United States v. City of West Palm Beach
Decision Date | 27 January 1938 |
Docket Number | No. 8299.,8299. |
Parties | UNITED STATES ex rel. JONES v. CITY OF WEST PALM BEACH et al. |
Court | U.S. Court of Appeals — Fifth Circuit |
L. O. Casey, Miller Walton, and Frank O. Spain, all of Miami, Fla., and J. Velma Keen, of Tallahassee, Fla., for appellant.
Paul W. Potter, of West Palm Beach, Fla., for appellees.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
The appellant moved for an alias peremptory writ of mandamus, and also for an order to show cause why the respondents should not be adjudged in contempt. The District Court sustained a demurrer to the first motion and overruled the second. The facts being undisputed, the question is whether the process prayed for should have been granted.
On October 16, 1935, a peremptory writ of mandamus was issued by the court below commanding appellees, before the 1st day of November, 1935, to levy and collect a tax for the said fiscal year, for the sole and exclusive use and benefit of the relators, upon all taxable property within the territorial limits of the City of West Palm Beach, Fla., sufficient to pay two certain named judgments of relators, with interest thereon.
The two judgments were rendered against the city, and aggregated $27,053.52, with interest upon each from date of its rendition. The writ further commanded that the proceeds of the tax be paid to relators' attorneys in satisfaction of the judgments. Pursuant to the commands of said peremptory writ, respondents made a levy and realized therefrom enough money to pay said judgments only in part, leaving a balance on each due and unpaid. It was served upon each of the respondents, but no certificate of compliance was filed by them, nor did they submit any return showing that they had obeyed its commands.
Where a peremptory writ of mandamus issues out of a court of competent jurisdiction, implicit obedience to the mandate is required. In case of a partial performance, an alias writ should be issued upon proper application therefor, since the respondents have no discretion to perform a part and omit the balance. The writ must be obeyed according to its terms. State ex rel. Durrance v. City of Homestead, 125 Fla. 105, 169 So. 593, 594. In the just cited case, the Supreme Court of Florida said:
In State v. McLin, 16 Fla. 17, 60, the court said:
In view of these and other decisions by the Supreme Court of Florida, as well as by other courts both state and federal, we think the court erred in denying appellant the process sought.1 Therefore, the judgment of the District Court is reversed and the cause remanded with directions to issue the order to show cause and the alias peremptory writ of mandamus, and for such further proceedings as may be proper and not inconsistent with this opinion.
Reversed.
My differences with the majority arise not out of anything said or quoted in the opinion, except the conclusion that "the court erred in denying appellant the process sought."
If the case before us for decision were the case the majority opinion assumes it is, a simple request for an alias peremptory writ exactly conforming to the original writ, to do or finish what the original peremptory writ had commanded, Clearwater v. State, 108 Fla. 623, 147 So. 459; Bradentown v. State, 117 Fla. 578, 158 So. 165; Pritchard v. State, 111 Fla. 122, 149 So. 58; State v....
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