State Ex Rel. Davidson v. Couch

• Decision Date: 12 December 1934
• Citation: 158 So. 103,117 Fla. 609
• Parties: STATE ex rel. DAVIDSON v. COUCH, City Manager, et al.
• Court: Florida Supreme Court

158 So. 103

117 Fla. 609

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

Florida Supreme Court, Division A.

December 12, 1934

Rehearing Denied Dec. 31, 1934.

Mandamus by the State, on the relation of Herbert M. Davidson, against M. S. Couch, as City Manager, and Francis Mills, as City Clerk and Collector of the City of Daytona Beach, Volusia County.

Peremptory writ awarded.

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

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

OPINION

ELLIS Justice.

This case is here now on the evidence as taken before Hon. George W. Jackson, Circuit Judge, acting under executive order of the Governor. This court, which in the exercise of its original jurisdiction issued the alternative writ of mandamus, finding, after the pleadings were settled, that it became necessary to take evidence as to the existence of certain facts averred by the respondents in their answer or return to the alternative writ, requested Hon. M. G. Rowe, Circuit Judge for Volusia county, to cause the testimony to be taken before him and make a certified report of the same to this court.

The report has been made and the testimony is before us under the certificate of Hon. George W. Jackson, Circuit Judge, acting in place of Hon. M. G. Rowe.

The law of the case has been settled by this court by the decisions of May 26, 1934, and August 6, 1934; the reports of those decisions being reported under the title of State ex rel. Davidson v. Couch (Fla.) 155 So. 153, and Id. (Fla.) 156 So. 297.

The matter now before us is the determination from the evidence reported of a question of fact.

In the last reported case we held in substance that certain averments of the respondent's answer required denial by the relator. One of the averments was that an agent of the relator, Davidson, named Lawton Carver, accompanied by Fred Hoegner, a public accountant, presented to the respondent Couch a written request from Davidson to Couch that he open the books of the city for inspection by Carver; that the respondent offered to comply with the request, and accompanied the two representatives of Davidson to the accounting department in the city hall, and showed the two persons the books and records, and directed each employee in the department to extend the privilege of free access to the books to Carver and Hoegner in order that they might make the examination desired; that Carver and Hoegner declined to do so, derided the respondent, and told him that they were not interested in examining the books.

The other averment, contained in paragraphs 8, 9, and 10 of the answer, was in effect that Davidson, the relator, later made another demand upon Couch for an inspection of the city's books by J. L. Robertson, an agent of Davidson; that Robertson had just completed an examination of the books on March 31, 1934, a short time before; that the second request which was made on April 3, 1934, was not made in good faith, but for the purpose of annoying the officials of the city government and to afford the relator an opportunity, in the event of refusal, to criticize, censure and condemn the respondents, and stir up personal and political antagonism among the citizens of Daytona Beach.

In the last opinion by this court it was stated that, if such averments were true, they tended to show that the relator was not denied the privilege secured to him by the statute, but that he in reality merely sought to harass and annoy the respondent and interfere with him and other officials in the discharge of their duties, and in such case the relator was not making a reasonable demand, but that his demand was, on the contrary, very unreasonable, which was an abuse of the privilege secured by the statute. See State ex rel. Davis v. McMillan, 49 Fla. 243, 38 So. 666, 6 Ann. Cas. 537.

The case was orally argued on the facts in October.

The defense interposed by the answer is an affirmative one, and the burden of establishing it was therefore on the respondents. The averments are of new matter not responsive to the writ, but in avoidance of it. They set up a state of facts intended to show that the demand of the relator was not in good faith, but for an ulterior purpose, and therefore not a reasonable demand. In such case the burden rested upon the respondent who set up such a defense to establish it by a preponderance of the evidence. See American Securities Co. v. Goldsberry, 69 Fla. 104, 123, 67 So. 862, 1 A. L R. 15; Tyler v. Toph, 51 Fla. 597, 40 So. 624; Wolkowsky v. Kirchick, 85 Fla. 210, 95 So. 611; Lonergan v. Peebles, 77 Fla. 188, 81 So. 514; Baylarian v....