A petition for interlocutory certiorari under Rule 34 seeks review of an order of the circuit judge which contains the following:
". . . this cause came on to be heard upon application . . . for a temporary injunction restraining and enjoining the defendant, City of Ormond, its officers, clerk, servants, agents, employees or policemen, from selling a stock of liquor levied upon under a distress warrant issued by the City of Ormond, and certain other relief prayed for in the bill of complaint.
". . . Upon an inspection of the bill, the Court determined to proceed to hear the matter solely upon the application for a restraining order with regard to the sale of the seized liquors. Having thereupon heard argument of counsel, both for the plaintiffs and the defendant, it is thereupon, upon consideration thereof, ORDERED, ADJUDGED AND DECREED that the application be and the same is hereby denied."
The bill of complaint alleges that Chapter 15401, Special Acts of 1931, entitled "AN ACT to Abolish the Present Municipal Government of the Town of Ormond, *Page 403 in Volusia County, Florida, and to Create, Establish and Organize a Municipality to be Known and Designated as the City of Ormond, and to Define Its Territorial Boundaries and to Provide for Its Government, Jurisdiction, Powers, Franchises and Privileges." is void and unenforceable in so far as said Act affects that portion of the territory (included in the municipality) that "affects the lands, property, business, or occupations engaged in by said plaintiffs solely within said area particularly described by metes and bounds in paragraph III hereof, in that said Act violates" stated sections of the State and Federal Constitutions, it being charged in effect that plaintiffs' lands are wild and unimproved, not suited for municipal purposes and cannot be benefitted by being so incorporated.
It is alleged that "The Riviera Club," one of the plaintiffs obtained a State and county license to sell liquors within the statutory limits of the city, but did not obtain a city license because it is alleged, the area upon which the liquors are to be sold, is unlawfully incorporated in the city on the stated constitutional grounds. The statute is clearly not unconstitutional on its face. The alleged invalidity of the corporation boundaries can be judicially determined only by quo warranto proceedings brought in the name of the Attorney-General.
If particularly described parcels of land wholly unsuited for municipal purposes and so conditioned and situated that they can receive no benefit whatever, present or reasonably prospective, by being incorporated in the municipality, so as to make taxation of such lands violate organic property rights, the taxation *Page 404 of the lands for municipal purposes may be enjoined when there is no adequate remedy at law and the land owners have not lost by waiver, acquiescence or otherwise their right to resist the unlawful taxation of the lands. But this has relation to taxation of the lands for municipal purposes.
Enjoining taxation of lands for municipal purposes does not change the boundary lines of the municipality, but restrains such taxation of the lands while they receive no actual or potential benefit by being included in the boundaries of the municipality.
It appears that the lands involved are included within the statute which is prima facie and presumptively valid. Therefore such lands are within the de jure jurisdiction of a de jure municipality. The plaintiff who desires to sell liquors within the statutory boundaries of the City of Ormond must pay the city license tax for such privileges.
The tax being legal, a temporary restraining order was properly denied, the sale of the stock of liquors being for failure to pay an authorized municipal license tax for the sale of such liquors.
Certiorari denied.
BROWN, C. J., TERRELL, CHAPMAN and THOMAS, J. J., concur.
BUFORD, J., dissents.