
    Luther McConihe, Mayor of Jacksonville, et als., Appellants, vs. The State of Florida, ex rel. P. E. McMurray, et als., Appellees.
    1. Under tlio statutes In iorco in this Stato anterior to 1870 two classes of municipal corporations woro established; first, a city to contain at least tbroo hundred registered voters; second, a town to contain less than three hundred registered voters. A statute of 1870 created a third class, to contain sixteen hundred or more registered voters, leaving It discretionary with all cities having that number of voters to become a city of tho third class, or to remain a city undor tho preceding statutes, Tho class creatod by tho act of 1870 was to have powers and privileges different from tho powors conferred upon tho other clasBOs: Hold, That tho statuto of 1870 was a statuto “regulating municipal buslnosV' within the meaning of Sec. 17, Art.- IV. of tlio Constitution ¡ that such a law must bo “ijonoral and of uniform operation throughout tho State,” (Sec, 18, Art. IV., Con.); that this statuto was unconstitutional in that It wanted such “uniform operation1 throughout tho Stato,” anti also because It could not constitute a part of a “uniform system of municipal government" as required by tho Constitution. (Sec. 21, Art. IV.).
    2. Where, in response to an alternative writ of mandamus directing tho officers of a municipal corporation to show cause why they do not call an eioction for their successors In office, tho respondents sot up in defence legislative action extending their time, It Is proper for the court to determine tho constitutionality of the legislative action by virtue of which'they claim It 1b not their duty to order the election.
    -8. The determination of the constitutional question mentioned in the last note does not invo.lve any judgment of ouster or determine the right of any party to any office. The respondents are treated as do faoto officers, and the only judgment to be rendered in tho cause is one directing tho performance of a ministerial duty.
    
      4, In such a case the Interest is common to all of tho corporators, tho duty Is a public duty, the relief sought is not tho enforcement or protection of a'private right, and corporators of the municipal organization have a right to a mandamus In tho name of the State.
    5. it Is no objection to awarding the writ that tho time for the performance of the duty has passed, as it is only In case of default in performance at this time that a mandamus can issue.
    The Legislature of Florida, during its session of 1879, passed an act entitled "An act entitled an'act to amend an act to provide for the Incorporation of Cities and Towns, and to establish a uniform system of Municipal Government in this State, approved February 4, 1869, and to further provide for the organization and government of cities,” which act was approved March 3, 1879. The fourth section of this act, which provided for some radical changes in the form of municipal organization established by the act of 1869, was made applicable only to such cities containing not less than 1,600 registered voters as should elect to accept its provisions, and the mode of acceptance was specified in the ninth clause of said section, as follows:
    "Any city now containing sixteen hundred oí* more registered voters, which may elect to accept the provisions of this section, so far as the same may change in any manner its existing form of municipal organization and the election of'its municipal officers, sl^all, before the date of its next annual election, as now provided by any ordinance of said city, declare such acceptance by ordinance duly passed according to law, whereupon such change shall take, effect on and after its first annual election thereafter, to be held on the second Tuesday in December, as hereinbefore provided.”
    The fourth clause of said section required the annual election for municipal officers to be held on the, second Tuesday in December, prohibited any general election 'before that date, and provided that, in the interim, the 'officers then in office should continue to exercise the powders and perform the duties of the offices held by them. The fourth clause reads as follows:
    "The second Tuesday in December shall be the regular annual period for the election of aldermen, and of all municipal officers elected by the registered voters. Aider-men shall be voted for on a general ticket with the officers required by this section, by tho registered voters of the city at large. The term of office of the.aldermen and officers so elected shall commence on the first day of January following, and the official or fiscal year for all cities shall commence on the first day of January and end on the thirty-first day of December of each year. The term of all aldermen,and municipal officers, provided for in this section, of all cities which shall accept the provisions of this section, now in office, which shall expire before the first day of January next, to-wit: the first day of January, 1880, is hereby extended to that date, anything in any ordinance of any city fixing the day of election at any other date tp the contrary notwithstanding; and no general municipal election shall be held by any city now incorporated, which shall accept the provisions of this section, until the ! Becond Tuesday in December, 1879, and the term of all officers not provided for under this section shall expire at the end o,f the year for which they were elected.”
