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

m0n6S tnOuQn Wltn0ub t0o sD0N aax0 NV
countersigned by the secretary Of staee,
viii place him in position In law TO IN
stitute proceedings as relator to deter
mine whatever rights he may have In the
matter.
While it may be that the Hon. r. 81.
M. Davidson would be a proper relator,
the proceedings are nevertheless properly
instituted in the name of the state, the
STATE being the party plaintiff thereto,
and such appears to be the uniform
practice in this state. The supreme court
of Florida. State ex rel. Scott VS.. County
Commissioners, II Fla, 7O7, in the opin-
ion quote approvingly from People VS..
Halsey, 81 N. Y, 344, as follows: 1.-THE
writ of mandamus may, in propercase,
and in the absence of an adequate rem
edy by action, issue on the relation of a
private individual, to redress wrong
personal to himself, or, on the relation of
one who, in common with all other citi
Gems. is interested in having some act
done, of a general public nature, devolv-
ing as a duty upon public officer or
body who refuses to perform it,"
sTnasmuch as the people themselves are
the plaintiff in a proceeding by manda-
mus it is not of vital Importance who
The relator should be so long as he does
not officially intermeddle in matter
with which he has no concern"
For "People" substitute state as appli-
cable to the practice If this state, and it
appears that whoever may be the relator
the state is the party plaintiff.
1t is true that the said appointee has
a personal interest in such proceedings
to the extent of the emoluments of the
office to which he has been appointed.
But such interest is dwarfed by the
greater public interest involved. Whether
or not the state of Florida shall have a
full representation in the senate of the
United States as guaranteed by the con-
stitution, by the filling of vacancy
which the executive has held to exist;
and further, whether or not the secre-
tary of state, under the constitution and
laws of this state, is a mere ministerial
officer as regards The attestatiOn by him
of the official acts Of the executive, or
whether he is vested with a discretionary
and supervisory power, which enables
him, before exercising the functions by
law imposed upon him to judge for him
self whether such official acts, which he
is directed to attest, are constitutional or
unconstitutional, legal or illegal, and to
affix or withhold from such acts at his
option, according to his discretion. his
official signature, and the impress of the
great seal of the state these questions
are, in my opinion, OF such public inter
est and SO vitality affect the efficient exer-
else of the functions Of the Office of the
chief executive that The proceeding which
have instructed you to instltut'' is one,
no matter who may be the relator, in
which the state is not only nominal but
an interested party. And | feel it to be
the duty of the executive to use all lawful
means to carry into eff ct and give force
to his executive acts. 1t appears to me-
proper therefore that as the law officer of
the executive department you should in
stitute the proceedings. And this seems
to be in accord with the duties of the
encouragement as prescribed by the
statute, McClelland's Digest, page 1872,
as follows: "That he shall appear in and
attend to in behalf of the state all suits
or prosecutions, civil or criminal, or in
equity, in which the state may be party
court of this state"
l fail to find any authority to preclude
the Encouragement, or render it i'm
ingsin question On the contrary, in the
casenearest in point to this, the Site ex
rel. Bienvenu VS.. Wrotnowski, II La,
1876, the state was represented by the at
torney-general.
Holding the views above expressed, I
must renew my instructions to you to
proceed forthwith to institute proceed.
ings in the Supreme court of this state
to procure the writ of mandamus to re-
quire the secretary of state to seal with
the great seal Of the state, and counter
sign the appointment of the Hon. r. H.
NJ Davidson as United States senator.
Very respectfully,
+. p. FLEMING.
Governor
Then Attorney General Lamar replied
as follows:
OFFICE OF ATToRNEY-G }
TALLAHASSEE, FLA, Oct. 20, 1891. !
Hon. Francis P. Fleming, Governor of Florida:
SIR have your favor of the 10Th inst.
Your Excellency says in it's conclusion:
"Holding the views above expressed
must renew my instructions to you to
proceed forthwith to institute proceed
ings in the Supreme court of this state to
procure the " rit of mandamus, etc.,
would not be thought either by Your
Excellency or by the public to be dis
obeying in matter where you had the
right to direct, and I beg to point out in
a respectful manner, my duty under the
constitution.
Under the constitution of 1885 the
duties of the attorney general differ ma
tariallv from his duties under the cOnSti
tuition of 1868. Under the latter he is
made the legal adviser of the governor
and of each cabinet officer, land shall
perform such other legal duties as the
governor NAV direct, or as may be pro-
vided by law"
Under the new constitution of 1885 the
attorney-ge general is made the legal ad-
wiser of the governor and of each officer
of the executive department, and shall
perform such other legal duties as may
be prescribed by law.
BY the new constitution the attorney.
general is not to perform "other legal
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