State v. Johnson

• Decision Date: 27 February 1895
• Parties: STATE ex rel. ATTORNEY GENERAL v. JOHNSON.
• Court: Florida Supreme Court

16 So. 786

35 Fla. 2

STATE ex rel. ATTORNEY GENERAL v. JOHNSON.

Florida Supreme Court

February 27, 1895

Application by the state, on the relation of the attorney general, for a writ of mandamus against James E. Johnson. Motion to quash alternative writ denied, demurrer to return sustained, and peremptory writ awarded.

Syllabus by the Court

SYLLABUS

1. In an alternative writ of mandamus, upon the part of the state to compel the surrender by a prior incumbent of a public office of the office room and the records, books, and papers of the same, it is not absolutely necessary to allege in specific words that the term of office of such prior incumbent has expired. While the writ would be more exact and definite if the specific words were used, their use is not essential, and words fully equivalent, from which the expiration of the term follows as a necessary consequence are sufficient.

2. Allegations, contained in such an alternative writ of mandamus as is mentioned in preceding headnote, to the effect that at a general election held in accordance with the provisions of law in this state, in the county of Duval, one J. F. G. was a candidate for the office of tax collector of said county, and was voted for at said election for said office; that the returns of said election were duly canvassed by the proper canvassing board of said county, and that he was shown by such canvass to have received the highest number of votes cast for any person for such office, and was declared elected to the same; that the supervisor of registration of such county gave him a certificate of his election, certifying that, according to said returns and canvass, he was at said election elected tax collector of said county for the term prescribed by law, beginning on the first Tuesday after the first Monday in January, A. D. 1895 (which precedes the date of said writ); that he had duly given his bond and qualified for said office in all respects and that the governor of the state, under his hand and the great seal of the state, did commission him to be such tax collector, according to the constitution and laws of this state, for the term of two years from the first Tuesday after the first Monday in January, A. D. 1895, and until his successor is qualified; that the incumbent of said office prior to the term for which said J. F. G. was commissioned as aforesaid, was J. E. J., the defendant,--make a sufficient prima facie showing that the term of said J. E. J. as tax collector has expired.

3. The allegations of the alternative writ of mandamus set out in the preceding headnote are sufficient prima facie allegations of an election in fact of J. F. G. as tax collector of Duval county.

4. Section 2 of article 6 of the constitution of this state gives the legislature power to provide for the returns of elections, and with it, as a necessary incident to that power, the authority to appoint and designate some officer, or board of officers, to aggregate the returns, and ascertain and declare the result of such elections.

5. Where the result of an election held under the provisions of law has been ascertained and declared by the proper canvassing board, their official announcement is of binding force and efficacy as to the fact of an actual election, until reversed or set aside by a court of competent jurisdiction.

6. Upon an application for mandamus, the court will not go behind the certificate of election and try the actual title to the office.

7. It is not necessary, in a mandamus on behalf of the state, to allege the eligibility of the person stated therein to have been elected to the office, for the reason that to try such an issue would be to determine the title to the office upon proceedings in mandamus, which the courts will never do.

8. A prima facie title to public office confers a right to exercise its functions, and a right to the possession of the insignia and property thereof, and on such title the courts will compel a delivery of such insignia and property for the time being, without adjudicating the actual title.

9. The commission of the governor of this state is the highest and best evidence of who is the officer, until on a quo warranto, or proceedings in the nature of a quo warranto, it is annulled by a judicial determination.

10. Where one person has the certificate of election and the commission to hold an office, he is prima facie the officer de jure; and a mandamus to put him into possession of the property of the same cannot be defeated by a claim that the election was illegal, and that the incumbent is entitled to hold as an officer de facto until a proper election and qualification of his successor.

COUNSEL William B. Lamar, Atty. Gen., and Fred. T. Myers, for plaintiff.

A. W. Cockrell & Son and J. M. Barrs, for defendant.

OPINION

LIDDON, J.

The state of Florida, by the attorney general, filed in this court a petition for a mandamus against the defendant. Said petition alleged, in substance, that at the general election, under the laws of said state, held in and for the county of Duval on the 2d day of October, A. D. 1894, John F. Geiger was a candidate for the office of tax collector of said county, and was voted for at said election for said office; that the returns of said election were afterwards, to wit, on the 4th day of October, A. D. 1894, canvassed by the county judge, the supervisor of registration, and the chairman of the board of county commissioners of said county, sitting as a county canvassing board of elections, in pursuance of law, and the said John F. Geiger was by said canvass shown to have received the highest number of votes cast for any person for said office of tax collector, and was declared elected to said office; that the supervisor of registration for said county, afterwards, to wit, on the 6th day of October, A. D. 1894, did make, sign, and deliver to the said John F. Geiger a certificate of election, certifying that on the 4th day of October, 1894, W. H. Baker, county judge of Duval county, Fla., E. J. E. McLaurin, supervisor of registration of said county, and Charles Marvin, chairman of the board of county commissioners of said county, did publicly canvass the returns of the election districts of said county, filed with the said county judge and said supervisor of registration, as required by law, showing the votes cast for tax collector of said county at an election held therefor on the 2d day of October, 1894, and did declare the result thereof, and, according to said returns and canvass, John F. Geiger received the highest number of votes cast for any person for said office of tax collector, and that according to said election returns and canvass, and the result declared as aforesaid, the said John F. Geiger was at said election elected tax collector of said county for the term prescribed by law, and beginning the first Tuesday after the first Monday in January, A. D. 1895; that said Geiger had duly filed his bond as such tax collector, which had been duly approved by the proper authorities, and that a commission under the great seal of the state, in due form of law, had been issued by the governor to said Geiger, for the term of two years from the first Tuesday after the first Monday in January, 1895, and until his successor is qualified; that the incumbent of said office, prior to the commencement of the term for which the said Geiger was commissioned as aforesaid, was one James E. Johnson, who, upon the demand of to said Geiger, refused, and still refuses, to surrender to him the possession of the office in the courthouse of said county of Duval set apart for the use of the tax collector, and refused, and still refuses, to deliver to the said Geiger the assessment rolls, books, records, papers, and files of the said office of tax collector, although demand has been made on him for their delivery; that the action of said Johnson, as stated, is delaying and hindering the collection of the state's revenues in said county, and is likely to produce embarrassment and confusion in the collection of the same; and that there was no other remedy to compel the delivery of said assessment rolls, etc., except by the extraordinary writ of mandamus. The petition prayed for a writ of mandamus commanding the defendant forthwith to surrender to the said Geiger the office in the courthouse of Duval county set apart for the use of the tax collector, and to deliver to said Geiger the assessment rolls, books, records, papers, and files belonging or appertaining to said office, which are now in his possession. Attached to the petition was a copy of the certificate of the supervisor of registration of Duval county, and of the commission of Geiger as tax collector, referred to in the same. Upon this petition, an alternative writ of mandamus, conforming to the petition and in the usual form, issued.

Upon the return of the alternative writ, the defendant moved the court to quash the same, upon the following grounds, to wit (1) It does not appear from the allegations of said writ, with legal or other sufficiency or certainty, that this movant's incumbency, therein set up, of the said office, has expired. (2) That the allegations of said writ sufficiently show that this movant is the incumbent of said office, exercising the function thereof, under and by virtue of his election, qualification, and entry thereon, for a term not yet expired. (3) The allegations of said writ do not set up, issuably or traversably, the facts upon which, as matter of law, may be predicated the expiration of the incumbency of this movant, or the tenure by which this movant holds said office. (4) The said writ does not show that J. F. Geiger, to whom, by the command of said writ, this movant is required to surrender said...