    After the passage and approval of this act on the 4th of '• March, 1879, the city council of Jacksonville passed an ordinance accepting the provision of said section four, arid> in accordance with its requirements, changing the date- of the annual election for municipal officers from the first Monday in April to the second Tuesday in December,,and, consequently, when the first Monday in April arrived; no election was called or held, but the officers then in office . continued to discharge the duties of the respective offices held by them'. •
    About the 23d of April, 1879, P. E. McMurray and others presented a petition to Hon. R. B. Archibald, Judge of the Circuit Court of the 4th Judicial Circuit in and for Duval county, praying for a.writ of mandamus to compel tlie Mayor, Council and Clerk to arrange for, call and liold an election for municipal officers in accordance with the provisions of the old ordinance providing for elections, • based upon the act of 1869, which had been repealed by the ordinance of March 4, based upon the act of 1879.
    The judge thereupon granted an alternative writ, commanding those officers to do as requested, or to show cause why they should not.
    The writ set out, at length, the suggestions of the rela-tors, made in their petition, which- were in substance that the respondents, the Mayor, Aldermen and Clerk, were duly elected to their respective offices on the first Monday'in April, 1878, to serve for one year from that date, and that by law and the operation of the ordinances of the city, their terms of offijce expired on the first Monday in April, 1879; that by virtue of an ordinance of the city of Jacksonville, approved February 8, 1878, (adopted in pursuance of the act of 1869,) regulating elections, and which ordinance was alleged to be still in force, an annual election was required to be held on the first Monday in April .of each year, and the respective duties of the Mayor, Aldermen and Clerk, with regard to the calling and holding of^such election, were prescribed; that the first Monday in April had elapsed and no election had been held, but the respondents had neglected and refused to call, arrange for or hold such election, and still continued to hold, exercise and enjoy their several offices respectively.
    That the pretext under which the respondents seek to justify their failure to hold an election on the first Monday in April, and upon which they found their.claim of title to the offices they hold, is the ordinance accepting the provisions of section four of the act approved March 3, 1879.
    That the Mayor and City Council had no power to accept the provisions of section four of the act of Í879, but the same should have been submitted to the registered' voters, and the doings of the respondents in adopting the said, ordinance and in the retention of their several offices, constitute a flagrant usurpation.
    Relators further aver and offer to prove that there were • not 1,600 registered voters in Jacksonville at the date, of said act, and therefore said city was not within the scope and operation of said act.
    The respondents appeared and moved to quash the writ on the following grounds:
    1. Because it does not appear' from the writ that the re-lators have a clearly established legal right to the relief prayed for, or that the alleged duty required to be performed by the respondents is a clear and specific legal duty which ought to be performed by them. ,
    
    2. Because it is apparent upon the face of the writ, that •the issue presented involves a determination of the right/ of the respondents to exercise the functions 'of the several ¡offices respectively held by them.
    The motion to quash being overruled, the .respondents made a return to tiie writ, which-was in substance as follows: ;
    Respondents admitted that they lye re elected to their respective offices at the time alleged in the writ, but denied that by law, or the operation of any ordinance then 'in ’force, their terms of office expired on the first Monday in April,' 1879; they denied that the ordinance regulating elections, adopted September 8l( 1878, had since been and still was in force; they admitted that they had not called, arranged "for or held a general election on the first Monday in-April, 1879, and denied thpt any law or ordinance, then in force, required them so to do. For further answer they alleged that the city\of Jacksonville had accepted the provisions of’section four of the act of March 3, 1879, by an ordinance duly passed, and that the council had lawful .power and authority to accept such section; they denied that the ' city of Jacksonville did not contain 1,600 registered and alleged that by the said act they were prohibited from calling, arranging for or holding any general election before the second Tuesday in December, 1879.
    The relators joined issue on the question as to whether or not there were 1,600 registered voters in the city at the date of the approval of the act, and demurred to the rest of the return. The grounds of their demurrer were,
    Because respondents admit that they were elected at the time alleged, and therefore by the general municipal law of the State, their term of office expired on the first Monday in April, 1879, as they could only continue in office “for one year from the date of their election."
