State Ex Rel. Allen v. Rose

• Citation: 167 So. 21,123 Fla. 544
• Parties: STATE ex rel. ALLEN v. ROSE et al.
• Decision Date: 30 March 1936
• Court: United States State Supreme Court of Florida

167 So. 21

123 Fla. 544

STATE ex rel. ALLEN v. ROSE et al.

Florida Supreme Court

March 30, 1936

Original mandamus proceeding by the State, on the relation of Norval G. Allen, against Carl H. Rose and others, as and constituting the members of the state racing commission of the state of Florida, and others. On motion to quash alternative writ.

Motion granted with leave to relator to apply to amend.

COUNSEL Shutts & Bowen and Charles A. Carroll, all of Miami, William K. Whitfield, of Tallahassee, and Loftin Stokes & Calkins, of Miami, for relator.

T. G Futch, of Leesburg, and S. P. Robineau, of Miami, for respondents.

OPINION

BROWN Justice.

This is a mandamus proceeding brought by the relator against Carl G Rose and others, as and constituting the members of the state racing commission of the state of Florida, to compel the members of said commission 'to convene forthwith and, without any undue delay, by resolution revise your said rule which presently requires the registry of dogs in the American Kennel Club as a condition or qualification for the racing of such dogs in this state, so that the registration of such dogs in the National Coursing Association stud book shall also constitute sufficient registration qualifications for the racing of such dogs in this state; and that you the respondent Carl G. Rose Chairman of said Commission and you the respondent W. H. Donovan, Secretary of said Commission, do sign and attest any and all instruments and resolutions necessary to accomplish the same; OR, that you, the respondents, and each of you, in your capacities herein designated, do appear before this Court in the Court Room of this Court, at Tallahassee, Florida, on the 31st day of December, A. D. 1935, at nine-thirty o'clock in the forenoon thereof, and show cause, if any you have, why a peremptory writ of mandamus shall not issue from this Court commanding the same to be done; and have you then and there this writ.'

The allegations of fact in the alternative writ and the petition therefor are quite similar to those contained in the petition and writ which were before this court in the case of State ex rel. Mason et al. v. Rose et al., 165 So. 347, 348, and which are briefly summarized in the opinion in that case, which was decided by this court on January 22d of this year; the only material difference being that in the present petition and the alternative writ it is alleged that subsequent to the filing of the response in said case of State ex rel. Mason et al. v. Rose, the National Greyhound Breeders & Racing Association had severed all official connection with the National Coursing Association and that the two associations are now completely divorced the one from the other. But it appears that the members of the racing association are also members of the coursing association. We cannot see that this change in the situation affects the validity of the rule which was adopted on October 21, 1935, by the state racing commission, which rule is set out in the opinion of State ex rel. Mason v. Rose, above cited. In the opinion in that case this court by unanimous decision sustained the validity of the first sentence of the rule so adopted by the racing commission, and which reads as follows: 'The owner of any dog desiring to enter the same in any race meeting conducted under license from the Florida State Racing Commission shall submit to such licensee evidence showing qualifications of said dog to enter such racing meeting, together with evidence of its registry with the American Kennel Club.' But the command of the alternative writ is not that the state racing commission expunge or repeal that portion of the rule above quoted, but the command is that the state racing commission revise said rule so that the registration of dogs in the National Coursing Association stud book shall also constitute sufficient registration qualifications for the racing of dogs in this state. In other words, the relators are asking this court to require the state racing commission to meet and adopt a new rule by which registration of dogs in the National Coursing Association shall be given the same effect as a qualification for the racing of dogs in this state as is now accorded by the state commission's rule to registration in the American Kennel Club.

The Legislature has vested the state racing commission with the power to make rules and regulations appropriate to the accomplishment of the purposes of the act. That power is not vested in this court, and as the exercise of this rule-making power involves the exercise of the discretion and judgment of the board, this court cannot, by writ of mandamus or otherwise, dictate the rules of the board or command them to adopt any particular rule. This court has never gone that far, and to do so would be to depart from the fundamental principles which separate the judicial from the legislative, executive, and administrative departments of the government, as well as to go contrary to the well-settled principles applicable to mandamus proceedings. Thus, in 18 R.C.L. at page 116, it is said:

'It is a frequently asserted and universally recognized rule that mandamus only lies to enforce a ministerial act or duty; in this sense a ministerial duty may be briefly defined to be some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative. The distinction between merely ministerial and judicial and other official acts is that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial.'

To like effect, see 38 C.J. 593.

To hold otherwise would be to substitute the judgment and discretion of the court issuing the mandamus for that of the court officer, or official board to whom such judgment and discretion has been committed by law. Thus, while mandamus may be invoked to compel the exercise of discretion, it cannot compel such discretion to be exercised in any particular way. Commencing with the case of Towle v. State, 3 Fla. 202, this court has in a long line of cases steadily adhered to this principle. Among these cases is the case of Florida C. & P. R. Co. v. State, 31 Fla. 482, 13 So. 103, 20 L. R. A. 419, 34 Am.St.Rep. 30, in which the opinion was written by Mr. Justice Taylor. In one of our recent cases on this subject, State ex rel. Board of Commissioners v. Helseth et al., 104 Fla. 208, 140 So. 655, 660, Mr. Justice Davis, speaking for this court, said: 'A writ of mandamus is issued only to require the performance of a plain official duty on the part of respondents. It is issued to require the person to whom it is directed to perform some act which the law enjoins as a duty, and it confers no power and creates no duty of itself.' And in State v. Richards, 50 Fla. 284, 39 So. 152, this court held that mandamus lies to compel the performance of a ministerial duty, where such duty does not involve the exercise of discretion or judgment by the officer, and the relator has a clear legal right to have such duty performed. And we have hald in several cases that mandamus never lies to enforce the performance of private contracts. And in State v. Florida Coast Line Canal Co., 73 Fla. 1006, 75 So. 582, L.R.A. 1917F, 776, we held that the ordinary office of a writ of mandamus is to coerce the performance of single acts of specific and imperative duty and that the court would not undertake to compel the performance of a series of continuous acts where it is impossible for it to furnish that superintendence without which its mandate would become nugatory. We have also held in a long line of cases that the writ will not be issued in cases of doubtful right, but it must appear that the relator has a clear legal right to the performance by the respondent of the particular duty in question. Thus, it will not lie to enforce a right which is conditional or incomplete by reason of conditions precedent which have not been, or which are still to be performed by the petitioner. Lamb v. Harrison, 91 Fla. 927, 929, 108 So. 671. So here, it is not alleged that relator has applied for and been refused the right to register by the American Kennel Club, or that he would be refused registration if he should apply. Where the duty is discretionary, mandamus does not lie. State v. Atkinson, 97 Fla. 1032, 122 So. 794; Gamble v. State, 61 Fla. 233, 54 So. 370; State v. Barnes, 25 Fla. 298, 5 So. 722, 23 Am.St.Rep. 516. In the case of State ex rel. Pinellas County v. Sholtz et al., 115 Fla. 561, 155 So. 736, it was held that although the state board of administration had authority to exchange original bonds in the sinking fund of a county, and road and bridge districts located therein, for refunding bonds issued by such road and bridge district, there was no mandatory duty devolving upon such board to make such exchange simply because it was demanded by the...