State Ex Rel. McJunkin v. McLin

138 So. 480, 103 Fla. 965

• Court: Supreme Court of Florida
• Decided: December 22, 1931
• Status: Published

Opinion

Buford, O.J.

In this case alternative writ of mandamus was issued to the Bespondent to require him to show cause why he should not issue a license tag to the Belator to be used on a motor bus operating over certain public highways in the State of Florida upon the payment of the fee required under the provisions of Chapter 10182 Laws of Fla., Acts of 1925. The Bespondent filed his return which shows that' the Belator demanded a license tag to be issued for the bus described under the provisions of Chapter 10182, supra, for and at the price of $69.75 and that the respondent' refused to issue such license tag because the provisions in this regard of chapter 10182, supra, had been superseded by the provisions of chapter 15625, Acts of 1931, wherein and whereby a license tag costing $99.00 plus 50e for service fee is required to authorize the operation of the bus in controversy.

The Belator has moved for the issuance of peremptory writ', which is equivalent to demurrer to the return and upon which the Court may order the peremptory writ issued or the alternative writ dismissed.

It is the contention of the Belator that' the provision of section 8 of chapter 15625, Acts of 1931, to-wit: “Provided further that nothing in this Act shall repeal, alter or diminish the mileage tax or fees now provided by law for motor vehicles coming under the supervision of the Bail-road Commission of the State of Florida”, precludes the license tag schedule as provided in that Act' from applying to the bus here under consideration because it is admitted that this bus is operated under the supervision of the Bail-road Commission.

The construction sought to be placed upon this provision of section 8 of the Act is not tenable. The license tax sought here to be collected for the license tag is not 'a mileage tax or fee. Our construction of the proviso is that it applies to the mileage tax or mileage fees which are required under the provisions of chapter 14764, Acts of 1931, and has no application to the fees fixed for license tags by the provisions of chapter 15625, supra.

For the reasons stated, the motion for peremptory writ is denied and the alternative writ is dismissed. It is so ordered.

Buford, C.J., and Whitfield, Ellis, Terrell, Brown and Davis, J.J., concur.