    Because no provision of the act of March 3, 1879, which is not repugnant to the Constitution, justified 'the failure . of respondents to call an election.
    Because the City Council had no power to accept for the city the provisions of said section 4, and therefore the ordinance of March 4, 1879, is void.
    Because no constitutional provisions of the act of March 3, 1879, or of the ordinance of March 4, 1879, did or could operate to take away the power theretofore conferred upon the respondents to call and hold • an election on the first Monday in April, 1879, or authorize them to postpone said , election to the second Tuesday in December, 1879.
    After argument upon the demurrer, the relators with-’ drew their allegation that -the city did not contain 1,600 registered voters at the time stated, and rested their case upon the demurrer alone.
    The court sustained the demurrer and entered judgment . against the respondents, and ordered a .peremptory writ to • issue.
    From this judgment the respondents appealed.
    
      B. M. Qheney for Appellants.
    The first exception taken was to the decision of the Cir- ■ cuit Judge overruling the respondents’ motion to quash the alternative writ. This motion was properly made. Everett vs. People, 1 Caines, N. Y., 8; High on Ex. Remedies, tit. Mandamus, sec. 621-622.
    First ground. The alternative writ does not show any certain, clear and specific legal right on the part of the relators, or any clear and specific legal duty on the part of the respondents. Fitch vs. McDairmaid, 26 Ark., 482; Ar-rington vs. Van Houton, 44 Ala., 284; Reading vs¡ Commonwealth, 11 Penn. St., 196; Com. vs. Pittsburg, 34 Penn. St., 496; Draper vs. Noteware, 7 Cal., 276; Napier vs. Poe, 12 Ga. 170; People ex rel. Stevens-vs. Hayt, 66 N. Y., (21 Sick.,) 606; People vs. Board of Police, 35 Barb., 536; Mc-Dougal vs. Bell, 4 Cal., 177; State 'vs. Warren Co., 32 N. T. (L.,) 439. High Ex. Rem., tit. Mandamus, sec. 9 ; High Ex. Rem., tit. Mandamus, sec. 10. People vs. Mayor of Chicago, 61 Ill., 28; People vs. Mayor of Chicago, 1 Wend., 318; 2 Dillon, Municipal Corp., sec. 665; IT. S. vs. Bank of Alexandria, 1 Cranch, C. C., 7; People vs. Judges, 1 Doug., (Mich.,) 319; Williams vs. Judges, 27 Mo., 225; State vs. Graves, 19 Md., 351; Smith vs. Chicago R., 67 Ill., 191; High Ex. Rem. tit. Mandamus, sec. 9 and note; State vs. Supervisors, 2 Chand., 250; 45 Vt., 7; 46 Ill., 419; 51 Ill., 28.
    The writ of Mandamus should not be allowed in cases involving numerous questions of law and of fact. (U. S. vs. Commissioners, 6 Wall.,. 563.) “And where substantial doubt exists as to the duty whose performance it is sought to coerce, or as to the right or power of the officer to perform the duty, the relief will be withheld." High Ex. Rem., tit.. Mandamus, sec. 32; Field on Corp., sec. 502, Ed. 1877.
    “As a general rule mandamus will not be granted where . the right depends upon holding an act of the Legislature unconstitutional.” People vs. Stevens, 2 Abb., Pr., (K. S.,) 348; Hall vs. Supervisors, 20 Cal., 591; Smyth vs. Tit-comb, 31 Me., 272.
    
    A very slight examination of the alternative writ in this case shows that it does not fulfil the conditions laid down by High, and sustained by all the adjudicated cases, for-it does not show a clear legal right on one side and a clear legal duty on the other side.
    A direct issue, involving numerous questions of law and fact, is thus presented upon the-face of the writ itself.
    If the issue presented by the pleadings is an issue which can properly be adjudicated in a mandamus proceeding, the court may decide the issue preliminary to granting or refusing peremptory writ, but if the case is one not properly within the scope of a proceeding of this nature the court should dismiss the alternative writ.
