State Ex Rel. Norris v. Chancey

• Decision Date: 03 September 1937
• Citation: 129 Fla. 194,176 So. 78
• Parties: STATE ex rel. NORRIS et al. v. CHANCEY, Mayor, et al.
• Court: Florida Supreme Court

176 So. 78

129 Fla. 194

STATE ex rel. NORRIS et al. v. CHANCEY, Mayor, et al.

Florida Supreme Court

September 3, 1937

Original proceeding in mandamus by the State, on the relation of Julia H. Norris and others, composing the Civil Service Board of the City of Tampa, against R. L. Chancey, as Mayor of the City of Tampa, and others, wherein an alternative writ was issued. On motion of respondents to quash the alternative writ, and on motion of relator for the issuance of a peremptory writ.

Motion to quash granted, but with leave to the relators to amend the alternative writ.

COUNSEL C. C. Parker and E. B. Drumright, both of Tampa, for relators.

Alonzo B. McMullen and Ralph A. Marsicano, both of Tampa, for respondents.

OPINION

BROWN Justice.

This is a case of original jurisdiction. The members composing the Civil Service Board of the City of Tampa filed a petition in this court for the issuance of a writ of mandamus directed to R. E. L. Chancey as mayor of said city and to Dr. J. R McEachern as head of the health department, commanding them to forthwith restore E. S. Chastain to his employment as inspector in the health department, and also commanding them to remove from employment in said department J. L. Young and three other named persons; and also commanding the mayor and C.J. Woodruff as chief of police to remove from employment in the police department W. P. Bolesta and four other named persons; and commanding said mayor and A. J. White as head of the fire department to restore to employment in said service Carl Schultz and three other named persons.

On this petition the court issued a rule nisi to the respondents and the other persons named in the petition to appear and show cause why the writ should not issue as prayed, and the several respondents filed motions to discharge the rule, upon which argument was had, and upon consideration thereof the court directed the issuance of an alternative writ of mandamus, the command of which was substantially the same as that asked for in the original petition, and in said writ the respondents were ordered to carry out the command, or appear on a designated date and show cause why they refused so to do, and why peremptory writ should not be issued as prayed.

On the date designated in the alternative writ, the respondents appeared by their counsel and filed motions to quash the alternative writ, one motion being filed by the Mayor and another by the other two respondents; whereupon the relators filed a motion for the issuance of the peremptory writ alleging that the sufficiency of said writ had already been determined by reason of its issuance after the argument on the rule nisi, and that by now appearing and filing motions to quash the alternative writ, the respondents must be held to have asserted the only defense they have, which had been determined adversely to them by the issuance of the alternative writ.

So, the case is now before us on the alternative writ, the motions of respondents to quash the same, and the motion of relators for the issuance of the peremptory writ. In view of the importance of the questions involved, and the fact that no written opinion has been prepared in connection with the prior orders of the court in this case, we deem it proper to consider and discuss all meritorious questions raised by motions now before us, even though some of the grounds thereof may have been incorporated in previous motions already acted upon. The case is still in fieri, and the court still retains complete jurisdiction of the same, and may, if it sees fit, not only consider and dispose of the present motions, but it may, if deemed necessary, reconsider and vacate any previous preliminary order which it has made.

The first question arising here is whether the Civil Service Board of the City of Tampa can resort to the use of a writ of mandamus directed to other officers of said city for the purpose of compelling official action on their part in a case of this kind.

In the case of Pennock et al. v. State ex rel. Hood et al. as Trustees of Special Tax School District, 61 Fla. 383, 54 So. 1004, this court held that:

I. 'Mandamus will not lie to compel action upon the part of public officers, when it is apparent that the relator has no direct interest in the action sought to be coerced, and that no benefit can accrue to him from its performance. To authorize the relief, it must clearly appear that there is a specific ministerial duty, in the performance of which the applicant for relief is directly interested. The writ will not be granted merely for the purpose of defining the powers and duties of public officers, independent of any direct personal interest upon the part of him who seeks the relief.'

