State Ex Rel. Perkins v. Lee

• Decision Date: 27 February 1940
• Citation: 194 So. 315,142 Fla. 154
• Parties: STATE ex rel. PERKINS v. LEE, Comptroller.
• Court: Florida Supreme Court

194 So. 315

142 Fla. 154

STATE ex rel. PERKINS v. LEE, Comptroller.

Florida Supreme Court

February 27, 1940

Original proceeding in mandamus by the State on the relation of L. A Perkins, against J. M. Lee, as Comptroller of the State of Florida, for the issuance of a state warrant in payment of back salary, wherein respondent filed a motion to quash.

Motion denied, with leave to file return.

COUNSEL

Oven & Oven, of Tallahassee, for relator.

George Couper Gibbs, Atty. Gen., and Tyrus A Norwood, Asst. Atty. Gen., for respondent.

OPINION

PER CURIAM.

This is an original proceeding in mandamus instituted by L. A Perkins, former Marshal of the Supreme Court, against J. M Lee, as Comptroller, for the issuance of a state warrant in payment of certain back salary.

The petition recites that the position of Marshal of the Supreme Court was created by Chapter 12087, Acts 1927; that relator was appointed Marshal of the court immediately after said act became effective, and held the position until his retirement, due to ill health, on September 1, 1935; that relator retired under the provisions of the Act for Retirement of State Employees, at half pay, to-wit, $125; that while the salary of the Marshal during relator's active service was fixed by statute at $250 per month, yet from July 1, 1933, up to and including August 31, 1935, relator was paid only $200 per month, because 'the Legislature which convened in the year 1933 made a lump sum appropriation for the Supreme Court which was inadequate to pay in full the salaries of the officers and employees thereof and Relator was requested to draw only for the time the sum of $200.00 instead of his full pay of $250.00 per month.'; that relator applied to the Chief Justice, for the following order on the Comptroller, which was granted:

'Supreme Court of Florida

'Tallahassee

'November 15, 1939

'The State of Florida to

'To L. A. Perkins, Former Marshal, Dr.

'For Back Salary from July 1, 1933 to August 31, 1935, at $50.00 per month, $1300.00

'Approved: Glenn Terrell

'Chief Justice.'

That upon receipt of said order relator presented the same to respondent, J. M. Lee, as Comptroller, but the latter refused to honor it, contending he must have a 'court order' before he could pay it.

An alternative writ of mandamus issued commanding J. M. Lee, as Comptroller, to honor the order of the Chief Justice on him, in favor of L. A. Perkins, in the sum of $1,300, and commanding Respondent to issue and deliver to L. A. Perkins, a warrant on the State Treasurer in the sum of $1,300, payable to L. A. Perkins, out of the general revenue fund, or show cause before this court on a day certain why he failed and refused to do so.

A motion to quash, embodying four grounds, was filed by respondent Comptroller.

Respondent failed to argue the first three grounds of the motion to quash in his brief, and these grounds may be considered as abandoned. See J. W. McWilliams Co. v. Travers, 96 Fla. 203, 118 So. 54; McClure v. Century Estates, 96 Fla. 568, 120 So. 4; Atlantic Coast Line R. Co. v. Watkins, 97 Fla. 350, 121 So. 95; McSween v. State Live Stock Sanitary Board of Florida, 97 Fla. 749, 750, 122 So. 239, 125 So. 704, 65 A.L.R. 508; Burnett v. Greene, 97 Fla. 1007, 122 So. 570, 69 A.L.R. 244; Sapp v. Atlantic National Bank of Jacksonville, 105 Fla. 507, 141 So. 605; White v. Crandall, 105 Fla. 70, 137 So. 272, 143 So. 871; Bennett v. Senn, 106 Fla. 446, 144 So. 840; Florida Motor Lines v. Bradley, 121 Fla. 591, 164 So. 360.

The fourth ground of the motion to quash was:

'That it affirmatively appears from the allegations of said writ that the claim of Relator, if any, is barred by the statute of limitations.'

In support of this ground, respondent cites in his brief Sec. 4663, subd. 5, C.G.L., which provides:

'4663. (2939.) Limitations. Actions other than those for the recovery of real property can only be commenced as follows: * * *

'5. Within Three Years.--1. An action upon a liability created by statute, other than a penalty of forfeiture.'

The Article under which this section of the statute is found in the Compiled General Laws of 1927 and in the Revised General Statutes of 1920 is entitled 'Provisions Applicable to Actions Other Than Real Actions.' The title of this article indicates that all of the statutes of limitations found thereunder are applicable to those situations where it is necessary to institute an action to reduce the claim to judgment before it can be enforced. Such statutes of limitations do not cover a situation where salary is due a state officer or employee by virtue of a statute on the subject, in which case it is not necessary to reduce the claim to judgment before seeking to enforce it by mandamus against the proper officer, whose duty it is to issue the warrant. The claim for salary fixed by statute and due a state officer or employee under that statute is enforceable by mandamus, without first resorting to an action to determine the enforceability of the claim, whereas the actions referred to in the quoted statute embrace those liabilities created by statute where the claims must first be reduced to judgment before they may be enforced.

While mandamus is classed as a legal remedy, it is a remedial process, which is awarded, not as a matter of right, but in the exercise of a sound...