D. C. SILVERS, CITY TREASURER, PLAINTIFF IN ERROR,
v.
STATE EX REL., STATE BANK OF NEW SMYRNA, DEFENDANT IN ERROR
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The Florida Supreme Court reversed a peremptory writ of mandamus compelling a city treasurer to pay municipal warrants, holding that the relator must demonstrate the respondent's ability to comply with the mandate, not merely a duty to pay.
A writ of mandamus may not issue without the relator first showing both the respondent's duty and ability to comply with the mandatory writ. The failure to allege or prove the treasurer's ability to pay constituted error in issuing both the alternative and peremptory writs.
“The relator must show the respondent's duty and ability to comply with the mandatory writ”
Establishes the dual requirement that mandamus requires proof of both duty and ability
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Join FLexlaw to unlock all legal intelligenceThe State Bank of New Smyrna presented twenty city warrants to D.C. Silvers, the City Treasurer of New Smyrna, for payment. The alternative writ alleg…
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Whitfield, J.
An alternative writ of mandamus was issued from the Circuit Court of Volusia County alleging that the relator bank duly presented twenty city warrants to tbe respondent city treasurer for payment; “that the said D.
C. Silvers at the time of such presentment did have in his possession, custody or control funds of the said city of New Smyrna sufficient to pay all, or at least a large part of said warrants, yet wholly neglected or refused to pay said warrants, or any of them.” The alternative writ commanded the city treasurer to pay the twenty warrants, or to show cause for not doing so. A demurrer to the alternative writ was interposed, one ground being that it is not alleged “that the respondent has the ability to perform the acts” commanded. The de murrer was overruled, an answer or return was made, and testimony taken. A peremptory writ of mandamus was issued, and the respondent took writ of error. It does not appear by the alternative writ that the respondent had funds to make the payments when the writ was issued, and the return supported by the evidence shows that the respondent did not have funds to pay the twenty warrants. There was consequently error in issuing the alternative writ and in awarding the peremptory writ of mandamus. The relator must show the respondent’s duty and ability to comply with the mandatory writ as was done in Ray v. Wilson, 29 Fla. 842, 10 South. Rep. 613, 14 L.
R. A.
773. See County Commissioners of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339, 29 L.
R. A. 416.
The judgment awarding the peremptory writ is reversed.
Shackleford, C. J., and Taylor, Cockrell and Hocker. J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Knott, 72 Fla. 176 (Fla. 1916)…e duty commanded is impossible of performance as in State ex rel. Bisbee, Jr. v. Inspectors of Election at Precinct No. 4 of Madison County, 17 Fla. 26; State ex rel. Dixon v. Trustees of the Internal Improvement Fund, 20 Fla. 402; Silvers v. State, 68 Fla. 368, 67 South. Rep. 143. Nor does the writ require an unlawful act as in County Commissioners of Columbia County v. King, 13 Fla. 451; State ex rel. Walker v. Stewart, 49 Fla. 259, 38 South. Rep. 600. In State ex rel. Bisbee, Jr. v. Inspectors of Elect…
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State ex rel. Hillsborough Cnty. v. Amos, 100 Fla. 1335 (Fla. 1930)…n a.writ of mandamus is sought to compel the comptroller to disburse moneys, his ability as well as his duty to comply with the command of a peremptory writ, and also relator’s right to have the duty performed, must clearly appear. Silvers v. State, 68 Fla. 368, 67 So. R. 143; State v. Gilmore, 85 Fla. 282, 95 So. R. 575. The requirement is not met in the absence of a clear showing that the funds sought are in the hands or under the control of the -Comptroller in such manner that he has the authority and a…
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Doyle Conner v. Mid-Florida Growers, Inc., 541 So. 2d 1252 (Fla. 2d DCA 1989)…efore the peremptory writ may issue. State ex rel Hillsborough County v. Amos, 100 Fla. 1335, 131 So. 122 (1930); State ex rel. Burr v. Tavares and Gulf Railroad Co., 78 Fla. 329, 82 So. 833 (1919); Silvers v. State ex rel. State Bank of New Smyrna, 68 Fla. 368, 67 So. 143 (1914). Appel-lees strongly argue that this issue, too, is undisputed, but unlike the obligation to pay that is not so as a matter of law. While some evidence may exist that favors appellees’ position, because we hold inadequate the proc…
Authorities Cited
- Cnty. Comm'rs of Duval Cnty. v. City of Jacksonville, 36 Fla. 196 (Fla. 1895)