In that case, an alternative writ of mandamus was sued out by the special tax school district and certain parties as trustees of said district against Pennock and others, composing the Board of Public Instruction, and one Harris as county superintendent, to compel the issuance of a warrant to certain attorneys who had been employed by and had rendered certain services to said district, and whose bill for such services had been approved by the district trustees. This court held that:

'The purpose of the writ here is to coerce the issuance to third persons, who are not relators, of a warrant in payment to such third persons of an indebtedness alleged to be due to such third parties, in which claim the relators have no sort of interest whatsoever, and the motion to quash the alternative writ should have been granted upon this ground.'

This case was followed by Wiecking v. State ex rel. Coackman et al., 66 Fla. 49, 62 So. 898. In that case the board of county commissioners had ordered a warrant to issue to certain attorneys as their fee for services rendered, and the county clerk, as ex officio clerk of the board, refused to issue and sign the warrant. The board resorted to a writ of mandamus to compel him to do so. This court held that after the commissioners had ordered the warrant to issue, the direct pecuniary interest in the perfecting of that warrant was in those named as its beneficiaries, and that the county should not be put to the expense of employing counsel and incurring a liability for cost in a mandamus proceeding which was for the primary benefit of private individuals. The earlier case of Holland v. State ex rel. Duval County, 23 Fla. 123, 1 So. 521, to which we will presently refer, was distinguished on the ground that the Holland Case involved 'the continuing care and management of the county convicts, a peculiarly public duty, and not a private right,' whereas the Wiecking Case was held by the court to be 'one merely to enforce a private demand, and the interested parties are the ones who hold the claims, and to whom the warrant, if legal, should be issued, and as to whom an unfavorable judgment would be res judicata.'

The Pennock Case, supra, has also been followed in several later cases including the case of State ex rel. Hanna v. Lee, 124 Fla. 588, 169 So. 220.

But in the case of Holland v. State, 23 Fla. 123, 1 So. 521, 522 this court announced the broad general principle that 'where a statute imposes a power or duty upon a board of officers, and to execute such power or perform such duty it becomes necessary to obtain a writ of mandamus, they may apply for the same.' That was a case where Duval county, by its board of county commissioners, brought mandamus to compel the sheriff to deliver to the board certain prisoners under a statute which provided that the several counties of the state might employ all persons imprisoned in the jails under sentences of conviction for crime, or for failure to pay fine and costs imposed upon conviction, at hard labor upon the streets, roads, bridges, and public works in such counties, and to make all needful rules and regulations for their safe keeping and discipline while so employed. It was also held in that case that the county commissioners, and not the Attorney General, were the proper applicants for a mandamus against a sheriff obstructing the enforcement of said statute, because the duty or power of enforcing the statute devolved expressly upon the board of county commissioners of the county in whose jail the convicts were imprisoned.

In the case of State ex rel. Guyton v. Croom, 48 Fla. 176, 37 So. 303, it was held that the clerk of the circuit court was a proper party as relator in a mandamus proceeding to require the comptroller to honor a requisition by such clerk for the amount of money necessary for the payment of juror and witnesses to be paid by the state at any regular or special term of the circuit court under the provisions of the statute authorizing the clerk to make such requisition and making it the duty of the comptroller to honor the same. The case of Holland v. State, supra, was quoted and cited with approval.

The Holland Case was also quoted from and cited with approval in the case of State ex rel. White et al. v. MacGibbon, 79 Fla. 132, 84 So. 91, in which the principle enunciated in the Holland Case was applied to a somewhat different situation. In that case the county commissioners had ordered a warrant drawn in favor of one Hall, which warrant represented the purchase price of real estate to be acquired by such commissioners from Hall for the county. In that case this court held that the board of county commissioners were proper parties relators in mandamus proceedings to compel the circuit clerk, as ex officio clerk of the board, to draw and sign a warrant ordered by the board on the county funds with which to pay for and procure a title to a parcel of land purchased for the county by such board from which to procure material for the construction of county roads,...