35 Fla. 2 | Fla. | 1895
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 2nd 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 fourth 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, Florida, 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 2nd day of October, 1894, and -did declare the result thereof, and according to said returns and canvass John F. Geiger received the high
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 suf'. ficiency or certainty that this moveant’s incumbency, therein set up, of the said office, has expired. 2. That the allegations of said writ sufficiently show that this moveant 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 moveant, or the tenure by which this moveant holds said office. 4. The said writ does not show that J. P. .Geiger, to whom by the command of said writ, this moveant is required to surrender said office; was in fact elected Tax Collector of Duval county, at the election therein alleged to have been held, by a plurality of the votes by ballot of the qualified electors of Duval county, nor that he was in fact declared or certificated as elected by any tribunal or person invested by law with authority to determine that he was so elected. 5. Said writ does not show that the said Geiger was in fact eligible to said office. 6. Said writ does not set up any facts
The said defendant also at the same time, but without waiving his motion to quash, made a return to the alternative writ. The substance of that portion of this return which it is thought necessary to set out here was as follows : That he has not surrendered to said John P. Gfeiger the office in the court house of Duval county, Florida, set apart for the use of the Tax Collector, and he has not delivered to the said John F. G-eiger the assessment rolls, books, records, papers and files belonging or appertaining to the said office of Tax Collector of Duval county, which were in his possession, or any of them, and for cause why he has not done so shows as follows: 1. That the respondent is the duly qualified, elected, commissioned and acting Tax Collector of Duval county, Florida, elected to said office at the general election held under the laws of Florida in and for Duval county in October, 1892, duly qualified, commissioned and inducted into office for the term of two years from the first Tuesday after the first Monday in January, 1898, and until his successor is duly qualified, and he now holds the said office in the court house, books and papers, together with the right and title to the office of Tax Collector of Duval county. 2. That the said pretended election claimed to have been had and held on the 2nd day of October, 1894, was not in fact an election of said Greiger by a plurality of the votes of the qualified electors of Duval county.
The remainder of the return set out at considerable length and detail the reasons upon which the defend
The relator demurred to this return upon the grounds (1) that it was not responsive to the writ; (2) that the facts therein set up are irrelevant and immaterial in this proceeding, and (3) that it attempts to bring into issue and to try in this cause the title to the office of Tax Collector of Duval county, which is not permissible in a proceeding of this character. The cause came •on for hearing upon both of the pending matters ; the motion to quash the alternative writ, and the demurrer to the defendant’s return being submitted together.
The first three grounds of the motion to quash the alternative writ may be considered together. The gist of all of them is, that it does not sufficiently appear from the writ that the term of office of the defendant has expired. It is true that the writ does not allege in specific words that the term of the defendant has expired, but we think it does sufficiently state facts fully equivalent to an allegation of the expiration of the term of the defendant. It would have perhaps
Examining the writ we learn that a general election under the laws of this State was held in the county of 'Duval on the 2d day of October, A. D. 1894, and that 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 duly canvassed by the proper canvassing-board of said county, and he was shown by such canvass to have received the highest number of votes cast for any person for said office, and was declared elected to the same ; that the Supervisor of Registration gave Mm a certificate of his election, certifying that according to said returns and canvass the said Geiger was, at said election, elected Tax Collector of said county for the term prescribed by law, and beginning on the-first Tuesday after the first Monday in January, A. D. 1895 ; that said Geiger had duly given his bond and qualified for said office in all other 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, to have, hold, and exercise said office, etc. ; that the incumbent of said office prior to the term for which said Geiger was commissioned as aforesaid was James E. Johnson,, the defendant. We think these allegations in connection with the provisions of our Constitution and statutes, as to the election and length of term of Tax Collectors, make a sufficient prima facie showing for
What has been said in reference to the three first grounds and the authorities cited, applies to the fourth and fifth grounds. The fourth ground being, that the writ contained no allegation of Geiger’s actual election ; and the fifth being that the writ contained no allegation that Geiger was in fact eligible to said office.. That the eligibility of the relator will not be determined in a proceeding by mandamus. See State ex rel. Atherton vs. Sherwood, 15 Minn., 221, S. C., 2 Am. Rep., 116, cited with approval in State ex rel. vs. Johnson, 30 Fla., tex 494. See also State ex rel. Bisbee vs. Board of State Canvassers, 17 Fla., 29, text 32.
The sixth ground was, that the writ does not set up any facts upon which, because of the refusal of the defendant to surrender said office, or the books and papers pertaining thereto, embarrassment, hindrance or delay in collecting the State and county taxes in said county may be predicated. Conceding, but not deciding, that it is necessary that the alternative writ should make such a showing, we think it is sufficiently made in the writ. The writ contains special allegations to that effect. Even if there were no special allegations, we do not see how embarrassment, hindrance
We next consider the return: Two principal, points of contention are argued in connection with the return— (1) That the defendant is in office claiming to hold over until his successor is elected as a matter of fact and duly qualified, i. e., is an officer de facto, and (2) hat the said pretended election claimed to have been had and held on the 2nd day of October, 1894, was not in fact an election of said Geiger by a plurality of the votes of the qualified electors of Duval county. Reversing the order in which the respective contentions are presented, we will consider the last one first. It has already been said in this State, borrowing the language of a decision from a sister State, that “a prima facie title to a public office confers a right to exercise its functions, and a right to the possessi on of the insignia and property thereof. On this prima facie title the court will compel a delivery of the insignia and property, that the functions and duties of the office may be exercised. * * * * * The commission of the Governor, whether granted on the certificate of election, or a certificate of vacancy, is the highest and best evidence of who is the officer, until on a quo warranto, or a proceeding in the nature of quo warranto, it is annulled by a judicial determination. It is this commission which imparts to the
We will now recur to the first contention made under the defendant’s return, that the writ does not lie against him because of his claim that his successor has not been actually elected and duly qualified he is entitled to hold over until such election and qualification, and that his right to continue in office can only be inquired into by quo warranto, or proceedings in the nature of a quo warranto. We think this point was practically involved in the case of State ex rel. vs.
We see no foundation in reason for the claim of the defendant, that the writ does not lie against him be-, cause he is an officer cle facto. We do not think he can take advantage of a tenure of office which is prima facie wrongful, and stand upon the bare fact of such tenure when he is called upon to surrender the property of the office to the officer cle jure.
The motion to quash the alternative writ is denied. The demurrer to the return is sustained, judgment rendered for the relator upon demurrer, and a peremptory writ of mandamus is awarded, returnable on Tuesday, the fifth day of March, A. D. 1895.