The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1891-10-24

and rom all the cases cited by your ex-
cellency.
arising under the constitution and laws
| Of this state.
Your Excellency has appointed United
States senator by virture Of the authority
vested in you by the federal constitution,
which does not prescribe that any fOrmali'
| ties (which ii is alleged that the secretary
| of state refused to afix) shall accompany
the appointment.
The secretary of state has not refused to
do that by virtue of which non action, any
one of the departments of state Is impaired
| in its workings with reference to state
affaiIs IF that were 80, a different case
Where then as respects an official, his
duty to do an act is any way doubtful,
ought the state as q state become party,
when that duty can as well be determine d
by an Individual and that individual too,
being the party: lin interest?
| MY contention is that in this particular
case the State of Florida, as state, body
polite, is not interested, not legally inter-
es: ed, in the mere act of signing and seal
ing the appointment mentioned, and that
therefore the state should not institute man
damus proceedings.
l maintain as legal proposition that
the duty of an official must be due to the
state, to "the government as such" to the
| whole government, before the state should
proceed by mandamus against him for
| refusal to perform that duty.
II the secretary of state refuses to attest
any executive act, does it follow that such
duty, if duty, is due to the state of
| Florida, to "the government as such ?"
The statute of this state quoted by your
excellency as applicable to my duty, says
| expressly ceases" in which the state" is
interested" and this language cannot be
/ held to mean cases in which only one de-
partment OF the state may be interested,
as in this particular case, if at all, gener
ally, certainly, not interested in a legal
sense.
Your excellency says that it is the uni
| form practice in this state for mandanfus
proceedings to be brought in the name of
| the state, and that in such cases "the peO-
| pie" that it, "the state," is the party plain
tiff The first proposition is correct; the
latter is largely incorrect. The real party
is the party plaintiff, not the nominal party
The relator is the real party. When the
| encouragement acts in mandamus, the
state as a state, is the real party.
Was the state the real party, the party
| plaintiff in the case OF the State of Florida
upon the relation of Herman Bash VS.. the
| County Commissioner of Jefferson county,
Goth Florida, 425, to compel the issuance
OF permit to sell intoxicating liquors, or
was the state the real party,the party plain
| Tiff, in the case from the same county
quoted ty your exceliency, the state upon
| the relation of Scott vs. county cOmmissi-
| 70 tn,
| restore names to the regis ration books?
Was the state the party plaintiff, the real
party, IN the still stronger case of the state
upon the relation of Roy Moody VS.. w. d.
Barnes, Comptroller, 25th Florida, 290. for
| here the respondent was state officer act
| ing within his official discretion. Though
| Moody used the states name as "par,y
plaintiff" yet the encouragement ap
peared for the comptroller. Though these
cases. and all other mandamus cases in the
state where private rights were and are in
| vOlved, have been brought in the states
| uame, can it be commended that the state,
state, was and is interested in them
| TO the extent of enlisting the efforts of any
government officer in their prosecution, or
| that the state, actually. appeared in any
| way for the REALTORS. or should have SO ap-
peared? think not.
contend that the state is not interested
| in this particular case in the sense that the
statute and the aGjudged cases speak of,
but thatihe appointee, Hon. r. H. NJ. Dav-
idson, is the one 80 interested in the result
Of the St cret ry of states action, AMI
should, as n matter of law, be the relator,
| and the one TO institute proceedings ami
| conduct them.
cite Your Excellencv's quotation in
STATE ex rel Scott, II Fla. taken from 81
N. Y. Report, 10 prove my contention.
| There it is said that the writ OF mandamus
may issue for one citizen in behalf of 9th
ers, where the interest is common with
| all other citizens" and the act to be don
is of general public nature" Imne-
datelv after that quotation the Supreme
court of Florida says "mOst of the cases
examined. in which these rules are applied,
relate to the assessment and collection ct
taxes, opening roads, constructing bridges,
canvassing votes, and The like matters of
public concern, in which the whole COM
munity ia concerned" Certainly in none
OF these cases should the state, as state,
become u party to any proceedings. Blu,
on the other hand, can one apply for he
writ of mandamus for another, where the
| interest instead of being common" is sep
| arate and is of a private, instead OF pub
| lie nature, and the act to be done, instead
| of being general, is special. Who must
then move in such case? The party in
interest
In case exactly parallel with this one,
in point of practice, the appointee, the
person in interest, instituted the proceed
ings. The acting governor in Illinois
made out and signed a commission and
took the same personally to the secretary
of state, to be countersigned by him and
sealed with the states seal, which the
secretary of state refused to DO. The
person appointed instituted proceedings
| in mandamus to compel him to do so
The attorney general did not appear at
all in the case. / Breese, page 1O4.
Your Excellency quotes the state ex
rel. Bienvenu vs.. Wrotnowski, II La,
1855, where the attorney general appeared
for the state. That. too, was a case
where the secretary of state refused to
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