Myers v. State ex rel. Thompson

87 So. 80, 81 Fla. 32

• Court: Supreme Court of Florida
• Decided: January 14, 1921
• Status: Published

Opinion

Whitfield, J.

A peremptory writ of mandamus was issued herein commanding the secretary of a lodge of Odd Fellows to issue a receipt for dues, etc., upon payments made under a schedule of assessment dues without reference to increases that had been made in such dues, the authority for which increase was contested. A writ of error was taken.

The writ of mandamus does not supersede legal remedies, but rather supplies the want of a legal remedy, therefore two prerequisites must' exist to warrant a court in granting this extraordinary remedy: first, it must appear that the relator has a clear, legal right to the performance of the particular duty by the respondent; and, second, that the law affords no other adequate or specific remedy to secure the performance of the duty which it is sought to coerce. State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213.

Mandamus is not the proper method of trying collateral questions which require a legal controversy for their settlement. Cawthon v. State ex rel. Adams, 62 Fla. 133, 56 South. Rep. 404; State ex rel. Sunday v. Richards, 50 Fla. 284, 39 South. Rep. 152.

“At common law the issuance of a writ of mandamus is not a matter of course; being in its nature a prerogative writ, its issuance is to a certain extent a matter of judicial discretion, and even in this country where the prerogative character of the writ is no longer fully recognized, the exercise of the jurisdiction to grant it rests, to a considerable extent, in the sound discretion of the court, subject always to the well settled principles which have been established by the courts. 18 R. C. L. §52, p. 137; 26 Cyc. 143, 157.

In this case the rights of the relator, if any, in the premises, depend upon a determination of rather' unusual questions of fact to which rules of law hitherto unascertained in this State are supposed to apply. As a legal right of the relator to the writ does not clearly appear on the face of the pleadings on which the writ was ordered, and as questions involved should be adjudicated in other appropriate proceedings, the peremptory writ of mandamus should not have been issued, but the alternative writ should have been dismissed.

Reversed.

Browne, C. J., and Taylor, Ellis and West, J. J., concur.