Becker v. Merrell

In the petition for rehearing it is very earnestly insisted that the court in its original opinion departed from the opinion in the recently decided case of Hammond v. Curry. I do not think so.

The language used in the majority opinion in the case of Hammond v. Curry, 153 Fla. 245, 14 So.2d 290, was in substance the same as that used in the opinion in this case. In the Hammond case, it was said:

"We are not unaware of the rule found in some of the earlier cases, notably, State ex. rel. Lamar v. Johnson, 30 Fla. 433, 11 So. 845, restricting the power of the court in its examination into proceedings for the removal of officials; however, the rule has been relaxed to the extent that the courts will explore the record to determine whether there is any evidence to substantiate the charge."

And in the same case, the majority of the court, speaking through Justice THOMAS, also said:

"We do not have the idea, suggested by the judge's observation, that because the order of the director is, according to the phraseology of the charter provision, final, there can be no judicial review of the sufficiency of evidence to support it. We may determine whether there has been 'a legal and reasonable exercise of adminstrative judgment predicated upon required procedure and appropriate evidence as shown by the record as made,' or whether there has been an 'abuse of delegated authority, or arbitrary or unreasonable action.' Nelson v. Lindsey, supra."

The case of Nelson v. Lindsey, 151 Fla. 596,10 So.2d 131, 135, which was cited in the Hammond case, was also brought here on appeal from a judgment rendered by the circuit court in an action of mandamus, wherein the functions of that writ were discussed.

In this petition for rehearing it is also stated that in the majority opinion in Hammond v. Curry, supra, this Court said:

"We shall pause here to say that it was the city's burden to prove this charge, as well as the others, by a preponderance of the evidence."

That may well be true, but when such case was brought to this Court for review of the circuit court's judgment it was held, in line with our previous decisions, that this Court not attempt to reconcile conflicting testimony, or choose that which we think most worthy of belief. The rule laid down was that this Court would determine "whether there has been a legal and reasonable exercise of administrative judgment predicated upon required procedure and appropriate evidence as shown by the record as made."

In this connection we might call attention to the case of State v. Whitman, 116 Fla. 196, 156 So. 705, which was an original action in mandamus in this Court, the respondent being the State Dental Board, in which the question of the weight to be accorded to administrative decisions in mandamus cases is discussed.

In a recent case, involving the review on appeal to this Court of a judgment of the circuit court in a certiorari proceeding brought to quash the action of a Board of Public Instruction in discharging a school principal, Laney v. Board of Public Instructions, 153 Fla. 728, 15 So.2d 748, this Court said:

"The general rule is that administrative findings, in order to be upheld by the courts, must be supported by substantial evidence. This means that there must be evidence which supports a substantial basis of fact from which the fact in issue can be reasonably inferred. It must do more than create a suspicion of the fact to be established, and must be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. See State ex rel. v. Whitman, 116 Fla. 196,156 So. 705; State ex rel. Hathaway v. Williams, 149 Fla. 48, 5 So.2d 260; Florida Motor Lines v. Railroad Commission, 101 Fla. 1018, 132 So. 851; Nelson v. Lindsey, 151 Fla. 596, 10 So.2d 131; Great Southern Trucking Company v. Douglas, 147 Fla. 552, 3 So.2d 526; National Labor Relations Board v. Columbia Enamel Company, 59 S.Ct. 502, 36 U.S. 292, 83 L.Ed. 660. The evidence in this case, tested by this rule, was insufficient to prove any of the charges."

We might observe here that the power and scope of review by certiorari of the quasi judicial action of administrative boards was discussed by this Court in Florida Motor Lines, Inc. v. Railroad Commissioners, 100 Fla. 538, 129 So. 876, and again in same styled case in 101 Fla. 1018, 132 So. 851. These cases have frequently been cited with approval. See Tamiami Trail v. Railroad Commission, 128 Fla. 25, 174 So. 451; State v. Williams, 149 Fla. 48, 5 So.2d 269; Great Southern Trucking Company v. Douglas, et al., 147 Fla. 552, 3rd So.2d 526; American Railway Express Co. v. Weatherford, 84 Fla. 264, 93 So. 740 and Ulsch v. Mountain City Mill Co. 103 Fla. 932,138 So. 483, and (on rehearing) 140 So. 218. But on common law certiorari the appellate court must either quash the writ or quash the judgment of the inferior tribunal, whereas in cases where the writ of mandamus is available, the appellate court can require the inferior court or tribunal to perform such act or enter such judgment as the appellate court determines to be proper. Generally speaking, mandamus lies to compel the performance of a clear legal duty. See also 10 Am. Jur. 524-540, and 34 Am. Jur. 904, 907. But we have held in many cases that appellate review of judgments in certiorari cases does not extend to a consideration of the probative force of conflicting testimony where there is competent legal evidence to sustain the judgment. Atlantic Coast Line Ry. Co. v. Florida Fine Fruit Co., 93 Fla. 161, 112 So. 66, 113 So. 384; Medlin-Peacock Buick Co. v. Broward, 101 Fla. 600, 135 So. 156; American Railway Express Co. v. Weatherford, supra.

It is not necessary here for us to determine whether the scope of appellate review is broader in certiorari cases than in mandamus cases. But the writer is of the view that the opinion of Mr. Justice THOMAS in this case goes about as far as this Court can go, under the authorities, in dealing with the scope of appellate review of judgments in mandamus cases attacking the orders of administrative boards.

For the reasons above pointed out, I concur in holding that the original opinion and judgment should be adhered to, and the petition for rehearing denied.

CHAPMAN, C. J., BUFORD, THOMAS and SEBRING, JJ., concur.