City of Bradenton v. State Ex Rel. Oliver

• Decision Date: 11 December 1934
• Citation: 117 Fla. 578,158 So. 165
• Court: Florida Supreme Court
• Parties: CITY OF BRADENTON et al. v. STATE ex rel. OLIVER.

158 So. 165

117 Fla. 578

CITY OF BRADENTON et al. v. STATE ex rel. OLIVER.

Florida Supreme Court, Division A.

December 11, 1934

Rehearing Denied Jan. 7, 1935.

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

Mandamus by the State, on the relation of P. S. Oliver, against the City of Bradenton and others, to compel the respondent city officials to pay the amount due on bonds held by the relator. To review a judgment awarding a peremptory writ, respondents bring error.

Affirmed on condition of the payment by relator of the costs of the appeal, otherwise reversed.

COUNSEL John B. Singeltary, of Bradenton, for plaintiffs in error.

Francis C. Dart, of Sarasota, for defendant in error.

OPINION

DAVIS Chief Justice.

An alternative writ of mandamus issued commanding the respondents, city officials of Bradenton, to pay to relator the amount of $5,000 due on bonds held by him. The command of the writ also embraced a requirement that 'for want of sufficient funds to pay the amounts due the petitioner' the city officials do continue to collect the uncollected taxes, delinquent and current, then due, that had been levied by the city for payment of its bonded debt, and out of the moneys so collected pay in full the claim of relator before making payment of any other claim or claims of bondholders and also that in the event payment be not made in full by the end of the fiscal year, the city be required to include in its budget for the fiscal year a sufficient amount to cover any deficiency.

The case was tried on certain factual issues raised by a return upon which the court determined that there being sufficient applicable funds already on hand to pay relator's claim a peremptory writ would be issued, but limited said peremptory writ to a command for payment of funds on hand only notwithstanding the fact that the peremptory writ did not follow the alternative writ in that form of command.

The rule is that a peremptory writ must follow the alternative writ. So a peremptory writ must command exactly what the alternative writ has commanded--neither more nor different, nor less than the alternative writ. Merchants Broom Co. v. Butler, 70 Fla. 397, 70 So. 383; State ex rel. Hutchins v. Tucker, 106 Fla. 905, 143 So. 754; State ex rel. West v. Florida C. L. Canal & Transp Co., 73 Fla. 1006, 75 So. 582, L. R. A. 1917F, 776; State ex rel. Gillespie v. Thursby, 104 Fla. 103, 139 So. 372, 140 So. 775.

When the court will not enforce the mandate of an alternative writ as it is framed, a peremptory writ should not issue thereon, since the writ must be enforced as a whole if at all. State v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 So. 213, 13 L. R. A. (N. S.) 320, 12 Ann. Cas. 359.

In this case the alternative writ, as framed, violated the holding of this court in the case of McNally v. State ex rel. Bond Realization Corp., 112 Fla. 434, 150 So. 751, which was a case decided subsequent to the consideration of the present controversy in the court below. See, also, City of Winter Haven v. State ex rel. Baynes, 114 Fla. 527, 154 So. 879, and City of Wauchula v. State ex rel. First State Savings Bank (Fla.) 154 So. 889. So there was error committed by the circuit court in overruling respondent's demurrer and motion to quash the alternative writ in so far as the inappropriateness of the command of such writ is concerned.

But in awarding judgment for a peremptory writ limited to a single command to pay over certain moneys on hand to the relator, the circuit court has reached a result that is exactly the same it would have to reach should we reverse the judgment for the error committed and thereafter remand this case to the court below witn leave to amend and have a new peremptory writ in accordance with the alternative writ as amended, as was done in the case of McNally v. State ex rel. Bond Realization Corp., supra.

Therefore in view of the fact that the case below was decided by...