Opinion
July 21, 1950.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Jeptha P. Marchant and Joseph A. Perkins, Miami, for appellant.
Weintraub, Martin Schwartz, Miami, for H. Ernest Overstreet.
Weldon G. Starry, of Tallahassee, for appellee.
The relator-appellant filed his petition for an alternative writ of mandamus in the Circuit Court of Dade County, Florida, against Honorable H. Ernest Overstreet, Tax Collector of Dade County, Florida, and Honorable Arch Livingston, Motor Vehicle Commissioner of Florida, and alleged that he, the relator-appellant, was a property owner and registered voter of Dade County, Florida; that during the month of August, 1949, he qualified to operate a Tax Collection Agency in Dade County as provided by Chapter 197, F.S.A. The County Judge of Dade County issued to the relator-appellant a permit or license to operate the Tax Collection Agency in Dade County and all other acts were complied with necessary for the appointment, inclusive of giving and having approved the necessary bond.
It is alleged that the relator applied to Hon. Arch Livingston, Motor Vehicle Commissioner, for an Auto Tax Agency permit, and subsequent thereto the Commissioner expressed a willingness to appoint the relator, conditioned on the acquiescence and approval of the issuance of the permit by Hon. H. Ernest Overstreet, Tax Collector of Dade County, Florida. It is the lawful duty of the Tax Collector to issue the permit but he arbitrarily and capriciously declines and refuses so to do. The Motor Vehicle Commissioner has signified his intention to join in the appointment of the relator-appellant immediately after the Tax Collector by an order of the Court is required to perform the duties required of his office by issuing a permit for an Auto Tax Agency in Dade County by the Tax Collector, a respondent-appellee. An alternative writ of mandamus issued and was served on the respondents.
The respective returns of the respondents-appellees to the alternative writ of mandamus disclaims and denies, specifically, each allegation of capricious and arbitrary action on the part of each of them in refusing or declining to issue to the relator-appellant a permit to operate a Tax Collection Agency in Dade County. The returns further recite that broad discretionary power is conferred on the respondents under the several provisions of Chapter 24024, Acts of 1947, Laws of Florida. It is the duty of the respondents under the provisions of the aforesaid Act to issue permits only to persons qualified by training, experience and education and the permits so issued in Dade County shall not exceed twenty in number. It is the respondents' view and conclusion that the relator-appellant is not sufficiently qualified by knowledge, training or experience to properly handle motor vehicle applications as a Tax Collection Agency. The lower court sustained the returns of respondents and denied relator a peremptory writ of mandamus, the return notwithstanding, and dismissed the suit. The relator appealed.
The controlling question now before us is whether or not Chapter 24024, Acts of 1947, grants or confers discretionary or ministerial authority on the respondents in issuing permits to operate Tax Collection Agencies in Dade County, Florida. If the authority granted to the respondents under the Act is ministerial, then the duty rests upon them to issue the permit and the judgment of the court below must be reversed. On the other hand, if the authority conferred by the Act makes it a discretionary act on the part of the respondents to issue to the relator such a permit, then the judgment appealed from must be affirmed. The answer to the question turns on the interpretation of Chapter 24024, supra, and Chapter 197, F.S.A.
Section 197.01, F.S.A., defines a Tax Collection Agency as a person who shall collect, pay or offer to collect or pay the taxes or special assessments of another, levied by the State of Florida, or any of its subdivisions or municipalities, for or in expectation of a commission, compensation or valuable consideration, but shall not include certain person etc. * * * Section 197.02 provides that no person may act as a Tax Collection Agency without first complying with the provisions of Chapter 197. Section 197.03 provides the procedure for acquiring, annually, a license from the County Judge in each County in Florida by persons desiring such Tax Collection Agency. Other duties are set out in Section 197.04, 197.05, 197.06, 197.07, and 197.09.
Chapter 24024, Acts of 1947, conferred additional power on Tax Collection Agencies of the several counties of Florida, but in counties having a population of 300,000, or more, according to the last preceding state census, all persons conducting Tax Collection Agencies were required to secure a permit from the Tax Collector and Motor Vehicle Commissioner of Florida prior to handling motor vehicle applications. The power to grant or withhold the permit by the Act was vested in the respondents Tax Assessor and the Motor Vehicle Commissioner of Florida. Pertinent here are Sections 1, 2 and 3 of Chapter 24024, Acts of 1947:
"Section 1. No person or persons acting as or conducting a Tax Collecting Agency in any county in this state now or hereafter having a population of more than 300,000, according to the last preceding state census, under the provisions of Chapter 197, Florida Statutes of 1941, shall handle any application or applications pertaining to Motor Vehicles, unless or until they have secured a permit authorizing them to handle such applications.
"Section 2. Any person or persons conducting or intending to conduct a Tax Collection Agency under the provisions of the above Chapter, in any such county, and desiring to handle Motor Vehicle applications, shall apply to the Tax Collector of the county in which they conduct or intend to conduct, a Tax Collection Agency, for such permit, which must be approved by the Tax Collector and the Motor Vehicle Commissioner of the State of Florida before they can engage in the business of handling Motor Vehicle applications.
"Section 3. Such permit, if granted, shall be good until the end of the occupational license year in which they are issued; and thereafter a new application must be filed, and new permits granted for each license year."
The motion for a peremptory writ admits that twenty Tax Collection Agencies now exist in Dade County, Florida. The return of the Tax Collector points out that it is his legal duty to check the work of all the Tax Collection Agencies of Dade County. It is impossible for the Tax Collector's office to check and examine more than twenty Tax Collection Agencies and additional Agencies would be detrimental to the public interest of Dade County. A Tax Collection Agency handling motor vehicle applications in Dade County would pass through the office of the Tax Collector where each application would be checked for errors or mistakes and such work would increase the burdens of the office and require additional personnel. Section 3, supra, provides: "Such permit, if granted, shall be good until the end of the occupational license year * * *; and thereafter a new application must be filed and new permits granted * * *."
A motion for a peremptory writ of mandamus the return notwithstanding admits as true facts stated in the respondent Motor Vehicle Commissioner's return to the effect that he is required to account for all moneys received from the sale of license tags; the proper classification thereof; to check, audit and analyze all applications and to check reports of all tags sold in the State of Florida; he is under bond and by law required faithfully and honestly to account for all moneys for the sale of tags in the State of Florida. The law allows private Agencies in Dade County and twenty such agencies are now operating therein. It is our view and conclusion that the Legislature in the enactment of Chapter 24024, supra, intended to clothe the respondents with discretionary power in issuing permits to Tax Collecting Agencies desiring to handle applications for motor vehicle tags or licenses in counties having populations of 300,000, or more.
We have held on many occasions that the action of mandamus is a legal remedy which is not awarded as a matter of right but in the exercise of sound judicial discretion — the relator must establish a clear legal right to its issuance and go an additional step and show that no other adequate remedy exists. State ex rel. Dixie Inn v. City of Miami, 156 Fla. 784, 24 So.2d 705. The constitutionality of Chapter 24024, Acts of 1947, was challenged on this appeal, but the contention was abandoned and so announced by counsel during the course of oral arguments.
We fail to find error in the record.
Affirmed.
ADAMS, C.J., and TERRELL, THOMAS, SEBRING, HOBSON and ROBERTS, JJ., concur.