    The questions presented by the pleadings were:
    1. The right of the corporate authorities of the City of Jacksonville to exercise the rights, privileges and franchises granted by section 4 of the act of 1879.
    2. The validity of the respondents5 claim of title to the offices which they held.
    As neither of these questions could be adjudicated by proceedings in mandamus, even after return made, the right of the relators and the duty of the respondents could not be determined, and the consequent substantial doubt barred the granting of the writ.
    This case certainly involves numerous questions of law and of fact, and moreover, the alleged right of the relators depends upon holding an act of the Legislature unconstitutional, therefore the writ will not lie.
    Second ground. It is apparent on the face of the alternative writ that the issue presented involves a determination as to the title of the respondents to the offices held by
    “Where an office is already filled by an actual incumbent, exercising the functions of the office de facto and under color' of right, mandamus will- not lie to determine the disputed question of the title, and whenever it is apparent on the face of the pleadings that the issue presented involves a determination as to the person entitled to exercise the functions of an office, the writ of mandamus will be withheld/5 High on Ex. Bern., tit. Mandamus, secs. 49, 50, 51, 53, 67, 77, 401, 73, 52; 2 Dillon Municip. Corp., sec. 674.
    “The right of a public officer to. discharge the duties of his office .cannot be inquired into collaterally, hut only in a direct proceeding instituted for that purpose/5 Johns vs. People, 25 Mich., 409; Eaton vs. Harris, 42 Ala., 491; Gumberts vs. Adams Ex. Co., 25 Ind., 181; State vs. Lewis, 22 La. Ann., 33; Cooper vs. Moore, 44 Wis., 386; .Kaufman vs. Stone, 25 Ark., 336.
    0filter de facto. “All that is required where there is an office to constitute a person an officer de facto is that he claims -the office and is in possession of it, performing its duties under color of election or appointment, although such election or appointment be not valid. Buckman vs. Ruggles, 15 Mass., 180; State vs. Carroll, 38 Conn., 449; Petersilia vs. Stone, 119 Mass., 465; Com. vs. McCombs, 56 Penn. St., 436; 2 Dillon Municip. Corp., section 668, 716; Winslow vs. Moseley, 35 Mo., 146; State vs. State.Auditor, 34 Mb., 375 ; People vs. Bremen, 45 Barb., 457.
    “The title to office must be tested on quo warranto and cannot be questioned collaterally.55 People vs. Fletcher, 2 Scam., (Ill.) 487; People vs. Kis, 4 Cow., 382, note; Lewis vs. Oliver, 4 Abb. Pr. Pep., 121; St. Louis Co. Court vs. Sparks, 10 Mo., 167.
    
      Quo umranto is the proper remedy for usurpations of municipal offices. Mandamus will not lie to try title to office. 2 Dillon Municip. Corp., sec. 680; Underwood vs. Wylie, 5 Ark., 248; Bonner vs. State, 7 Ga., 473; People v's. Stevens, 5 Hill, 615; People vs. Detroit, 18 Mich., 338; Brown vs. Turner, 70’ M. C., 93; Denver vs. Hobart, 10 Kev. 28; Meredith vs. Supervisors, 50 Cal., 433.
    The writ (in connection with the act of March 3, 1879, referred to therein) shows that there is no actual or constructive vacancy in the city offices, but that the respondents are the de facto officers of the city, claiming under color of right-for a limited term, to-wit: until January 1, 1880 ; that the relators dispute their claim of title and claim the right to a new election to oust the respondents and refill at once the offices .now filled by them. A
    The reason given by the respondents for refusing to call an election, is because they themselves arre entitled to contimie in office. The question then directly presented is, are the respondents entitled to continue in office or not? v
    The very act which the. relators demand that the respondents shall be required to perform, would, if performed, oust the respondents from their offices. ‘Whether they should be ousted or not depends upon whether their title to their offices is valid or not, and therefore the validity of the respondents5 title to office is the first and the only question presented for decision.
    Upon the case presented by the' pleadings, that is by the alternative writ, the alleged usurpation of offices by the respondents is the only issue to be determined, and the granting of a peremptory writ would be in effect a determination as to the respondents5 title to office, and a judgment of ouster against them.
