Gamble v. State

• Decision Date: 28 January 1911
• Citation: 54 So. 370,61 Fla. 233
• Parties: GAMBLE et al., Board of County Com'rs v. STATE ex rel. CASSADY et al.
• Court: Florida Supreme Court

54 So. 370

61 Fla. 233

GAMBLE et al., Board of County Com'rs v. STATE ex rel. CASSADY et al.

Florida Supreme Court, Division B.

January 28, 1911

Error to Circuit Court, Sumter County; W. S. Bullock, Judge.

Mandamus by the State, on the relation of M. A. Cassady and others against W. D. Gamble and others, as the Board of County Commissioners of Sumter County. Judgment for relators, and respondents bring error. Reversed, with directions to dismiss.

Syllabus by the Court

SYLLABUS

When the duty is not mandatory, but the officer or board is allowed a discretion as to when the ministerial act shall be performed, or whether it shall be performed at all, such performance will not be enforced by the writ of mandamus.

Under the provisions of section 808 of the General Statutes of 1906, as amended by chapter 5698, Laws of 1907, the question of the necessity for the erection of a courthouse in a county is left entirely to the judgment and discretion of a majority of the board of county commissioners, and where the record shows that no notice has been given or published, as required by such section of the law, to the effect that the question of the erection of a courthouse would be taken up and considered and acted upon by said board at their regular meeting next after such published notice, and that at no such meeting had it been determined by the majority of such board that the erection of such building was necessary, but, on the contrary, the majority of the board, by their answer to an alternative writ of mandamus, show that in their judgment it is inexpedient and unnecessary to erect such building at the place named in the alternative writ, their judgment and discretion in the matter will not be coerced or controlled by mandamus under such circumstances.

COUNSEL Richard McConathy, for plaintiffs in error.

J. B Gaines, for defendants in error.

OPINION

TAYLOR J.

On petition filed in the circuit court of Sumter county by the defendants in error, as relators below, against the plaintiffs in error, constituting the board of county commissioners of said county, the following alternative writ of mandamus was granted and issued:

'The State of Florida.

'To W. D. Gamble, J. W. Caruthers, Thomas Bevill, Simeon C. Caruthers, and James L. Kilpatrick, the Board of County Commissioners of Sumter County, Florida--Greeting:

'Whereas, it hath been made to appear to the judge of the circuit court of the Fifth judicial circuit of the state of Florida, in and for Sumter county:

'That M. A. Cassady, J. T. Williams, and D. L. Belton are citizens and taxpayers of the county of Sumter, and state of Florida, and registered voters of said Sumter county;

'That W. D. Gamble, J. W. Caruthers, Thomas Bevill, Simeon C. Caruthers, and James L. Kilpatrick constitute the board of county commissioners of the county of Sumter, state of Florida;

'That the town of Sumterville is the county site of said county, and so has been for many years;

'That on the 30th day of January, A. D. 1909, the courthouse of said Sumter county, situated in said town of Sumterville, was totally destroyed by fire;

'That since the said 30th day of January, A. D. 1909, the said county of Sumter has been without a courthouse, and without any buildings or other proper facilities for the holding of the terms of the circuit court required by law to be holden therein at the county site thereof, or for the safe care and preservation of the public records required by law to be kept at said county site, or for the proper and convenient transaction of the public business required by law to be there transacted;

'That at the adjourned meeting of the said board of county commissioners, held at said town of Sumterville on the 13th day of July, A. D. 1909, the said W. D. Gamble, J. W. Caruthers, Thomas Bevill, Simeon C. Caruthers, and James L. Kilpatrick, constituting said board, determined that it was expedient and necessary to erect a courthouse in and for said Sumter county, and gave notice that at the next regular meeting of said board of county commissioners, to be held on the 2d day of August, A. D. 1909, said board would receive and inspect plans and specifications for the erection of such courthouse;

'That at the said regular meeting thereof in August, A. D. 1909, the said board of county commissioners awarded a contract to F. M. Cleckler & Co., architects, to prepare and submit plans and specifications for such Sumter county courthouse;

