54 Fla. 199 | Fla. | 1907
— 'The defendant in error, C. N. Edwards; as relator instituted mandamus proceedings in the circuit court of Lake county against the plaintiffs in error in their official capacity as mayor and members of the municipal council of the town of Leesburg, to compel them to' restore him to- the office of marshall and inspector of said town, of which office, the alternative writ alleged, he had been wrongfully and illegally deprived by being wrongfully and illegally removed therefrom, by said city council. The respondents moved to quash the alternative writ among divers other grounds upon the following:
“6. The mandatory part of said writ requires more to be done than is justified by the recitals therein contained.”
“7. The allegations of said writ are vague, indefinite and uncertain in that it does not state- what are the profits, emoluments or advantages belonging or pertaining to the office of marshall and inspector which are required to be restored to the relator.”
“8. The allegations of said writ are vague, indefinite and uncertain, in that it does not state what profits, emoluments or advantages belong- or appertain to said office since the 9th day of July, A. D. 1906.”
“g. The mandatory clause of said writ is so- vague, indefinite and uncertain as to require respondents to look dehors the writ to ascertain the exact duty required of them.”
This motion to- quash was overruled by the court.
The ruling of the court denying the motion of respondents to quash the alternative writ, and the judgment awarding the peremptory writ are assigned as error.
The court below erred in its denial of the motion to quash the alternative writ.
The only recital in the alternative writ in reference to the profits and emoluments of the office of which the relator was alleged to have been deprived by the alleged wrongful removal, is as follows: “By means whereof the said C. N. Edwards has been wholly deprived of the exercise of the said offices of marshall and inspector of the town of Leesburg, Florida;' and wholly deprived of the profits, emoluments and advantages thereunto belonging and appertaining both at the present time and since the 9th day of July, 1906, to his manifest injury and damage, as by his petition we have understood.” And the mandatory part of the alternative writ commanded the respondents as follows: “We therefore * * * command you that immediately after receipt of this writ, you do, 'without further excuse or delay, restore, or cause to be restored the said C. N. Edwards into the said offices of marshall and' inspector of the said town of Leesburg, Florida, together with all the profits, emoluments and advantages thereunto belonging and appertaining, together with all such profits, emoluments and advantages from the 9th day of July, 1906, or signify to us cause to the -contrary,” etc. The -peremptory writ follows this command of the alternative writ. It will be observed front the above quoted recital of the alternative writ and from the command of said writ as well as from the command of the peremptory writ that no definite
It follows from what has been said that the judgment of the court below must be and is hereby reversed ^ at the cost of the defendant in error; and inasmuch as the term of office of the relator to which he seeks restoration, as appears from the record, has long since expired, and that an)'- judgment herein in his favor would now be fruitless and unavailing- (2 Spelling on Injunctions and other Extra. Rem. §1377; State ex rel. Vereen v. Commissioners of Marion County, 27 Fla. 438, 8 South. Rep. 749), it is further ordered that the Circuit Court shall dismiss such proceeding at the cost of the relator.
Hooker and Parkhill, JJ., concur;
Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.