State Ex Rel. Davis v. City of Avon Park

CourtUnited States State Supreme Court of Florida
Citation158 So. 159,117 Fla. 565
PartiesSTATE ex rel. DAVIS, Atty. Gen., et al. v. CITY OF AVON PARK.
Decision Date11 December 1934

En Banc.

On relator's petition for reconsideration of the court's former action in dismissing the proceeding.

Cause reinstated and commissioner appointed to take evidence and make report.

For former opinions, see 108 Fla. 641, 149 So. 409; 151 So. 701.

COUNSEL Walker & Willson, of Bartow, Giles & Gurney, of Orlando, and Mabry, Reaves, Carlton & White, of Tampa, for relators.

S Colquitt Pardee, of Avon Park, for respondent.


BROWN Justice.

This is a quo warranto proceeding instituted in this court by the Attorney General, joined by numerous corelators, seeking to oust the city of Avon Park from the exercise of municipal powers over certain lands alleged to have been unconstitutionally added to or embraced within the limits of the city by legislative enactment. By a divided court, the demurrer of the relators to the city's amended answer was overruled, and the court then held that as the answer presented issues of fact which the parties had the right to have determined by a jury trial, and that inasmuch as 'this court is without facilities for impanelling juries and conducting jury trials,' the cause would be dismissed 'without prejudice to the parties to institute like proceedings in the circuit court for the purpose of determining and having adjudicated the questions involved.' And it was so ordered, and rehearing denied. See State v. City of Avon Park, 108 Fla. 641, 149 So. 409. This action of the court was adhered to in its opinion and judgment overruling an extraordinary petition for rehearing, on December 22, 1933. State ex rel. Davis v City of Avon Park (Fla.) 151 So. 701. But during the same term, on supplemental petition of the relators for a reconsideration by the court of its said action on the ground, among others, that for this court to dismiss this proceeding and relegate the relators to the institution of a new action in the circuit court would for certain reasons therein stated seriously prejudice the rights of the corelators, this court, on January 8, 1934 made an order reinstating the cause for further proceedings, and later, on May 15, 1934, entered an order permitting the parties to file briefs on the question of whether the cause should proceed to a hearing by this court, or the circuit court, on the facts relevant to the amended information and the amended answer thereto.

Although this court was not compelled, merely because disputed issues of fact had arisen, to dismiss the original proceedings in this court and leave the parties to pursue their remedy by a new proceeding of like nature in the circuit court, it had the power, and it was within its discretion, so to do. In the case of State ex rel. Ellis, Attorney General, v. Tampa Water Works Co., 57 Fla. 533, 48 So. 639, 641, 22 L. R. A. (N. S.) 680, where similar action was taken in a quo warranto case begun in this court, it was held, in the language of the opinion on petition for rehearing, that:

'This disposition of the cause leaves the remaining issues tendered purely issues of fact in the trial of which the parties have in the circuit court the right to a trial by jury, and inasmuch as such issues can be far more conveniently, economically, and effectually tried and disposed of in the circuit court, the said cause is hereby dismissed from this court, but without prejudice to the right of the relator or of the municipality of the city of Tampa to proceed against the respondent in the circuit court for Hillsborough county for relief by mandamus or by quo warranto, or under the provisions of the statute in such cases provided, as may be advised, to enforce alleged duties of the respondent or to test the question of forfeiture of its franchise by nonuser or misuser; the state of Florida to pay the cost of this proceeding here.' (Italics supplied.)

In a short per curiam opinion in State ex rel. Landis v. Gamble, 112 Fla. 2, 150 So. 130, a quo warranto case, the proceeding in this court was dismissed without prejudice 'with leave to reinstitute and try the same in the circuit court on the pleadings as settled by this court.' It was observed in the opinion that this court had the power to conduct a jury trial here if it thought such action necessary or advisable 'for good and sufficient reasons affecting the general state welfare,' but that in ordinary cases the appropriate order was the one made in that case. No authorities were cited.

