Mandamus
by the state, on the relation of W. B. Lamar, attorney
general, against James E. Johnson to compel defendant to
deliver to Edmund W. Gillen, as tax collector for Duval
county, the office of county tax collector of said county
and all the property, books, and papers belonging to the
same. Defendant moved to quash the proceedings. Motion
overruled.
The
following, omitting the certificates of the secretary of
state to Exhibits A and B, are the pleadings upon the motion
to quash the alternative writ herein:
'In
the supreme court, state of Florida. June term, A. D. 1892.
'The
state of Florida to James E. Johnson, greeting:
'Whereas,
it has been suggested by the petition of the attorney
general of the state of Florida that heretofore, to wit, on
the 29th day of October, A. D. 1892, his excellency,
Francis P. Fleming, governor of Florida, suspended from the
office of tax collector of Duval county, until the
adjournment of the next session of the senate, you, the
said James E. Johnson, for neglect of duty in office, of
which suspension you had due notice, and by said act of
suspension you, the said James E. Johnson, were prohibited
from performing the duties or exercising the functions of
the said office for the period aforesaid, a copy of said
order of suspension being hereto attached, marked
'Exhibit A.' That afterwards, on the 26th day of
November, A. D. 1892, one Edmund W. Gillen was, after
appointment by the governor aforesaid, duly commissioned by
the governor of Florida to be tax collector in and for
Duval county until the adjournment of the next session of
the senate; a copy of said commission being hereto
attached, marked 'Exhibit B.' That you, the said
James E. Johnson, though so suspended from said office of
tax collector in and for Duval county, still retain
exclusive possession of the room or office set apart in
Duval county as the county tax collector's office, and
still retain in your possession, custody, and control and
property belonging to the said office, consisting, as
nearly as can be described, of the furniture belonging to
the tax collector's office in and for Duval county and
of the tax books or assessment rolls of said county for the
year 1892, with the tax assessor's warrant annexed,
authorizing and empowering the collection of state and
county taxes, and the tax books or assessment rolls of all
preceding years, belonging to said office, also books
containing blank capitation-tax receipts heretofore sent to
you, as such former tax collector of Duval county, by the
comptroller of the state of Florida, all books and stubs
containing blank tax receipts for payment of state and
county taxes, and of all other books and papers
appertaining to the said office of tax collector in and for
Duval county, Florida; and that you, the said James E.
Johnson, having possession of the said room or office, and
the books, papers, and furniture aforesaid, refuse to
deliver possession and the custody and control of the same
to the said Edmund W. Gillen, commissioned to be tax
collector aforesaid, though the said Gillen has made formal
demand of you, the said James E. Johnson, for the
possession, custody, and control of the same, as will
appear by affidavit of Edmund W. Gillen, hereto annexed,
marked 'Exhibit C:' Now, therefore, we being
willing that full and speedy justice be done in the
premises, do command you, the said James E. Jonson, to
forth with turn over and deliver to the said Edmund W.
Gillen, as tax collector in and for Duval county, Florida,
the room or office of the county tax collector of Duval
county, Florida, and all furniture belonging to the county
tax collector's room or office, and the tax book or
assessment roll for the year A. D. 1892, with the tax
assessor's warrant annexed, authorizing and empowering
the collection of state and county taxes, belonging to the
said office of tax collector of Duval county, Florida, and
the tax books or assessment rolls of all preceding years
belonging to said office, and all book or books containing
blank capitation-tax receipts heretofore sent to you, the
said James E. Johnson, as such former tax collector of
Duval county, by the comptroller of the state of Florida,
and all books and stubs containing blank tax receipts for
the payment of state and county taxes, and all stubs
showing tax receipts issued for payment of state and county
taxes, and all other books and papers appertaining to the
said office of tax collector in and for Duval county,
Florida, all of which, viz. the said room or office
aforesaid, the said books, stubs, receipts, and furniture,
you, the said James E. Johnson, now have in your
possession, custody, and control, and refuse to turn over
and deliver the same to the said Edmund W. Gillen,
commissioned to be tax collector of Duval county, Florida,
as aforesaid, and to the possession, custody, and control
of which the said Edmund W. Gillen, as tax collector in and
for Duval county, state of Florida, is entitled, or that
you do show cause why you have not done so before the
supreme court of the state of Florida, at Tallahassee, the
capital, at 10 o'clock on Thursday, the eighth day of
December, A. D. 1892, and have then and there this writ.
