The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1891-10-24
THAT MANDAMUS
THE ATTORNET-GENERAL DECLINES
TO ACT.
HE SAYS DAVIDSON SHOULD INSTITUTE
PROCEEDINGS, AND NOT THE STATE
HOLDS DIFFERENT vIEwS-THE COR
RESPONDENCE IN FULL.


HOLDS DIFFERENT vIEws-THE COR
REsPONDENCE In FULL.
Governor Fleming instructed Attorney
@ eneral Lamar to institute proceedings
in the Supreme court to procure writ
of mandamus to compel Secretary Of
State John L. Crawford to discharge his
duty by afixing the great seal of state
and countersigning the appointment of
Hon. R. 81. M. Davidson to be United
States senator from Florida. The attor-
ney-general replied that as the appointee,
Hon. r. II. NJ. Davidson, was the person
in interest, he was the proper party to in
stitute the proceedings and not the state
through the encouragement. The gov
ernor did not agree with the attorney
generals views, in so far as relates to the
encouragement not being the proper
party to institute the proceedings, and he
renewed his instructions, again telling
the attorney general to proceed forthwith
to institute the proceedings to obtain the
writ of mandamus. But the attorney
general stuck to his first position and re-
piled to the governors letter of instruc-
tions at length, setting forth in substance
that it was not his duty and that, there
fore, if the writ of mandamus was asked
for it must be by some other than he.
But the mandamus will be asked for
nevertheless.
The correspondence between the gov
ernor and encouragement is given here
with in full Governor Fleming's first
letter of instructions was as follows:
STATE OF FLORIDA, }
EXECUTIVE DEPARTMENT, :
TALLAHASSEE, Oct 10, 1891.
Hon. W B. Lamar, Attorney General:
SIR-On the 22d day of September A.
D. 1891, appointed Hon. r. II. M. Da-
wilson to be United States States senator
from Florida, until the meeting of the
next legislature of the said state, to fill
the vacancy occasioned by the expiration
of the term of office of the Hon. Wilkin-
son Call as United States senator, which
term expired on the Sd of March A. D.
1891, which appointment is herewith
transmitted
I thereupon instructed Hon John L.
Crawford, secretary of state, to seal said
appointment with the great seal of the
state and to countersign the same, which
he has failed and refused to do. You
are, therefore, required to institute pro-
ceedings forthwith in the Supreme court
of this state to procure the writ of man
damus of said court to compel the said
secretary of state to discharge his duty
in the premises by sealing the said ap-
pointment with the great seal of the state
and countersigning the same.
Very respectfully.
FRANCIS p. FLEMING,
Governor.
To this Attorney General Lamar re-
piled as follows:
OFFICE OF ATToRNEY-GENER
TALLAHASSEE, Oct. II, 1891.
Hon. Francis P. Fleming Governor of Florida:
SIR have your favor of tue 18th
inst, stating that the Hon. John L.
Crawford, secretary of state, has, failed
and refused to cOuntersign and affix the
great seal of state to the appointment
made by Your Excellency of Hon. r. H.
NJ. Davidson to be United States senator,
and requiring me to institute proceedings
in mandamus before the Supreme court
to compel him to do SO.
Since the publication of the fact that
the secretary of state declined to seal
said appointment and cOuntersign the
same, without an accompanying protest,
I have, in anticipation of this phase of
the matter, given the same careful con-
sideratiOn.
1 am of the opinion that if proceedings
are to be instituted against the secretary
of state to compel him to countersign
said appointment and affix the seal of the
state thereto, that such proceedings
should be instituted by the appointee,
Hon r H. NJ Davidson, and not by tho
stat, through it's attorney general. Ad-
Judged cases show that the person APP
pointed, being the party in interest, be-
came the relatOr.
The appointee here, being the one in
interest. is the one in law to institute
proceedings He it is who has IN this
particular case, with it's surroundings,
''that special interest, definite and pecu-
liar to himself, not common to Others"
as the authorities say, which makes it in
cumbent on him to conduct the case.
Your Excellency. upon rendering to
the Hon. R. H. M. Davidson the appoint
ment spoken of, though without the seal
of the state and not countersigned by the
secretary of state, will place him in a po-
sition in law to institute proceedings, as
relator, to determine whatever rights he
may have in the matter.
Very respectfully,
WILLIAM B. LAMAR,
Attorney General.
Governor Fleming's reply to this was
as follows:
STATE OF FLORIDA, }
EXECUTIVE DEPARTMENT, :
TALLAHASSEE, Oct. 10, 1891. }
IL. VIZ no0