    The demurrer to the return alleges that no provision of the act of March 3, 1879, which is not repugnant to the Constitution, justified the failure of the respondents to call an election on the first Monday in April; 1879; that the terms of office of the respondents expired oh that day by virtue of the general municipal laws of the'State applicable to the city of Jacksonville, and that section four of the act of March5 3, 1879, had never, been accepted by the city* because the city council held no power to accept it.
    The provision of the act of March 3, 1879, which changed the day of the annual election to December, 1879, and continued the respondents in the offices then held by them until that date> are contained in clause four of section four of said act.
    The mode in which any city shall accept the provisions of section four of said act is prescribed in clause nine of said section.
    Two questions then, dnd two only, are raised by this demurrer :
    1. Are the provisions of clause four of section four constitutional ?
    2. What is the proper construction to be placed upon clause nine of section four ?
    If mandamus cannot issue when the right of the relators depends upon holding an act of the Legislature unconstitutional, or upon a determination as to any title to office, fhen the first question need not be discussed, and the only question presented to the court by this demurrer is as to the validity of the acceptance of section four by the city council of Jacksonville. This is simply a question of construction.
    Acceptance OF Section 4. — The language of the ninth clause of section four is so plain that it can bear but one reasonable construction, and that-is, that the city council, acting for the city, should accept and declare such acceptance by ordinance.
    The act of declaring such acceptance by ordinance was the act of acceptance itself.
    Counsel for the relators claims that the word “declare55 is insufficient to delegate to the council the power to accept^ and that it simply authorized the council to "publish or make known” the fact of an acceptance by the registered voters.
    This claim is untenable for two reasons.
    1. Because there is nothing in the clause which either directly or indirectly authorized or seems to contemplate a popular election. 2. Because the phrase "declare by ordinance,” as here used, is amply sufficient to delegate the power of acceptance to the city council.
    The word "declare” is used in the same manner and for the same purpose in the Constitution of the United States, as follows: "Congress shall have power to declare war.” (U. S. Const., Art. 1, Sec. 8.) "Congress shall have power to declare the punishment of treason.” (U. S. Const., Art. 3, Sec. 2.)
    If this court should entertain the question of constitutionality, the appellants would offer the following authorities in support of the act of March 3,1879:
    Legislative Control. — The power of the Legislature over municipal corporations, to create and to abolish them; to change their boundaries; to alter or amend their charters, and to .abridge or enlarge their powers, is absolute and without limitation, except when limited by constitutional restrictions. 1 Dillon .Munieip. Corp., Sec. 30, 36-40 ; ‘Cooley Const. Lim., Secs. 190-3; Ibid., Secs. 235-36, note 4.
    The Constitution of this State gives to the Legislature exclusive power to provide for the incorporation of cities and towns, and absolute control over them, subject only to two restrictions — first, that all laws for municipal corporations shall be general and of uniform operation throughout the State; sectored, that the Legislature shall not create any office the term of which shall exceed four years.
    The Legislature also (with the restrictions heretofore recited) had absolute power over the terms of office, of municipal officers, and the provision in this clause, extending the term of office until ‘the date of the annual election provided for in the same clause, was strictly within the scope of its authority. 1 Dillon Munieip. Corp., 168; People vs. Merrill, 11 Wend., 563; Smith vs. New York, 37 N. Y., 518; Cooley Const. Lim., S?c. 276.
    Counsel for relators, in support of his position that the Legislature cannot extend the term of office of municipal officers, relies -upon the case of Fowler; vs. Bull, 46 N. Y., 57. If this case is applicable to the case at bar, it is in direct conflict with all the authorities cited above, and is the only reported case which does conflict with them. It does not in reality, however, conflict, because the office in question in that case was a judicial office created by the Gonstitution, the Legislature simply having power to fix the term of office, while in the case at bar the office is a municipal office created'by and within the absolute control of the Legisla-
    
    The case of People vs. Bachelor, (22 N. Y., 128,) which is directly in point, and which decides that the Legislature has power to extend the term of office of municipal officers by the repeal or modification of an act providing for the • election of their successors, is expressly affirmed in the case of Fowler vs. Bull, showing that these two cases, applying to different classes of officers and different circumstances, do .pot conflict.
