State ex rel. Stringer v. Lee

• Decision Date: 06 May 1941
• Citation: 147 Fla. 37,2 So.2d 127
• Parties: STATE ex rel. STRINGER v. LEE, State Comptroller.
• Court: Florida Supreme Court

2 So.2d 127

147 Fla. 37

STATE ex rel. STRINGER v. LEE, State Comptroller.

Florida Supreme Court

May 6, 1941

D. M. Johnson, of Brooksville, and Whitaker Brothers, of Tampa, for relator.

J. Tom Watson, Atty. Gen., and Nathan Cockrell, Asst. Atty. Gen for respondent.

CHAPMAN, Justice.

This is a case of original jurisdiction. In the petition for an alternative writ of mandamus filed in this court on the part of the Honorable Fred L. Stringer against J. M. Lee, as State Comptroller, it was made to appear that the relator was appointed and assumed the duties of Circuit Judge of the Twenty-fourth Judicial Circuit of Florida on May 11, 1927 and held the office of Circuit Judge continuously thereafter for a period of twelve years; that the relator, having held the office of Circuit Judge of the Twenty-fourth Judicial Circuit continuously for a period of twelve years and at the time of filing the said petition the relator having reached the age of sixty years and not having engaged in the practice of law since May 11, 1939, he was, as a matter of law eligible to participate in and receive two-thirds of the compensation paid to Circuit Judges at the time of his said retirement on May 11, 1939, and should receive the amount thereof during the remainder of his natural life and be paid to him by the State Comptroller on his monthly requisition out of the Circuit Judges Retirement Fund, as provided for by Chapter 19000, Acts of 1939, Laws of Florida.

The pertinent provisions of Chapter 19000, supra, for a decision of the case at bar, are viz:

'Section 1. Whenever any Circuit Judge has elected to take the benefits of this Act in accordance with the terms hereof, and has served as such Judge for twelve years or more or who is serving the twelfth continuous year as such Judge continuously or otherwise, and has attained the age of sixty years * * * such Judge may voluntarily resign and retire from his office, and upon such retirement he shall be paid, during the remainder of his natural life, on his own monthly requisition, from the Circuit Judges Retirement Fund hereinafter established, two-thirds of the compensation being paid to such Judge at the time of his resignation and retirement.

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'Section 4. No Judge drawing retirement compensation as provided in this Act shall engage in the practice of law.

'Section 5. Any Circuit Judge who may desire to take advantage of this Act shall, within ninety days after the passage and approval hereof, notify the State Comptroller and the State Treasurer to that effect * * *. Any person who may hereafter qualify as Circuit Judge shall be entitled to the benefits of this Act upon giving notice to the State Comptroller and the State Treasurer within ninety days after taking office, and after the giving of such notice, so long as such Circuit Judge shall hold office, two per centum shall be deducted from each installment of salary of such Circuit Judge, and said amount so deducted shall be deposited into said Circuit Judges Retirement Fund. The word salary as herein used shall be deemed to mean the total salary received by any Circuit Judge, including therein all amounts paid by any County of this State.

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'Section 7. There is hereby appropriated annually and shall be paid into said Circuit Judges Retirement Fund out of any funds in the State Treasury not otherwise appropriated sufficient money to meet the requirements of this Act, taking into account the sums paid into said Circuit Judges Retirement Fund under Section 5 hereof.'

The petition of the relator further alleged that on July 13, 1939, and within the ninety days succeeding the passage of the act as stated in Section 5 thereof, he did notify the respondent Lee, as State Comptroller, of his election to take the benefits of the act and simultaneously directed or instructed the Comptroller to deduct from the money due him as compensation as Circuit Judge the two per centum and to deposit the same with and to the credit of and to become a part of the Circuit Judges Retirement Fund. That the State Treasurer likewise, on July 14, 1939, was legally advised of the election of the relator to accept the benefits of the act.

From May 11, 1939, until July 20, 1939, the State Comptroller had in his custody and possession certain moneys due the relator by the State of Florida as salary as Circuit Judge and relator was of the opinion that the two per centum of his salary had been deducted by the Comptroller and deposited to the credit of the Circuit Judges Retirement Fund, but that since relator accepted receipt of a voucher for his salary on July 20, 1939, he has learned that the respondent failed or omitted to make the two per centum deduction. The relator alleged that there is now due him two-thirds of the compensation he was receiving monthly at the date of his retirement on May 11, 1939, to be paid in monthly payments by the State Comptroller out of the Circuit Judge Retirement Fund during the remainder of his natural life. It is alleged further that the relator has a clear legal right to participate in the Circuit Judge Retirement Fund and to receive compensation out of said fund, and that the law imposes upon the Comptroller the duty to issue vouchers drawn on said account in behalf of the relator from and after the date of his retirement on May 11, 1939, until the date of presenting his petition for an alternative writ of mandamus, and for that further period during the natural life of the relator. The respondent declined so to do.

