Ball v. State

• Decision Date: 31 January 1933
• Citation: 146 So. 830,108 Fla. 163
• Parties: BALL et al. v. STATE ex rel. HARVEY.
• Court: Florida Supreme Court

146 So. 830

108 Fla. 163

BALL et al. v. STATE ex rel. HARVEY.

Florida Supreme Court

January 31, 1933

Error to Circuit Court, Washington County; D. J. Jones, Judge.

Mandamus proceeding by the State, on the relation of W. W. Harvey against N. A. Ball, Chairman, and others, as members of the Council of the City of Chipley, in Washington County. To review the judgment awarding a peremptory writ of mandamus defendants bring error.

Reversed and remanded.

COUNSEL Cecil A. Rountree, of Chipley, for plaintiffs in error.

James N. Daniel, of Chipley, for defendant in error.

OPINION

BUFORD Justice.

Defendant in error, Harvey, was petitioner in the court below in mandamus proceedings to compel plaintiff in error to pay to him the salary which he claimed due him as marshal of the city of Chipley, Fla.

The record shows that in June, 1930, the city council appointed petitioner marshal of the city for a term of one year, pursuant to chapter 12592, Sp. Acts of 1927 that he qualified and entered upon the duties of the office and performed the same until January 1, 1931, when the mayor, newly elected and taking office, after notice to the marshal, requested the city council to remove said marshal and appoint another in his place. A majority of the city council met and complied with the mayor's request.

The record shows that the petitioner was unlawfully removed from his office, but that he surrendered the office at the time, and made no offer to perform the duties of the office, and made no demand for salary until after the term for which he was elected by the city council had expired, to wit, the 3d day of July, 1931, when he filed his petition in mandamus. In the meantime the salary of $100 per month had been regularly paid to the de facto marshal without objections from petitioner. Petitioner instituted no proceedings to test his title to the office. All of these facts were alleged in the answer filed by respondents, to which a demurrer was filed and overruled. Thereupon, the respondents declining to answer further, peremptory writ was issued, to which writ of error was sued out.

It is well settled that mandamus will not lie unless the petitioner has a clear legal right to the performance of the particular duty sought to be coerced, nor will it lie where there are collateral questions requiring prior adjudication. Leatherman, Clerk, v. Schwab, 98 Fla. 885, 124 So. 459; Myers v. State ex rel. Thompson, 81 Fla. 32, 87 So. 80. In Gentry-Futch Co. v. Gentry, 90 Fla. 595, 106 So. 473, 476, we said:

'Mandamus lies to seat the person entitled to an [public or corporate] office * * * but it is not appropriate where there is any question as to the right to the office.'

The demurrer to the answer should have been overruled, first, because the allegations of the answer showed abandonment of the office on the part of the petitioner; second, the answer showed payment by respondents of the salary to another party for the full period claimed by the petitioner; and, third, the allegations showed that the right of petitioner to the office for the period for which the salary was claimed had not been established in a court of competent jurisdiction.

In Myers v. State ex rel. Thompson, supra, we said:

'As a legal right of the relator to the writ does not clearly appear on the face of the pleadings on which the writ was ordered, and as questions involved should be adjudicated in other appropriate proceedings, the peremptory writ of mandamus should not have been issued, but the alternative writ should have been dismissed.'

In Lee v. Mayor, etc., of City of Wilmington, 1 Marv. (Del.) 65, 40 A. 663, the court said:

'A former officer of a municipal corporation who has been dispossessed by a subsequent appointee cannot maintain assumpsit against it for salary during the time he is not the incumbent, until his right to the office has been adjudicated.

'The right of claimant of a municipal office cannot be adjudicated in an action to recover salary for a period during which he is not in possession; that question can only be considered in a direct proceeding, in which the people and the incumbent of the office are parties.

'Where a former occupant of a municipal office is illegally ejected, and a successor placed in possession, who is recognized as such officer, performing the duties of the office, and drawing the salary, without contest or resistance, he is the incumbent and officer de facto.'

In Selby v. City of Portland, 14 Or. 243, 12 P. 377, 378, 58 Am. Rep. 307, the Supreme Court of Oregon, in an opinion prepared by Mr. Justice Thayer, dealt with the law applicable to this case, and arrived at what appears to be the prevailing rule of law in such matters. There the writer said:

'It looks very much to me as though the public confidence was abused in the transaction, and that the appellant and his assignors were shamefully trifled with; but it occurs to my mind that they neglected to take proper steps in the matter, and have lost the remedy they could have invoked successfully. They might have commenced an action in the nature of a quo warranto against the persons designated to succeed them, and been reinstated in their positions; or, probably they might have sued out a writ of review, obtained a reversal of the action of the mayor and common council in the affair, and been restored to their positions in that way. And it was held by the court of appeals of New York in Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787 , where a policeman of that city had been duly appointed to that office, and entered upon the performance of his duties, was attempted to be removed by the police commissioners, and upon certiorari the order of removal was reversed, and he was restored to his office, that he could recover against the city his salary which accrued between the time of the order of removal and the restoration, and without any abatement on account of earnings realized from his former trade, resumed during the interim. Under that decision these parties could possibly have recovered their salaries after a successful prosecution of a writ of review. I cannot, however, believe that they can maintain an action therefor while other parties occupy their places, have qualified as policemen, and are recognized by the city government as such. It seems very evident to me that their right to the office would have to be judicially determined in a proper proceeding, before such an action could be sustained.

'The appellant's counsel have cited a number of authorities to show that an action of the character of the one in question can be maintained; but not one of them, as I can discover, was in a case where the plaintiff had been put out of the office, and another person been formally installed, and in the discharge of the duties thereof, unless there had been an adjudication in a direct proceeding declaring him lawfully entitled to it, and the incumbent a usurper.

'The appellant's counsel claim that the salary is attached to the office, which is true. It is an incident to the office, and does not depend upon contract. It is fixed by law. But it does not follow that the title to the office can be tried in a collateral action. Dillon, in his work on Municipal Corporations, (3d Ed.) says, in section 831: 'Thus the salary or fees of an officer of a municipal or public corporation may, like other debts, be recovered by an action at law against the corporation. This, ordinarily, is the remedy, and not mandamus; but, if the officer cannot sue the corporation, he may, where entitled, compel payment by means of this writ, unless another is in possession under color of right; in which case the title to the office cannot, ordinarily, be determined on mandamus, or in any collateral proceeding.'

'It may be said that the action of the mayor and common council in the premises was a flagrant violation of the law, and of the rights of these officials; but, nevertheless, other persons were nominated in their places, confirmed by the common council, took the oath, were regularly inducted into their places, and became officers de facto in their stead. The title to the office necessarily had to be tried as preliminary to the right of action which could have been brought in the lowest court of the state having civil jurisdiction. The parties ousted could, as their salaries accrued, monthly, have sued therefor in justice's court, whose jurisdiction to try the title to the office would have to be conceded, the same as that of the circuit court, under the same form of action, not only in c...