State Ex Rel. Davidson v. Couch

• Decision Date: 13 May 1935
• Parties: STATE ex rel. DAVIDSON v. COUCH, City Manager, et al.
• Court: Florida Supreme Court

161 So. 431

119 Fla. 308

STATE ex rel. DAVIDSON v. COUCH, City Manager, et al.

Florida Supreme Court

May 13, 1935

Original proceeding by the State, on the relation of Herbert M Davision, against M. S. Couch, as City Manager of the City of Daytona Beach, and another, for mandamus. A return was made to the peremptory writ, and a rule in contempt was issued to the respondent.

Decree in accordance with opinion.

See also, 155 So. 153, 115 Fla. 115; 156 So. 297, 158 So. 103.

COUNSEL Green & West, of Daytona Beach, and W. J. Oven James Messer, Jr., and W. J. Oven, Jr., all of Tallahassee for relator.

Millard B. Conklin, and H. B. Hodgden, both of Daytona Beach, for respondents.

OPINION

PER CURIAM.

On January 2, 1935, this court issued a peremptory writ of mandamus; the command of the writ being as follows:

'Now, Therefore, we do command you, M. S. Couch, as City Manager, and Francis Mills as City Clerk and Collector, of the City of Daytona Beach, Volusia County, Florida, and each of you, individually and/or in your official capacity as aforesaid, that you do forthwith permit the said relator, Herbert M. Davidson, in person and by the said J. L. Robertson, his duly authorized agent or representative, to make such inspection and inspections from time to time during regular office hours, of any and all of the municipal records and books of account of said City of Daytona Beach, as he, the said Herbert M. Davidson, may so desire to inspect, within the terms and provisions of the law.

'And in this you shall in no wise omit, and how you shall have obeyed and executed this writ make known to this Court on or before the 9th day of April, A. D. 1935.'

On January 26, 1935, the respondents filed the following as a return to the peremptory writ:

'Comes now the respondents, M. S. Couch, as City Manager, and Francis Mills as City Clerk and Collector of the City of Daytona Beach, Volusia County, Florida, and make this their return to the peremptory writ of mandamus issued by the court on the 2nd day of January, A. D. 1935 served on the respondents by the Sheriff of Volusia County, Florida, at twelve o'clock noon on January 16th, A. D. 1935, and shows unto the court as follows, to-wit:

'1. That on to-wit: the 22nd day of January, A. D. 1935, they allowed J. L. Robertson, a certified public accountant and one C. S. Pierce, to the respondents unknown, to enter the City Hall of the City of Daytona Beach and made accessible to them all the books and records of the City of Daytona Beach; and shows that the said J. L. Robertson and C. S. Pierce have been engaged in inspecting and auditing the books and records from the 22nd day of January, A. D. 1935, until the present time.

'2. That the said J. L. Robertson and C. S. Pierce are engaged in inspecting and auditing the records and books of the City of Daytona Beach, Volusia County, Florida, for and on behalf of Herbert M. Davidson.

'3. That the respondents have fully complied with the peremptory writ of mandamus.

4. That in addition to complying with the peremptory writ of mandamus as aforesaid, these respondents have permitted the said C. S. Pierce to inspect the records in connection with the said J. L. Robertson.

'Dated at Daytona Beach, Volusia County, Florida, on this the 25th day of January, A. D. 1935.'

On May 1, 1935, the relator filed a motion to quash the purported return to the peremptory writ of mandamus heretofore issued herein, upon the following grounds, to wit:

'1. Said purported return was filed prematurely.

'2. Said purported return is insufficient and does not show a strict and literal compliance with the peremptory writ heretofore issued herein.

'3. Said purported return shows upon its face that the respondents have assumed the power of deciding as a matter of law what was or is a sufficient compliance with the said peremptory writ.

'4. Said purported return in effect evades the commands of the Court under the peremptory writ heretofore issued herein.

'5. Said purported return fails to show compliance by the respondents with the duty imposed upon them by statute as sought to be enforced by this Court through its peremptory writ of mandamus.'

'A certificate showing in general terms a performance of the several specific acts commanded to be done by a peremptory mandamus is the proper response to such writ. * * *

'A simple statement that all of the acts required to be performed by the peremptory writ have been performed, is all that is necessary. * * *

'If the statement or response is not true, then upon proper allegations and proofs, either a rule to show cause or an attachment for contempt will issue.' State ex rel Bisbee v. Board of County Canvassers, 17 Fla. 9, text 10, 22, 23. ...