State v. Mcclung

Decision Date04 June 1904
Citation37 So. 51,47 Fla. 224
PartiesSTATE ex rel. HAMPTON v. McCLUNG.
CourtFlorida Supreme Court

In Banc. Error to Circuit Court, Hillsborough County; William S Bullock, Judge.

Application by the state, on the relation of Hiram J. Hampton, for writ of mandamus to J. W. McClung. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Under section 4, art. 5, Const. 1885, as amended (page 361 Acts 1901), the concurrence of a majority of the members of the Supreme Court, when sitting as a body, is necessary to a decision.

2. Where the members of the Supreme Court, sitting six members in a body, after full consultation are equally divided in opinion as to whether or not a judgment should be reversed and there is no prospect of an immediate change in the personnel of the court, it becomes the duty of those who favor reversal to vote with those who favor affirmance, and thereby affirm the judgment of the lower court. In such a case, while the judgment is a bar to another action for the same cause, yet, as no matters of law are decided so far as the question upon which the court is equally divided is concerned, the judgment possesses no dignity or force as a judicial precedent as to such matters.

COUNSEL Macfarlane & Glen, for plaintiff in error.

Phillips & Phillips, for defendant in error.

OPINION

CARTER J.

This writ of error was taken from a final judgment in mandamus rendered by the circuit court of Hillsborough county in favor of the defendnat in error. The questions presented arise upon the ruling granting a motion to quash the alternative writ. The object of the proceeding was to compel defendant, who was the principal of and a teacher in the Sixth Avenue Grammar School, a public school in Tampa, Hillsborough county, to reinstate the relator's son as a pupil in that school, the boy having been expelled by defendant because he had written and published in a newspaper certain criticisms of the teachers in the school. It does not appear that the pupil or the father ever sought reinstatement through the supervisor, superintendent, or school board, or that any of these officials had ever passed upon the matter of expulsion. While the members of this court are unanimously of the opinion that the defendant in error had no power or authority to permanently expel the pupil from the benefit of the public school on account of the published criticisms, and that mandamus will lie in a proper case to reinstate a pupil who has been wrongfully expelled, they are equally divided in opinion upon the question whether resort must first be had to the county school authorities before application can be made to the courts. The CHIEF JUSTICE, Mr. Justice COCKRELL, and Mr. Justice SHACKLEFORD entertain the view that the alternative writ was rightly quashed, because it failed to show that application had been made to the county school authorities for reinstatement, while Mr. Justice HOCKER, Mr. Justice WHITFIELD, and the writer are of a contrary opinion.

It was held in Fraser v. Willey, 2 Fla. 116, that, where the members of the court were equally divided in opinion judgment must be entered affirming the judgment of the court below, and that such was the rule of the common law; but the Constitution of 1885 (section 4, art. 5), as amended (see amendment, p. 361, Acts 1901), provides that 'the concurrence of a majority of the members of the court, sitting in any cause wherein the court shall sit as one body, shall be necessary to a decision,' and this requires a majority to concur in order to decide a cause either for...

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176 cases
  • Olds v. Alvord
    • United States
    • Florida Supreme Court
    • March 29, 1938
    ... ... personnel of the court, the decree should be affirmed ... Therefore it is considered, ordered, and adjudged under the ... authority of State ex rel. Hampton v. McClung, 47 ... Fla. 224, 37 So. 51, that the decree of the circuit court in ... this cause be, and the same is hereby, ... ...
  • New York Life Ins. Co. v. Oates
    • United States
    • Florida Supreme Court
    • April 5, 1935
    ... ... should be affirmed. Therefore it is considered, ordered, and ... adjudged under the authority of State ex rel. Hampton v ... McClung, 47 Fla. 224, 37 So. 51, that the decree of the ... circuit court in this cause be, and the same is hereby, ... ...
  • Olds v. Alvord
    • United States
    • Florida Supreme Court
    • June 20, 1939
    ...four participate, a decision may be made by a vote of three to one of the Justices sitting as a body in the cause. In State ex rel. v. McClung, 47 Fla. 224, 37 So. 51, 52, is stated that: 'Under our constitutional provision an equal division of opinion cannot have the effect, ipso facto, of......
  • State v. City of Tampa
    • United States
    • Florida Supreme Court
    • March 11, 1939
    ... ... as to whether the judgment should be affirmed or reversed, ... and there is no prospect of an immediate change in the ... personnel of the Court, the judgment should be affirmed, ... therefore it is considered, ordered and adjudged under the ... authority of State ex rel. Hampton v. McClung, 47 ... Fla. 224, 37 So. 51, that the judgment of the Circuit Court ... in this cause be and the same is hereby affirmed ... Affirmed ... TERRELL, ... C.J., and WHITFIELD, BROWN, BUFORD, CHAPMAN, and THOMAS, JJ., ... CONCURRING ... CHAPMAN, ... ...
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