Opinion
No. 21855.
June 12, 1951.
Appeal from the Circuit Court, Duval County, Claude Ogilvie, J.
Richard W. Ervin, Atty. Gen., John A. Madigan, Jr., and Fred M. Burns, Asst. Atty. Gen. and Lewis H. Tribble, Tallahassee, for appellant.
Jennings, Watts, Clarke Hamilton, Jacksonville, for appellee.
On June 8, 1950, the Jacksonville Symphony Association, a corporation not for profit, filed its bill for declaratory decree against C.M. Gay as Comptroller of the State of Florida, and appellant herein, in the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida, for the purpose of obtaining a construction of Chapter 212, Florida Statutes, F.S.A., Florida Revenue Act of 1949, insofar as the same is applicable to admissions to performances given under the direction of or by the said Jacksonville Symphony Association. Plaintiff, Jacksonville Symphony Association, appellee herein, contended that admissions charged to concerts of the plaintiff are exempt from the provisions of Section 212.04 of said act and from the taxes imposed by said section, on the basis that the total proceeds of all concerts given by the Jacksonville Symphony Association inure to and are used solely by the association as an educational institution. Appellee asserted that such admissions are expressly exempted by a proviso in section 212.04(2) of the statute which reads as follows: "provided further, that no tax shall be levied under this section with respect to shows, pageants and plays where the total proceeds inure to and are used solely by a religious, educational or charitable institution * * *."
Defendant Gay, appellant herein, moved to dismiss the cause of action on the ground that the proceeding, being primarily one to construe the provisions of Section 212.04(2), Florida Statutes, and to declare its application to the appellee and not to stop or arrest an active attempt on the part of the appellant to seize and sell property of appellee for taxes, should have been brought in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, the official residence of the State Comptroller. Such motion to dismiss was denied by the Chancellor below on June 28, 1950, and it is herein assigned as error.
Appellant thereafter answered the bill, contending that the exemption proviso contained in Section 212.04, Florida Statutes, is not applicable to the instant situation, on the theory that all proceeds do not inure to nor are they used solely by an educational institution, since a portion of the proceeds from the sale of such tickets is used to pay professional musicians, guest artists and others who take part in the concerts.
On November 2, 1950, the court below ruled in favor of appellee, holding that the admissions charged for such concerts are exempt from the tax imposed by the Florida Revenue Act of 1949, enjoining appellant from further collection of such taxes, and ordering refund of all taxes heretofore paid by appellee on past concerts.
Appellant seasonably filed his Notice of Appeal, Assignment of Errors and Directions to the Clerk for making up the transcript of record.
Appellant poses two questions for our consideration and determination. These questions are:
1. "May a suit for a Declaratory Decree against the Comptroller of the State of Florida, as Administrator of the Florida Revenue Act of 1949 (Chapter 212, Florida Statutes) be brought in a county other than Leon County, Florida, when said Comptroller insists that such suit be brought in Leon County and when there has been no active attempt on the part of the Comptroller to seize and sell property of Appellee for the collection of any tax?"
2. "Is the sales price or actual value received from the sale of tickets of admission to concerts exempt from taxation under Section 212.04(2) when a portion of the proceeds from the sale of such tickets are used to pay professional musicians, guest artists and others who participate in the concerts?"
Since we have reached the conclusion that we must answer appellant's first question in the negative, although it was answered affirmatively in the lower court, it is not necessary, nor is it appropriate for us to express an opinion upon the second question posed by appellant.
We agree with the appellant's contention that our recent decision in the case of Henderson v. Gay, Fla., 49 So.2d 325, 327, is controlling in the instant suit upon the question of the right of the Comptroller to insist upon this suit being brought in Leon County. In that case we said:
"So there is now brought into relief the question whether the rule we have recognized with reference to venue in suits against the comptroller is affected by the provisions of that section. [Sec. 15 of Chapter 26319, Laws of Florida, 1949, F.S.A. § 212.15.] It seems to us that, disregarding for the moment Section 15, supra, the bill of complaint would fall in the category of those cases which must be, if the comptroller insists upon it, instituted at Tallahassee, being primarily one for the interpretation of the revenue act, there being no allegation of an invasion of the plaintiff's constitutional rights or of an attempt to seize property.
