G. S. Scott, D. W. Davis, E. T. Helvenston, William Hocker, W. J. Edwards, Richard McConathy and Ed. Deloust, Members Composing the City Council of the City of Ocala, Plaintiffs in Error, vs. The State of Florida ex rel. Otto Grothe, Defendant in Error, 43 Fla. 396

Maxwell, C., (After stating the facts.) The alternative writ in this case is directed to the members of the city council of the city of Ocala, commanding them to permit the' relator to assume the functions of the office of member of such council.

In order to support such mandate, it is necessary that the allegations of the alternative writ should make a clear prima facie case in favor of the relator, by “alleging all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him, as well as the facts which entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation.” Puckett v. State ex rel. Johnson, 33 Fla. 385, 14 South. Rep.

Section 3 of

Chapter 4089, acts of 1891, entitled “an act to extend and enlarge the boundaries and powers of the municipality known as Ocala, Marion County, Florida,” provides that “the city council shall judge of the qualifications and elections and returns of its own members, and shall prescribe rules for the determination of contested elections.” The writ therefore is directed to a body having the power to judg'e of the qualifications, elections and returns of its own members ordering that it recognize the relator as the successful candidate in the election.

Many courts hold that mandamus will not under such circumstances lie to a body of this character (Board of Supervisors of Mason County v. Minturn, 4 W. Va. 300; State ex rel. Williams v. Common Council City of Rahway, 33 N. J. L. 111; Peabody v. School Committee City of Boston, 115 Mass. 383; Hildreth v. Heath, 1 Ill. App. 82; Mayor of Vicksburg v. Rainwater, 47 Miss. 547; High on Ex. Legal Rem. Sec. 403); but if it be that in this State under the decision of State ex rel. Donnelly v.

Teasdale, 21 Fla. 652, mandamus will lie in such cases, still the alternative writ must show the facts establishing a clear legal right. If there are circumstances in this case which will support such a writ, they must appear from the allegations of the writ. The respondents as officers of the city must be presumed to have discharged their duty in the absence of allegations to the contrary.

All of the allegations of the writ as filed herein are consistent with the idea that the respondents, in the exercise of their functions as judges of the election in question, rightfully refused to recognize the election of the relator, because they had previously in accordance with the powers conferred on them determined that relator was not rightfully entitled to the office of councilman at large by virtue of the election and qualification'alleged in the writ. Allegations which are equally consistent with a rightful or a wrongful refusal to act will not state a case for mandamus.

The writ, in such a case,' “must contain not only the affirmative allegation of proceedings necesary to entitle the party to the process prayed for, but it must also be averred that other facts which would justify the omission complained of do not exist.” Hoxie v. County Commissioners of Somerset, 25 Me. 333; Goss v. Common Council of Vermontville, 44 Mich. 319. The demurrer to the alternative writ should have been sustained, and the judgment is reversed and the case remanded with directions that such order be entered, and for further proceedings in accordance with law. Glen, C., concurs. Per Curiam.

The foregoing opinion has been examined by the court and is hereby approved and adopted and ordered to-be filed as the opinion of the court in said cause.