    It will also be observed that the case of Fowler vs. Bull expressly declares that the Legislature may change the day of election.
    But, by the act of March 3, 1879, the Legislature has neither created a new term of office, nor extended an old term.
    The act of 1869 and the ordinance based .upon that act, provided that the municipal officers should hold their offices. for one year, and until their successors are elected and qualir-fied. This meant, of course, elected according to law.
    The act of March 3, 1879, changed thevday for the annual election from April to December, and forbid any annual election before December. There could,- therefore, be no legal election befor December.
    Special or Local Law. — Another constitutional objection to section 4 has been made by counsel for the relators, this is that because the section is applicable only to a certain class of cities, that is cities containing 1,600 registered voters, and because it is not applicable to all such cities, but only to such as shall elect to accept its provisions, it is obnoxious to the clauses of the Constitution which provide that "the Legislature shall establish a uniform system of municipal government,” and that "all general laws shall be of uniform operation throughout the State.”
    Every law is general which includes in its provisions all persons or things of the same genus, and it is of uniform operation throughout the State, if it operates upon these persons or things equally in -every locality. It is not necessary that all persons and things included in a general law should be placed precisely upon the same footing, without regard to differences in their character or capacities, provided all of the same class or kind are treated alike. Neither is it necessary that a general law granting franchises or privileges should be imperative; if all persons or bodies corporate of the same class within its provisions are placed upon the same footing, if they choose so to be placed, and all are given the right to choose, the law is general in its character and of uniform operation. A system is "a scheme, having many parts connected together,” "regular order or method.” Uniform means "having the same form; consistent with itself.” A "uniform system of municipal government,” then, means simply one scheme of general application, connecting together many communities; arranging a regular order or method for these communities, according to .their grade or class, (including the grading and classification,) and giving to every community of the same grade or class the right to enjoy the same powers and privileges.
    It is argued with respect to section four of the law of 1879,- that if one city of 1,600 voters should accept the provision of tíifc section, and another of 1,600 voters should not, the municipal organization of these two cities of the same grade would not be the same, and therefore it'is not a "uniform system.”
    This argument ignores the distinction between a uniform system and uniform local organizations. The system as a whole — as a general scheme, is one 'thing, and the different parts of which it is composed are other things. The system adopted by the Legislature of Florida provides two forms of organization for all cities of a certain size,' but leaves it optional with each city to choose which form '-it will adopt, and this right of choice is as much a part of the system as is the form of organization that may be chosen. City .of Chicago vs. People, 80 Ill., 496; Morford vs. Unger, 8 Iowa, 82; Bank 'of-Chenango vs. Brown, 26 N. Y., 467.
    Such, certainly, was not the intention of the framers of the Constitution, and therefore these provisions must be so construed as to avoid the mischief which it was intended to cure, and to enforce the remedy.
    Legislature has power to decide when a general law can be made applicable. Nevada vs. Swift, ll.Nev., 128; State vs. Hitchcock, 1 Kansas, 178; 37 Ind., 163; 50 Mo., 317.
    A constitutional provision that requires all laws of a general nature to have uniform operation throughout the State, is complied with in a statute applicable to all cities of a certain class having less than 100,000 inhabitants, though,-in fact, there be-but one city in the State of ’ that class. Walker vs. Potter, 18= Ohio, N. S., 83; Bourland vs. Hildrett, 26 Cal., 162; Cooley Const. Lim., page 129; Brooks vs. Hyde, 37 Cal., 366; McAunet vs. Mississippi R. R., 20 Iowa, 338-343; Jackson vs. Shawl, 29 Cal., 267; Genlite vs. State, 29 Ind., 419; State vs. Parkinson, 5 Nev., 15; Ensworth vs. Albin, 46 Mo., 460.
    
      As to when a general law can he made applicable: State vs. Squires, 26 Iowa, 340; Johnson vs. R. R. Co., 23 Ill., 202.
