State v. Bird

• Decision Date: 12 October 1925
• Parties: STATE ex rel. BASKIN et al. v. BIRD, County Judge.
• Court: Florida Supreme Court

105 So. 821

90 Fla. 328

STATE ex rel. BASKIN et al. v. BIRD, County Judge.

Florida Supreme Court, Division A.

October 12, 1925

Error to Circuit Court, Pinellas County; Freeman P. Lane, Judge.

Suit by the State, on the relation of J. D. Baskin and another, for mandamus to be directed to John U. Bird, as County Judge of Pinellas County. Defendant's demurrer to an alternative writ was overruled, and a peremptory writ was ordered to be issued, and defendant brings error.

Order overruling demurrer and ordering peremptory writ reversed.

(Syllabus by the Court.)

COUNSEL

John U. Bird, of Clearwater, for plaintiff in error.

C. O Andrews, of Orlando, and H. H. Baskin, of Clearwater, for defendants in error.

OPINION

WEST C.J.

This case is here on writ of error to the circuit court of Pinellas county. The alternative writ, omitting the formal commencement and the command, is as follows:

'J D. Baskin and W. A. Davis, relators, by and through their solicitor, H. H. Baskin, bring this their bill for mandamus against John U. Bird, as county judge of Plnellas county, Fla., and respectfully present to the court the following facts:

'(1) That relators J. D. Baskin and W. A. Davis are citizens and residents of said county, and are doing in the city of Clearwater in said county, a general real estate business, and both of whom are actively participating in the brokerage business of the copartnership of J. D. Baskin, Real Estate.

'(2) That the said John U. Bird is a duly qualified county judge of said county, and is acting as such, and all of the things hereinafter complained of and all of the duties herein alleged are ministerial acts by the law required to be performed by the said John U. Bird, and none of which facts (?) are judicial in their nature. That the said John U. Bird as county judge is by law required to accept and receive application for broker's license and to collect the fees provided by said law.

'(3) That the said J. D. Baskin and the said W. A. Davis are doing a real estate business as copartners. That the said J. D. Baskin made application on September 30, 1925, for year beginning October 1, 1925, to the said John U. Bird, judge as aforesaid, for a broker's license, and paid to the said John U. Bird the sum of $18, being the amount required by law. That the said J. D. Baskin and the said W. A. Davis, as a copartnership, doing business under the name and style of J. D. Baskin, Real Estate, on September 30, 1925, for year beginning October 1, 1925, applied for a broker's license designating the said W. A. Davis as salesman to act for the partnership, and they tendered the said application and the sum of $18 to the said John U. Bird.

'(4) The said John U. Bird, judge as aforesaid, without any lawful warrant or authority, declined and refused to receive, accept, and consider the said application of the said J. D. Baskin and W. A. Davis for a license as a copartnership as aforesaid, and he refused to receive and accept the sum of $18, the lawful fees therefor, and he assigned as his sole and only reason therefor that the said W. A. Davis had not applied for a license as a real estate broker, nor had he paid the said sum of $18 required by the statute for a broker's license as an individual. The relators allege that the said W. A. Davis had and has not paid or tendered to the said judge the sum of $18 for a broker's license for himself.

'Wherefore the relator prays that the state's most gracious writ of mandamus do issue commanding, requiring, and coercing the said John U. Bird, as aforesaid respondent herein, to receive, accept, and consider the said application of the said J. D. Baskin and W. A. Davis for a broker's license for J. D. Baskin, Real Estate, as aforesaid.'

The writ commanded the respondent as county judge to entertain and consider the application of J. D. Baskin and W. A. Davis, in the name of J. D. Baskin, Real Estate, a copartnership, for a broker's license to sell real estate or to show cause why he did not or should not be required to do so.

The writ was demurred to upon the grounds that it does not set forth facts that entitle the relators to the relief prayed that it does not appear from its allegations that relators have complied with the law relative to the issuance of licenses as real estate brokers; that it affirmatively appears from the writ that relators are not entitled to the relief prayed; that it affirmatively appears that W. A. Davis has not tendered to respondent the license fee required by the laws before a license can be issued to the relators as copartners, 'because section 12 of chapter 10233 of the Laws of Florida have not been complied with, in that the said J. D. Baskin and the said W. A. Davis...