Scott v. State

• Citation: 43 Fla. 396,31 So. 244
• Parties: SCOTT et al., City Council v. STATE et rel. GROTHE.
• Decision Date: 19 November 1901
• Court: United States State Supreme Court of Florida

31 So. 244

43 Fla. 396

SCOTT et al., City Council v. STATE et rel. GROTHE.

Florida Supreme Court

November 19, 1901

Error to circuit court, Marion county; William A. Hocker, Judge.

Application by the state, on the relation of Otto Grothe, for writ of mandamus against G. S. Scott and others, composing the city council of the city of Ocala. Writ granted, and defendants bring error. Reversed.

Syllabus by the Court

SYLLABUS

1. An alternative writ of mandamus should make a clear prima facie case in favor of the relator by alleging all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him, as well as the facts which entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation.

2. Public officers must be presumed to have discharged their duty in the absence of a showing to the contrary.

3. Allegations which are equally consistent with a rightful or a wrongful refusal to act will not state a case for mandamus.

4. Respondents, as members of a city council, were judges of the qualification, election, and return of the members of such council. An alternative writ of mandamus to require them to recognize relator as such member, alleging that they refuse so to do, but not negativing the idea that such refusal is because, in the exercise of the discretion confided to them they have found that he is not entitled to such office states no case for mandamus.

COUNSEL

William Hocker, for plaintiffs in error.

L. N Green, for defendant in error.

OPINION Alternative writ of mandamus was issued from the court below to the plaintiffs in error as members of the city council of Ocala directing them to permit the relator Grothe, to assume the functions and powers and enter upon the duties of alderman at large of said city, or show cause to the contrary. The writ recited that said Grothe then was, and had been for more than five years, a resident of said city, and a qualified elector of same; that said city was a municipality under the laws of this state, entitled to all of the rights and privileges usual thereto; that at an election duly called and held by the said city on the second Tuesday in December, 1899, for the purpose, among other things, of selecting an alderman at large for said city whose term of office would begin on the second Tuesday in January following, the petitioner received a majority of the votes cast therefor, as shown by the official returns of said election, which returns were afterwards canvassed by the city council of said city, and declared by them to be correct; that afterwards, to wit, on or about February 7, 1900, the city clerk, in pursuance of a writ of mandamus issued by the court below, executed and delivered to relator a certificate in form required by section 52 of election ordinance of said city, showing the result of said election as aforesaid, 'which certificate relator alleges is made by said section 52 prima facie evidence of petitioner's (relator's) election to said office in all contests or investigation vestigation before said city council'; that on February 8, 1900, relator 'duly took the oath of office of alderman at large of said city of Ocala, as prescribed by section 663 of the Revised Statutes of Florida, before and administered by W. S. Bullock, who was at the time the mayor of said city, and duly qualified to administer said oath'; and that, notwithstanding the fact of the petitioner being fully qualified to assume the functions and powers and enter upon the duties of alderman at large of the said city of Ocala, as appears by the facts therein before set forth, and the further fact that the petitioner had filed his certificate of election hereinbefore mentioned, and also his written oath of office, with the clerk of said city, all of which was called to the attention of the city council, said council at a regular meeting held on the evening of March 6, 1900, refused to permit the petitioner to assume the powers or enter upon the several duties of alderman at large of said city of Ocala, although demanded by petitioner at the time. To this alternative writ a demurrer was interposed upon the grounds: First, no such office as alderman at large of the city of Ocala exists; second, the writ shows that relator never qualified as a member of said body as required by law; third, the writ fails to...