"What effect, then, does the provision of the statute with reference to review have upon the venue of a suit involving an interpretation of the provisions of the revenue act so far as the plaintiff's property is concerned?
"In this section we find the simple provision that any person who has received an adverse decision from the comptroller `shall have the right' within a certain period `to have the comptroller's determination reviewed in appropriate proceedings in any of the circuit courts of Florida * * *.' We are unable to construe this provision of the statute as giving every taxpayer who is dissatisfied with the determination by the comptroller of the effect of the act upon his property the absolute right to go into any circuit court of the state and, despite the claim of the comptroller to the privilege of being sued at the seat of government, secure a ruling in the court of his choice. Thus to hold would, in our opinion, not take into account the reasons we have expressed for the rule, such as the securing of uniformity of decisions in various controversies throughout the state and the economical and expeditious handling of the affairs of the comptroller's office.
"The appellant has advanced the idea that inasmuch as each person engaged in a retail business subject to tax is, in effect, a gatherer as well as a payer of taxes, the provisions of Section 15, supra, were intended to relax the rule in order to relieve him of the intolerable burden of going to the county where the capital is located in order to secure redress. It seems to us that this situation only emphasizes the need for the rule because, regardless of the number of suits and suitors, there is but one comptroller, and in order not to hamper him in the performance of his manifold duties, these suits, where possible, should be concentrated where the comptroller, in the interest of the public, may defend them with a minimum of effort, time, and expense.
"We conclude that the chancellor was correct in recognizing the privilege of the comptroller to be sued in the county where the state capital is located; so his order is
"Affirmed."
It is the contention of appellee herein that our decision in Henderson v. Gay, supra, is not decisive of the question of venue in this cause. The position taken by appellee is predicated primarily upon the premise that the appellant, Henderson, in the Henderson v. Gay case had failed to show that he had brought himself within the provisions of Section 15 of Chapter 26319, supra, and therefore, had no right to maintain his suit in Dade County. Appellee insists that it did comply with every prerequisite step outlined in Section 15, supra, and that it, therefore had a right to maintain the instant suit in Duval County, the situs of its principal place of business. This attempt to differentiate the instant suit from that of Henderson v. Gay, supra, amounts to nothing more than the creation of "a distinction without a difference." In Henderson v. Gay, supra, no point was made of the fact that the appellant, Henderson, had failed to take each and every step required under the procedure set up in Section 15, supra. Indeed, in that case we stated that we assumed the bill was an effort to seek a review of the Comptroller's determination as provided in Section 15 of Chapter 26319, supra.
Regardless of whether appellant Henderson in his suit showed that he had complied with all of the requirements of Section 15, supra, which might entitle him to maintain his suit "in any of the circuit courts of Florida", the fact remains that we decided in Henderson v. Gay, supra, that the real question was one of venue, certainly not of jurisdiction, and that the Comptroller might insist upon being sued in Leon County unless some "invasion of the plaintiff's constitutional rights or of an attempt to seize property" is alleged. See Gay, Comptroller, v. Ogilvie, Judge, Fla., 47 So.2d 525; Smith v. Williams, Circuit Judge, 160 Fla. 580, 35 So.2d 844, and Gaulden v. Gay, Fla., 47 So.2d 580.
It is provided in Section 15 of Chapter 26319, supra, that any person, after he receives an adverse ruling from the Comptroller "shall have the right within thirty days from notice of such determination to have the comptroller's determination reviewed in appropriate proceedings in any of the circuit courts of Florida". The foregoing provision is not amendatory of existing law on the subject of venue. It is simply in line with and declaratory of the organic law. Under our system of government the courts are always open to any citizen who may be entitled to relief and such person might institute any appropriate suit in a court of competent jurisdiction but the question of venue may be raised against him by his adversary if he should have the right to be sued in some other county.
We conclude that the Comptroller's assertion of his right to be sued in Leon County should have been sustained. The learned Circuit Judge committed error when he denied the appellant's motion to dismiss and our judgment, therefore, is one of reversal.
Reversed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.