'That afterwards plans and specifications for the erection of such courthouse for Sumter county were presented to said board of county commissioners, and at a special meeting thereof held on the 21st day of September, A. D. 1909, said board appointed three of its members, to wit, W. D. Gamble, the chairman thereof, and J. W. Caruthers and Thomas Bevill, to submit said plans and specifications to a consulting architect at Ocala, Florida, on the 28th and 29th days of September, A. D. 1909;

'That said committee did so submit said plans and specifications, and accepted certain changes therein as suggested by said consulting architect, and directed that said plans and specifications be changed accordingly, and your petitioners are informed and believe that the plans and specifications, changed as so required, have been delivered to said board of county commissioners;

'That at the adjourned meeting of said board of county commissioners held at Sumterville aforesaid on the 13th day of July, A. D. 1909, said board levied a tax of five mills per annum for five consecutive years for the purpose of building a courthouse at the county site of said Sumter county for said county;

'That, notwithstanding the premises, and the duty of the said board of county commissioners to build a courthouse for said Sumter county at the county site thereof for the care and preservation of the public records and the transaction of the public business, the said board of county commissioners of Sumter county, Florida, has failed and refused to build a courthouse in and for said county, and still fails and refuses so to do:

'Now, therefore, we, being willing that full and speedy justice should be done in the premises, do command you, W. D. Gamble, and you, J. W. Caruthers, and you, Thomas Bevill, and you, Simeon C. Caruthers, and you, James L. Kilpatrick, and every of you, that you do forthwith meet and convene as the board of county commissioners of Sumter county, Florida, at Sumterville, and proceed to build a courthouse for Sumter county at Sumterville, the county site of said county, in pursuance of and in accordance with the statute in such case made and provided, or that you appear before the judge of our circuit court sitting within and for the Fifth judicial circuit of the state of Florida, in the circuit court room in the courthouse at Ocala, Florida, on the 28th day of June, A. D. 1910, at 3 o'clock in the afternoon of said day, and show cause, if any you have, why you have not done so; and have you then and there this writ.'

To this alternative writ the respondents W. D. Gamble, J. W. Caruthers, and Simeon C. Caruthers answered as follows:

'Come now the defendants or respondents W. D. Gamble, J. W. Caruthers, Simeon C. Caruthers, and constituting a majority of the board of county commissioners for the said county of Sumter, in the state of Florida, and for return and answer to the alternative writ of mandamus, herein issued against them on the seventeenth day of June, nineteen hundred and ten, and show to the court:

'First. That these respondents are members of and constitute the board of county commissioners for the said county of Sumter.

'Second. That as alleged in said writ the courthouse for the said county of Sumter was destroyed by fire.

'Third. That subsequent to the destruction thereof the said board of county commissioners provided suitable temporary quarters for the transaction of the public business of the said county, in the town of Sumterville, the present county seat for said county, and that they fitted up same for its officers, and the said officers have since and are now occupying said quarters and therein transacting the business of said county, which said quarters are ample for the present business demands of the said county.

'Fourth. That since the destruction of the said courthouse several elections have been held within the said county to determine the location of a permanent site for the county aforesaid. That the first of said elections was held on the eighth day of July, 1909, that the second was held on the sixth day of Jan., 1910, and the third and last held on the sixth day of April, 1910.

'That in the election of the eighth day of July, 1909, the towns of Sumterville, Webster, and Coleman in said county were voted for, and that Sumterville received 132 votes, Webster received 389 votes, Coleman received 390 votes, and, no town having received a majority of all the votes cast, no election thereby resulted; that in the election held on the sixth day of January, A. D. 1910, the towns of Sumterville, Webster Wildwood, and Bushnell were voted for, and that therein Sumterville received 126 votes, Webster received 3 votes, Wildwood received 357 votes, and Bushnell received 254 votes, and that, no town in said election of January 6, 1910, having received a majority of all votes cast, no choice was thereby made; and that in the election held on the sixth day of April, 1910, the towns of Sumterville, Wildwood, Webster, Coleman, and Bushnell were voted for, and that Sumterville received therein 84 votes, Wildwood 73 votes, Webster 427 votes, and Bushnell 123 votes, and that, no town so voted for receiving a majority of the votes cast in the said election, no choice of a county site was therein...