The case of State ex rel. Watkins v. Fernandez, 106 Fla. 779, 143 So. 638, 641, was an original proceeding in quo warranto in which a motion to quash was denied, and it appearing that testimony would have to be taken, the cause was dismissed 'with leave to the relator to pursue his remedy in the circuit court.' In the opinion of Mr. Justice Terrell in that case, it was said:

'While we hold that relator brought the proper action to determine the right of respondent as nominee for constable to the Fifth justice district of Hillsborough County, we think that there are patent reasons why we should not retain jurisdiction of the cause. In the first place, the circuit court has coordinate jurisdiction with this court to grant the writ, the issues are such that testimony will have to be taken, and they may present themselves in such a way as to command a jury. This court has never empaneled a jury, and has no facilities for taking testimony. It was never intended that it perform the function of a nisi prius court; this being peculiarly within the province of the circuit court. If we take original jurisdiction in this contest, other matters of similar character will press us for attention to such an extent that the appellate work will be very much delayed.

'This is primarily a court of appeals, and, while it has concurrent jurisdiction with the circuit courts to issue writs of quo warranto, it has consistently declined to do so except in cases where the public interest demanded, and then on an agreed statement of facts. Either party has the right to appeal if aggrieved at the judgment when rendered by the circuit court.'

The Fernandez Case was cited with approval, and the same order made, in State ex rel. Gillespie v. Mobley (Fla.) 144 So. 840, though that was a mandamus case, in which no jury trial was demandable, but it appeared therein that testimony would have to be taken 'which can much more conveniently and economically be taken by the circuit court.'

The case of State ex rel. v. County Commissioners, 21 Fla. 1, was a mandamus proceeding instituted in this court. The relators took issue upon four paragraphs of the return, and on these issues of fact the respondents demanded a trial by jury, which demand the relators opposed. The motion for a jury was denied. Chief Justice Randall filed the following brief opinion on that point (21 Fla. page 19):

'On the motion of respondents that a jury be called to try the issues of fact. Statute of 9 Anne refers to specific cases, viz.: controversies between persons claiming offices and archives.

'The principles of pleading in such cases provided in that act have been adopted by the courts generally.

'At common law no issues were tried. The return was conclusive. But since that act issues have been allowed to be made up and tried.

'We have no statute requiring or authorizing such issues to be tried by a jury in this court. No such statute existed when the Constitution was adopted.

'Constitutional jurisdiction of the writ is conferred on this court, and the proceeding is at common law.

'The right of trial by jury preserved by the Constitution is not extended to cases where it did not exist before.

'Statute 9 Anne, ch. 20; High Mand., p. 647; High Ex. Remedies, § 448; Universal Church v. Trustees of Section Twenty-Nine Columbia Tp., 6 Ohio, 446 ; Chumasero v. Potts, 2 Mont. 265; Castle v. Lawlor, 47 Conn. 340.'

The trial of the issues of fact then proceeded. Witnesses were examined orally and documentary evidence introduced. But that was a case wherein the parties would not have been entitled to a jury, even if the case had been instituted in the circuit court. It has been held in a few jurisdictions that a trial by jury in mandamus cases is a constitutional right, but in most of the states a jury trial is denied. 18 R. C. L. 355; 35 C.J. 179, § 64. 'Where jurisdiction of the proceeding is vested in the Supreme Court by the constitution of the State, it is held to be constitutional recognition that the facts shall be determined by the court without the intervention of a jury.' 35 C.J. 179, § 63. In the case of State ex rel. Knott v. Crawford, 72 Fla. 232, 73 So. 584, a mandamus case, the issues of fact were tried by this court without a jury.

On the other hand, this court has held that, in quo warranto proceedings, in the circuit court, the right to a trial by jury on issues of fact exists, and is guaranteed by the third section of our Declaration of Rights. Buckman v. State, 34 Fla. 48, 15 So. 697, 24 L. R. A. 806; Van Dorn v. State, 34 Fla. 62, 15 So. 701. The question of a right to a jury trial in quo warranto proceedings instituted in this court was not involved in those cases. See 17 Encyc. Pldg. & Prac. 479, and 51 C.J. 359, and note in 5 Ann. Cas. page 641, from which it appears that the holding in the Buckman and Van Dorn Cases is in line with the weight of authority.

But no such right to a jury trial in quo warranto cases exists in this court. As was said by Chief Justice Randall in the mandamus case above cited and quoted from: 'We have no statute requiring or authorizing such issues to be tried by a jury in this court. No such statute existed when the Constitution was adopted.' And, as was...

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