State Ex Rel. Stewart v. Boyer

183 So. 338, 133 Fla. 565

• Court: Supreme Court of Florida
• Decided: July 23, 1938
• Status: Published

Opinions

The writ of error brings for review judgment in favor of respondent on motion to quash sustained to second alternative writ of mandamus.

By mandamus proceedings the plaintiff in error sought to require the respondent Boyer, individually and as Chairman of the Orlando Boxing and Wrestling Commission, an unincorporated body, to sign a check and deliver the same to the relator in payment for moneys alleged to have been advanced by the relator in conducting the affairs of the Orlando Boxing and Wrestling Commission which transactions occurred at the time when the relator was acting as the Orlando Boxing and Wrestling Commission.

The allegations of the alternative writ of mandamus are insufficient to show that the relator had any power or authority to act as constituting the Orlando Boxing and Wrestling Commission. The writ alleges that he advanced the money for which he seeks restitution while acting in the capacity of "sole Boxing and Wrestling Commissioner of the City of Orlando," and that as such commissioner he acted as the Commission.

Section 8 of the Ordinance provides:

"Section 8. That the Boxing and Wrestling Commission of the City of Orlando shall consist of three (3) members, to be elected bi-annually by the City Council of City of Orlando, Florida, each member to serve a period of two years from date of election, and thereafter until a successor has been elected. Members to fill vacancies on said Commission shall be likewise elected by the City Council to serve for the unexpired term caused by any vacancies."

Therefore, to constitute the Boxing and Wrestling Commission of the City of Orlando there was required to be three members.

The allegations of the second amended alternative writ are also insufficient to show that the relator was authorized to create any obligation which would bind such commission to pay a debt so incurred.

It, therefore, follows that the relator has not shown by the allegations of the second amended alternative writ of mandamus that he has a clear legal right to the relief sought, nor has he by such allegations made it to clearly appear that the legal duty rests on the respondent to perform the act sought to be coerced.

Therefore, the judgment should be and is affirmed.

So ordered.

Affirmed.

ELLIS, C.J., and WHITFIELD, BROWN, BUFORD and CHAPMAN, J.J., concur.

REHEARING DENIED.