Witness, the Honorable George P. Raney, chief justice of
the supreme court of the state of Florida, and the seal of
said supreme court affixed by James B. Whitfield, clerk of
said supreme court, at Tallahassee, the capital, this, the
thirtieth day of November, A. D. 1892. JAMES B. WHITFIELD,
Clerk of Supreme Court, State of Florida.
'EXHIBIT
A.
'State
of Florida, Executive Department.
'Whereas,
it has been made to appear that James E. Johnson, tax
collector of the county of Duval, state of Florida, is guilty
of neglect of duty in office, in this, to wit, that on the 3d
day of September, 1892, a few minutes after 12 o'clock of
said day, being the last day on which poll taxes could be
paid to enable a person to vote for state and county officers
at the next general election thereafter, Porcher L'Engle,
in behalf of William Marvin and a large number of other
persons, citizens of Duval county, tendered to the said James
E. Johnson, tax collector, at his office, in the city of
Jacksonville, in said county, the money to pay the poll taxes
for the years 1890 and 1891 for such citizens, but the said
James E. Johnson then and there refused to receive the money
so tendered, or note the payment of the poll taxes of the
said citizens, for which the same was tendered, whereby they
were denied the right of suffrage at such general election.
Now, therefore, I, Francis P. Fleming, governor of the state
of Florida, by virtue of the power and authority vested in me
by the constitution of said state, have suspended, and do
hereby suspend, the said James E. Johnson from the office of
tax collector of Duval county, Florida, until the adjournment
of the next session of the senate; and the said James E.
Johnson is prohibited from performing the duties or
exercising the functions of the said office for the period
aforesaid. In testimony whereof, I have hereunto set my hand
and have caused the great seal of the state to be affixed
hereunto, at Tallahassee, the capital, this 29th day of
October, A. D. 1892. [L. S.] FRANCIS P FLEMING, Governor.
'By
the Governor. Attest: JNO. L. CRAWFORD, Secretary of State.
'EXHIBIT
B.
'Executive
department. In the name and under the authority of the state
of Florida.
'Whereas,
Edmund W. Gillen hath been duly appointed by the governor,
according to the constitution and laws of said state, to be
tax collector in and for Duval county until the adjournment
of the next session of the senate: Now, therefore, reposing
especial trust and confidence in the loyalty, patriotism,
fidelity, and prudence of the said Gillen, I, Francis P.
Fleming, governor of the state of Florida, under and by
virtue of the authority vested in me by the constitution and
laws of the said state, do hereby commission the said Gillen
to be such tax collector, according to the laws and
constitution of said state, for the time aforesaid, and, in
the name of the people of the state of Florida, to have,
hold, and exercise such office, and all the powers
appertaining thereto, and to perform the duties thereof, and
to enjoy all the privileges and benefits of the same, in
accordance with the requirements of law. In testimony
whereof, I do hereunto set my hand and cause to be affixed
the great seal of the state, at Tallahassee, the capital,
this 26th day of November, A. D. 1892, and of the
Independence of the United States the one hundred and
severnteenth year. [Seal.] FRANCIS P. FLEMING, Governor of
Florida.
'By
the Governor. Attest: JNO. L. CRAWFORD, Secretary of State.
'EXHIBIT
C.
'Jacksonville,
Fla., Nov. 28th, 1892.
'To
James E. Johnson, Esq., City, president:
'Dear
Sir: This is to notify you that I have been commissioned by
the governor of the state of Florida as tax collector of
Duval county, which commission bears date the 26th of
November, 1892, and runs from the date thereof until the
adjournment of the next session of the senate of said state,
which said commission I hereby exhibit to you for your
inspection; and thereupon I make this my formal demand upon
you to deliver to me possession of the office of tax
collector of said county at once, together with all the
books, papers, furniture, and everything else appertaining
thereto. Very respectfully yours, EDMUND W. GILLEN.
'Being
sworn, Edmund W. Gillen says that he delivered in person to
James E. Johnson the demand of which the foregoing is a true
copy, on this, the 28th day of November, 1892, and that the
said Johnson refused to comply with...
