State Ex Rel. Klemm v. Baskin

• Decision Date: 03 August 1933
• Citation: 111 Fla. 667,150 So. 517
• Parties: STATE ex rel. KLEMM v. BASKIN, Mayor-Commissioner, et al.
• Court: Florida Supreme Court

150 So. 517

111 Fla. 667

STATE ex rel. KLEMM v. BASKIN, Mayor-Commissioner, et al.

Florida Supreme Court, Division A.

August 3, 1933

Rehearing Denied Sept. 16, 1933.

Error to Circuit Court, Pinellas County; O. L. Dayton, Judge.

Mandamus proceeding by the State, on the relation of A. M. Klemm, a widow, against H. J. Baskin, as Mayor-Commissioner, and others. To review a judgment refusing a peremptory writ of mandamus, plaintiff brings error.

Reversed.

BROWN J., dissenting.

COUNSEL Touchton & Crittenden, of Winter Haven, and W H. Poe, of Orlando, for plaintiff in error.

Jones &amp White, of Clearwater, for defendants in error.

OPINION

PER CURIAM.

Writ of error was sued out in this case to review a judgment of the circuit court of Pinellas county refusing to award a peremptory writ of mandamus in a case brought by a bondholder of the city of Clearwater to enforce certain statutory duties of the city to make provision for the payment of certain bonds of the city of Clearwater alleged to be held by relator.

The judgment appealed from should be reversed on the authority of the following cases decided by this court since the judgment in the lower court was rendered on March 14, 1932: City of Palmetto v. Klemm, 146 So. 558; State ex rel Aldrich v. Mitchell, 146 So. 207; Humphreys v. State, 145 So. 858. In the case of State v. Mitchell, supra, this court distinguished the previous decisions in State ex rel. East Side Bank v. Holloway, 142 So. 221, and State ex rel. Gillespie v. Thursby, 140 So. 775, and pointed out why such holdings were not applicable to a case like that now before us, which is no different in principle from the status of things presented in State ex rel. Aldrich v. Mitchell, supra, wherein we held the issuance of a peremptory writ was improperly denied.

Whatever discretion, as a general rule, may be vested in the courts to withhold peremptory writs of mandamus as a matter of discretion in certain cases, such discretion can never be exercised by any court of this state to the extent of impairing the obligations of valid contracts, in violation of the state and Federal Constitutions, both of which guarantee a remedy in the courts to all who have lawful contractual obligations to enforce against those who have breached a statutory duty, the performance of which was promised in the terms of an express agreement, the rights growing out of which are enforceable as a matter of legal right, by mandamus, as is the case with public securities. City of Galena v. United States, 72 U.S. (5 Wall.) 705, 18 L.Ed. 560.

The command of the alternative writ is for a levy of taxes for the fiscal year 1931-1932 so as to include in the budget for that year a sum sufficient to pay the bonds and coupons owned by relatrix. The time for compliance with the alternative writ exactly as drafted is long since past, because the budget of the city for the fiscal year 1931-1932 has long since been completed, as the record shows.

But the rule in cases like this is that, where a legal right has been once duly and timely asserted, and such right has been thereafter judicially upheld upon an appeal from a judgment of the court below which has interrupted the enforcement of that right in the original judicial proceedings instituted for the purpose of having it coerced by legal means, the judgment on appeal may subsequently be carried into effect on a remand of the case, by such an appropriate modification of the decree or judgment in the lower court as may be necessary to give effect to the appellate court's judgment in the light of the changed conditions that have been caused by the lapse of time intervening the original institution of the suit and the ultimate judgment of the appellate court. The appellate jurisdiction of the Supreme Court in a mandamus case is not ousted by the mere expiration of the time set for doing the original thing commanded, where means still exist for the carrying into effect what is necessary to be done by respondent for relator's benefit, in order that relator may have the fruits of his successful appeal. Southern Pacific Co. v. Interstate Commerce Commission, 219 U.S. 433, 31 S.Ct. 288, 55 L.Ed. 283; Leonard v. Earle, 279 U.S. 392, 49 S.Ct. 372, 73...