Opinion
November 12, 1948. Rehearing Denied January 25, 1949.
Appeal from Circuit Court, Dade County; Stanley Milledge, Judge.
Edward L. Semple, of Miami, for appellants.
Fogle, Kirtley, Connelly Fordham, of Miami, for appellee.
Action in mandamus by the State of Florida, on the relation of Edward R. Hassenteufel, against the City of Coral Gables, a municipal corporation in Dade County, Fla., and others, to compel issuance of license to relator to sell intoxicating liquors. From a judgment granting a peremptory writ, defendants appeal.
Judgment reversed with directions to quash peremptory writ.
We have for review a final judgment in mandamus.
Boulevard Realty Corporation and this appellee own property on opposite sides of the street in the City of Coral Gables. Each desires a license to sell intoxicating liquors. By virtue of the City ordinance only one license is permitted to the area. The City refused appellee's application because Boulevard Realty Corporation had filed one twenty-four hours earlier. Appellee then filed a mandamus action against the City alleging that the Boulevard Realty Corporation had no building or established business in existence. The City answered that a license had been issued to Boulevard Realty Corporation without there being in existence a place to do business. Subsequently upon the strength of the fact that the license had been issued to do business therein a building was erected and the business is now in operation. A peremptory writ, notwithstanding the return, was granted and the City has appealed.
The lower court was prompted to coerce the granting of a license because the business of Boulevard Realty Corporation was not in existence when relator applied for a license. The result of this action is to deprive Boulevard Realty Corporation of a license since the City ordinance does not allow two liquor stores within a radius of 1500 feet of each other.
If this judgment is to stand then the area will have two stores in violation of the City law. Or it may be argued that the license issued to Boulevard Realty Corporation is void. This line of reasoning suggests the question of whether it lies within the right of appellee thus to collaterally assail the act of the City in granting the first license. Our reaction is in the negative.
We have carefully considered the entire record and see no reason to conclude that the City has acted illegally or arbitrarily in granting the license to Boulevard Realty Corporation. It follows then that the City ordinance precluded the issuance of a license to appellee.
The judgment is reversed with directions to quash the peremptory writ.
Reversed.
THOMAS, C.J., and TERRELL, SEBRING, BARNS, and HOBSON, JJ., concur.
On Petition for Rehearing.
The appellee, as ground one of his petition for rehearing, states:
"1. That there were two questions proposed for adjudication on this appeal presented by the brief of appellant and two questions proposed for adjudication by appellee's brief, however it would appear from reading the opinion of the court in this clause that not one of these questions presented either by appellant or appellee has been squarely met and answered by the Court."
Since counsel for appellee has attached such importance to the "questions involved" as stated in the briefs, we feel it our duty to give the matter some detailed consideration. We feel that the petitioner for rehearing is not alone in his views that the "questions" of counsel should be answered.
If the prime function of an appellate court was to answer the "questions" as framed by counsel, his position might be well taken; however such is not the case.
An appeal to this Court is to review some specific order, judgment or decree of the trial court or some specific decretal portion of an order, judgment or decree, and the appellant is required to specify the alleged erroneous act of the trial judge, with such particularity as will inform this Court of the act which the appellant deems erroneous and harmful. This is done by charges of error against the trial judge which to the jurisprudence is known as the assignment of errors.
In support of the assignment of errors, briefs are required. Briefs are supposed to be addressed to the record and the "argument" of the brief to the acts of the trial judge charged to constitute harmful error. Supreme Court Rule 20 requires:
"Specific assignments of error from which the questions argued arise should be stated, and if any reference to the transcript is made, the page should be given."
The purpose and function of the "questions involved" presented by a brief, as stated in the case of Town of Howey-in-the-Hills v. Graessle, Fla., 36 So.2d 619, is to clarify the argument addressed to error vel non presented by the assignment directed against a specified act of the trial judge.
In disposing of an appeal, the appellate court's decision is primarily addressed to the consideration of the harmful errors vel non and briefs are a convenient method of introducing the case to the appellate court and presenting argument addressed to the case on appeal. Limited by the assignments of error, the case on appeal is a review by this Court of the same matter as previously considered and passed on by the lower court. This Court's decision and opinion is on the case as made on appeal and not essentially on "questions" as framed by counsel.
The petition for rehearing is denied.
ADAMS, C.J., and TERRELL and HOBSON, JJ., concur.
CHAPMAN, THOMAS, and SEBRING, JJ., dissent.