City of Bradenton v. State Ex Rel. Perry

Citation118 Fla. 838,160 So. 506
PartiesCITY OF BRADENTON et al. v. STATE ex rel. PERRY.
Decision Date21 March 1935
CourtUnited States State Supreme Court of Florida

Rehearing Denied April 10, 1935.

En Banc.

Error to Circuit Court, Manatee County; W. T. Harrison, Judge.

Mandamus proceedings by the State, on the relation of James A. Perry against the City of Bradenton and others. To review a final judgment awarding peremptory writ of mandamus, defendants bring error.

Reversed and remanded.

BROWN J., dissenting in part.

COUNSEL

John B. Singeltary and Samuel Kirk, both of Bradenton, for plaintiffs in error.

Hill &amp Hill, of Tampa, for defendant in error.

OPINION

DAVIS Justice.

A peremptory writ of mandamus awarded the relator bondholder in this case required the respondents, mayor and members of the city council of the city of Bradenton, to forthwith and without delay convene and pass all necessary motions and resolutions, and to do and perform all other necessary acts and things for authorizing and directing the payment of certain matured principal and interest due and unpaid on the city's bonds and coupons set forth and described in detail in the peremptory writ. The peremptory writ further commanded the respondents, without delay, to authorize and direct the issuance of three certain particularly described warrants against certain particularly described city funds which the court had, after a trial, adjudged and determined to be surplus funds of the city that had not been otherwise 'used, appropriated, allocated or pledged' either at the time of the service of the alternative writ, or at the end of the fiscal year of June 30, 1933, or at the time of the taking of testimony in the case, for any other municipal purpose. The peremptory writ also contained a direction to the city clerk and to the mayor, both named as respondents in the proceeding, to forthwith sign and countersign each of the aforementioned warrants, which warrants were further ordered to be delivered upon the surrender to the city of the bonds and coupons sued upon. The case is before us on a writ of error to the final judgment awarding the peremptory writ.

A mandamus proceeding is a proceeding at law and the pleadings therein are subject to appropriate amendment in the interest of the administration of justice, whenever application therefor is timely made and the amendment proposed appears to be appropriate or necessary under the rules relating to the amendment of pleadings in other proceedings at law. See section 4295, C. G. L., section 2629, R. G. S., and cases cited thereunder. Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717; Hartman v. Greenhow, 102 U.S. 672, 26 L.Ed. 271; Moody v. Fleming, 4 Ga. 115, 48 Am. Dec. 210; Bear v. Board of Com'rs of Brunswick County, 124 N.C. 204, 32 S.E. 558, 70 Am. St. Rep. 586.

Mandamus anciently was a high prerogative writ, and it still preserves its character as such when not used for the redress of private wrongs but only in matters relating to the public. State ex rel. Moyer v. Baldwin, 77 Ohio St. 532, 83 N.E. 907, 19 L. R. A. (N. S.) 49, 12 Ann. Cas. 10. When authorized to be used for the redress of private wrongs a proceeding in mandamus is in all essential particulars a civil action at law. People v. Western Life Indemnity Co., 261 Ill. 513, 104 N.E. 219, Ann. Cas. 1915A, 266.

The petition or information in mandamus is, in law, a mere memorandum in the nature of an affidavit supplying the materials for the recitals of fact in the alternative writ, the function of the petition being to make known to the court the ground of complaint and the facts alleged in support of the relief sought. The petition is no part of the pleadings in the cause and becomes functus officio as soon as an alternative writ is issued on it. So the alternative writ of mandamus is in all respects the plaintiff's (relator's) declaration in the case and is subject to the same rules as to amendment and the like as are applicable to declarations in ordinary legal proceedings. State ex rel. Davidson v. Couch (Fla.) 156 So. 297.

The mandate of an alternative writ of mandamus is peculiarly within the control of the court, and the court may fashion it to suit the case made in the petition. The alternative writ is therefore not required to be strictly conformed to the petition, as is the peremptory writ to the alternative writ, but on the information disclosed by the petition the court may mould the alternative writ or direct it to be moulded to the case presented. State v. White Oak R. Co., 65 W.Va. 15, 64 S.E. 630, 28 L. R. A. (N. S.) 1013; State ex rel. Dox v. Board of Equalization of Johnson County, 10 Iowa, 157, 74 Am. Dec. 381.

At common law no trial of issues was had in mandamus cases, the return being taken as conclusive. The modern rule is to the effect that when an issue is found on matters contained in a return to an alternative writ of mandamus, it is tried in the ordinary way by the court, and in this state by the court without the intervention of a jury.

On the completion of the hearing of an application for a peremptory writ of mandamus the usual procedure is for the court to enter its formal judgment awarding or denying the peremptory writ. Such final judgment is usually separate and distinct from the peremptory writ itself, because the peremptory writ is supposed to issue as a consequence of the judgment awarding it. Such peremptory writ of mandamus must conform strictly to the alternative writ, and between the two there must be no variation. City of Bradenton v. State ex rel. Oliver (Fla.) 158 So. 165. See, also, Dane v. Derby, 54 Me. 95, 89 Am. Dec. 722; State ex rel. Dox v. Board of Equalization of Johnson County, 10 Iowa, 157, 74 Am. Dec. 381. [1]

It was therefore...

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