pertaining to places where alcoholic liquors may be sold, and contains certain limitations with respect to distances of such establishments from schools and churches. It seems to me, therefore, that the zoning resolution in question must yield to the provisions of 561.44(2) under the principle that where laws pertaining to the same subject cannot be reconciled, a subsequent specific Act will operate as an exception to an earlier general Act. 50 Am.Jur. 562, sec. 561.
Appellant takes the position that as between the parties here the very same question presented by this appeal has already been decided adversely to the contention of appellees, in the case of Dade County v. Overstreet, Fla., 59 So.2d 862, and, therefore, is now res adjudicata. From a study of the opinion in that case it does not appear to me that the matter has heretofore been finally determined.
I would affirm the ruling of the lower court on the merits of the case and do not favor a reversal because F.S. chapter 87, F.S.A., was the remedy employed instead of mandamus.