D. C. Silvers, City Treasurer, Plaintiff in Error, v. State ex rel., State Bank of New Smyrna, Defendant in Error, 68 Fla. 368

Whitfield, J. An alternative writ of mandamus was issued from the Circuit Court of Volusia County alleging that the relator bank duly presented twenty city warrants to tbe respondent city treasurer for payment; “that the said D. C. Silvers at the time of such presentment did have in his possession, custody or control funds of the said city of New Smyrna sufficient to pay all, or at least a large part of said warrants, yet wholly neglected or refused to pay said warrants, or any of them.” The alternative writ commanded the city treasurer to pay the twenty warrants, or to show cause for not doing so.

A demurrer to the alternative writ was interposed, one ground being that it is not alleged “that the respondent has the ability to perform the acts” commanded. The demurrer was overruled, an answer or return was made, and testimony taken. A peremptory writ of mandamus was issued, and the respondent took writ of error. It does not appear by the alternative writ that the respondent had funds to make the payments when the writ was issued, and the return supported by the evidence shows that the respondent did not have funds to pay the twenty warrants.

There was consequently error in issuing the alternative writ and in awarding the peremptory writ of mandamus. The relator must show the respondent’s duty and ability to comply with the mandatory writ as was done in Ray v. Wilson, 29 Fla. 842, 10 South. Rep. 613, 14 L. R. A. 773. See County Commissioners of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339, 29 L. R. A. 416. The judgment awarding the peremptory writ is reversed. Shackleford, C. J., and Taylor, Cockrell and Hocker. J. J., concur.