The respondent moved this court to quash the alternative writ previously issued, on the grounds viz: (1) the facts alleged in the alternative writ fail to state a cause of action; (2) the alternative writ fails to show a legal right to any part of the Retirement Fund provided for by Chapter 19000, Laws of Florida, Acts of 1939; (3) that alternative writ shows that the relator failed to comply with the provision of Chapter 19000, supra; (4) that the relator was not a Circuit Judge on July 13, 1939; (5) that the relator did not retire from the office of Circuit Judge within the meaning of Chapter 19000, supra, so as to lawfully participate in the Circuit Judge Retirement Fund.

The foregoing, in part, constitutes a brief résumé or summary of the pleadings in the case at bar.

It is well established that a motion to quash an alternative writ of mandamus, in many respects like a demurrer to a declaration, admits as true all matters of fact as are sufficiently pleaded, but challenges the sufficiency of the allegations to warrant relief. See State v. Jacksonville Terminal Co., 71 Fla. 295, 71 So. 474; State ex rel. Women's Benefit Ass'n v. Port of Palm Beach Dist., 121 Fla. 746, 164 So. 851; State ex rel. Hendricks v. Thompson, 121 Fla. 613, 164 So. 364; State ex rel. Florida Nat. Bank v. Board of Administration, 115 Fla. 753, 154 So. 876, 156 So. 15; State ex rel. Clark Printing Co. v. Lee, 117 Fla. 779, 158 So. 461; State ex rel. Sherrill v. Milam, 113 Fla. 491, 153 So. 100, 125, 136; State ex rel. Sovereign Camp, W. O. W. v. Boring, 121 Fla. 781, 164 So. 859; State ex rel. Select Tenures, Inc. v. Raulerson, 129 Fla. 346, 176 So. 270.

This court will take judicial notice of the public records of commissions appearing on file in the office of Secretary of State. See Livingston v. State, 140 Fla. 749, 192 So. 327; State ex rel. Gibbs v. Couch, 139 Fla. 353, 190 So. 723; Conyears v. State ex rel. Conroy, 98 Fla. 417, 123 So. 817. The records appearing in the office of Secretary of State disclose that the term of office of Circuit Judge so held by the Honorable Fred L. Stringer expired on May 11, 1939, and a commission to said office of Circuit Judge previously held by him issued to the Honorable Fred R. Hocker under date of May 12, 1939. The records of the Secretary of State fail to disclose of resignation of the office of Circuit Judge and an acceptance thereof filed prior to the date of the expiration of the said commission, which was May 11, 1939.

Chapter 19000, supra, became a law on April 21, 1939, at a time when the Honorable Fred L. Stringer held the office of Circuit Judge. Section 5 of the Act provides that any Circuit Judge holding a commission as such on April 21, 1939, who may desire to accept the benefits of the act shall within ninety days after April 21, 1939, notify the State Comptroller and the State Treasurer of his intention or desire to accept all the benefits, advantages and privileges conferred by the terms thereof, and as long thereafter as such Circuit Judge shall hold office there shall be deducted two per cent of his salary as Circuit Judge and the amount so deducted shall be deposited into a special fund created or established by the terms of the act and identified in the offices of the Comptroller and Treasurer as the 'Circuit Judges Retirement Fund'.

Section 5 thereof further provides that any person, after the effective date of the act, receiving a commission as Circuit Judge, shall have ninety days from and after the date of the issuance thereof in which to give notice to the State Comptroller and Treasurer of his intention and desire to accept the benefits, advantages and privileges of the act and to authorize a deduction of two per cent of his annual salary, payable monthly, as Circuit Judge to be deposited to the credit of the Circuit Judges Retirement Fund, and shall continue to make payments to the said fund thereafter during the entire time that he holds the office of Circuit Judge.

Section 1 prescribes the existence of certain standards or controlling rules to be observed so as to entitle a Circuit Judge to the benefits of the act, which are viz.: (1) the judge must have served twelve continuous years, or more, or serving his twelfth...