STATE, EX. REL. DAVID B. ENBY AND RALPH ENBY, TRADING AND OPERATING AS FUNLAND PARK,
v.
HAYES WOOD, AS TAX COLLECTOR, DADE COUNTY, AND W. F. BLANTON, AS COUNTY JUDGE, DADE COUNTY
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A Florida mandamus case where operators of Funland Park sought to compel the Tax Collector and County Judge of Dade County to issue amusement licenses based on Chapter 18011 of the 1937 Florida statutes. The Supreme Court denied respondents' motion to quash the alternative writ, holding that the factual dispute about what statute controlled the licensing must proceed.
The motion to quash the alternative writ of mandamus was denied. On a motion to quash an alternative writ, all well-pleaded facts are admitted as true, and when the alternative writ makes a prima facie case, the motion to quash must be denied. The dispute presented was one of fact regarding the proper characterization and statutory control of the business.
“It is the admitted law of this State that on a motion to quash an alternative writ of mandamus, the said motion to quash as directed to the alternative writ, admits as true all matters of fact as are sufficiently pleaded.”
Establishes the standard that a motion to quash admits all well-pleaded facts as true
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Join FLexlaw to unlock all legal intelligenceRelators David B. Enby and Ralph Enby operated Funland Park, an amusement business with twenty devices or side shows, at Northwest 7th-Avenue and 24th…
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— On petition an alternative writ of mandamus was directed to the above named respondents. The alternative writ, among other things, recited that the relators were engaged in business of a permanent nature located at Northwest 7th-Avenue and 24th Streets in the City of Miami, Florida, and operated under the trade name of “Funland Park.” On November 25, 1938, relators de*342posited, with the respondents the sum of $150.00 and demanded State and County licenses authorizing the operation of Funland Park for the fiscal year beginning October 1, 1938, based on twenty devices or side shows at $7.50 each, calculated under Chapter 18011, Acts of 1937, Laws of Florida.
Os motion to quash the alternative writ so issued, it is' contended by the respondents that certain enumerated Sections of Chapter 18011, Acts of 1937, Laws of Florida, do not control, and are inapplicable to the amusement or business so operated by the relators, but that the business so operated by the relators and for which a license is sought is controlled by Section 1244 C. G. L. and Section 3 of Chapter 17758, Laws of Florida, Acts of 1937. It is clear that the petition and the alternative writ as issued describes a certain type of business, while the motion to quash and the law cited describe a business different in description and method of operation from that set out in the alternative writ of mandamus, and thereby present, at this state of the pleadings, purely a question of fact.
It is the admitted law of this State that on a motion to quash an alternative writ of mandamus, the said motion to quash as directed to the alternative writ, admits as true all matters of fact as are sufficiently pleaded. See State v. Jacksonville Terminal Co., 71 Fla. 295, 71 So. 474. The facts, well pleaded in this case and set out in the alternative wrrit, are admitted to be true on motion to quash and when an alternative writ makes a prima facie case a motion to quash should be denied. See State, ex rel. Baldwin v. Brockett, 95 Fla. 937, 117 So. 107.
The motion to quash is hereby denied and the respondents are allowed fifteen days from date hereof in which to file such answer or return as they may be advised to the alternative writ previously issued in this cause. Is it so ordered.
*343■ Terrell, C. J., and Whi.tfield, Brown, Buford-and Thomas, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State ex rel. David B. Enby & Ralph Enby v. Hayes Wood, 140 Fla. 185 (Fla. 1939)…Chapman, J. — A motion to quash the alternative writ of mandamus previously issued by this Court was denied. See State ex rel. David B. Enby, et al, etc., v. Hayes Wood, as Tax Collector of Dade County, Fla., et al., 136 Fla. 341, 186 So. 420. The order of denial likewise required the respondents to file such answer or return to the alternative writ as they or either of them may be advised. In the motion to quash the alternative writ, the relators contended that they were e…
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State v. Monroe Cnty., 25 Fla. Supp. 179 (Monroe Cty. Cir. Ct. 1964)…onclusions of law — (1) A motion to quash an alternative writ admits as true all matters of fact as are sufficiently pleaded, and when an alternative writ makes a prima facie case, a motion to quash should be denied. See State ex rel. Enby v. Wood, 136 Fla. 341, 186 So. 420. (2) Historically, courts decline to interfere with the right of the electorate to act in a referendum upon a proposed law, absent a clear showing that the proposed law contravenes existing controlling organic prescriptions. It is my v…
Authorities Cited
- The State of Fla. ex rel. R. Hudson Burr v. Jacksonville Terminal Co., 71 Fla. 295 (Fla. 1916)
- Inter-County Tel. & Tel. Co. v. Bozarth, 95 Fla. 939 (Fla. 1928)
- State v. Brockett, 95 Fla. 937 (Fla. 1928)