Opinion
July 25, 1950.
Appeal from the Circuit Court for Palm Beach County, Joseph S. White, J.
L.S. Gaulden, J. William Norman, West Palm Beach, J. Tom Watson, Tampa, and Sumter Leitner, Tallahassee, for appellant.
Richard W. Ervin, Attorney General, Fred M. Burns and Mallory H. Horton, Assistant Attorneys General and Phil D. O'Connell, State Attorney, West Palm Beach, for appellee.
This appeal is from an order entered by Honorable Jos. S. White as Circuit Judge, in which order the Bill of Complaint filed by the appellant (as plaintiff below) was dismissed without prejudice. Petition for rehearing was filed and after a hearing and arguments Judge White entered the following order, in which he expressed his opinion:
"This cause was heard after due notice upon plaintiff's petition for rehearing, and argument of counsel. The rule is well established that suits against the Comptroller to test the legality of taxes concerning which he is the enforcement officer, are maintainable against him only in Leon County, the place of the Comptroller's official residence, unless he shall waive the point of venue, or unless some attempt to seize and sell property to satisfy the disputed tax has been actually initiated in the county where the suit is brought. See Mason Lumber Co. v. Lee, 126 Fla. 371, 171 So. 332. [Also compare Smith v. Williams, 160 Fla. 580, 35 So.2d 844; Game and Fresh Water Fish Commission v. Williams, 158 Fla. 369, 28 So.2d 431 and cases therein cited.] Unless in this case one of the exceptions thus mentioned exists, this suit may be brought only in Leon County.
"Unquestionably, there has been no waiver by the Comptroller of his right to be sued in Leon County. On the contrary, at the first opportunity in this matter he expressly insisted on his right to be sued there.
"Neither does it appear that there has been an attempt to seize and sell plaintiff's property. The bill of complaint was filed before the sales tax law became effective. At that time the Comptroller was without power to seize property or place plaintiff under arrest. Plaintiff's right of action exists, if at all, at the time of the institution of suit. Since there could be no seizure of property at that time or a threat to plaintiff's liberty, the second exception mentioned could not possibly exist. Thereupon,
"It is Ordered and Decreed that the petition for rehearing is denied.
"Done and Ordered this November 14th A.D. 1949".
Appellant attempted in and by his Bill of Complaint to raise the question of the constitutionality of Chapter 26319, Laws of Florida, Special Session 1949, F.S.A. § 212.01 et seq., but his Bill was dismissed for the reason that it should have been filed in Leon County. Consequently, we do not discuss the various questions in the Bill relating to the constitutionality of the Florida Sales Tax Law. Moreover, most, if not all, of the questions attempted to be presented by the appellant in the instant suit were determined adversely to his contentions in the case of Gaulden v. Kirk, Fla., 47 So.2d 567.
We approve the orders entered by the learned Circuit Judge which are before us for review on the instant appeal. Appellant has failed to make it clearly apparent that the lower court erred in entering either the order of dismissal or the order denying petition for rehearing.
Affirmed.
ADAMS, C.J., and TERRELL, CHAPMAN, THOMAS, SEBRING and ROBERTS, JJ., concur.