    
      Right to choose or acceptance of charter by cities: Affirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not, .at their option. (Cooley Const. Lim., 117-118.) “Eminently proper that cities should be heard on the question of their incorporation.” Cooley Const. Lim., 118; Bull vs. Read, 13 Grat., 78; 23 Barb., 33.
    “Sec. 7. Which provides that the act shall take effect from and after its acceptance by the city council of Musca-tine, is not a delegation of its powers by the General Assembly, and so does not render the act invalid under the ' Constitution.” Morford vs. Enger, 8 Iowa, 82; 21 Me., 68; 8 Penn. St., 391; 10 Penn St., 214; 46'Me., 206; 17 Mo., 521; 45 Mo., 458; 17 Cal., 23.
    A case precisely in point, (subject fully discussed,) is as follows: “The act authorizing the electors of an incorporated village to determine which section of the general act for the incorporation of villages shall apply to these vil-. lages, is valid and constitutional. It is not the delegation of legislative power, but a tender to these municipalities of such specified amendments to their respective charters as they may elect to accept.” Bank of Chenango vs. Brown, 26 N. Y., 467.
    It is not unconstitutional to delegate to a single locality the power to decide whether it will be governed by a par- , ticular charter, Cooley Const. Lim., 120.
    
      Fi/nley & Memminger on the same. sade.
    
      F. M. Thompson for Appellees.
    The pretext on the. part of the respondents for their misfeasance and-neglect of duty complained of, is.“an act of the Legislature of Florida, approved March 3, 1879;/4i and a pretended' ordinance of the City Council,- pretended to have been approved March 4th, 1879, which said pretended ordinance by its title and the express provision of its text, assumes to “accept the- provisions of section four” of the statute.
    The first subject of inquiry here is, is this ordinance valid? The question of its validity is. to be resolved by ascertaining as to whether, by any valid statute of the State of Florida, the necessary legislative • power wbb delegated by the -Legislature of Florida to the City Council and Mayor of Jacksonville to pass ¿nd approve the provisions of-.thiB ordinance. There is no trace of such, delegation of power in the acts of 1869 and 1871. If it existed at all it must •have been conferred by the 9th clause of section 4 of the act of 1879, which reads as follows:
    - “Any city now' containing sixteen hundred or more reg- ■ igtered voters, which may elect to accept the provisions ■ of this .section, go far as the same may change/in any manner ‘its existing form of municipal organization and the. • election of its municipal officers, shall, before the date of its next annual election, as now provided by an ordinance ’.of 6aid city, declare such acceptance by ordinance duly passed according to law* whereupon such change éhall take place on and-, after its first annual election thereafter, to be held on' the secondvTuesday in December, as hereinbefore provided.”
    It, is manifest from a 'mere liberál construction of the terms of this clause that it was the intention of the Legislature to submit to “any city containing sixteen hundred ¡ór more registered voters” the option as j;o whether such city will accept or reject the provisions of section 4. It was within the power of the Legislature to have enacted this statute and thus to have made it obligatory'as an amendment to the general municipal law, without reference to the choice or election of the cities which it affected. But the power of election was conferred, and the section can only be made operative by an “acceptance” as provided.
    “Statutes creating municipal corporations or imposing liabilities on municipalities, or authorizing municipalities to incur debts or obligations, or to make improvements, may be referred to the popular vote of the districts immediately affected. In other words, the people of the district may decide whether they will accept the corporation or will assume the burdens. This doctrine may be considered the settled law of the whole country, and the same principle has frequently been applied in the cage of other and similar local measures.” Sedg'. Con. Construction, 135; Bank of Rome vs. Rome, 18 N. Y., 38; Starin vs. Genoa, 23 N. Y., 439; Clark vs. Rochester, 28 N. Y., 605; Bank of Che-nango vs. Brown, 26 N. Y., 467; Corning vs. Green, 23 Barbour, 33; Grant vs. Courier, 24 Barbour, 232; Robinson vs. Bidwell, 22 Cal., 379;“Hobart vs. Supervisors, 17 Cal., 23; Williams vs. Cammack, 27 Miss., 209; Alcorn ' vs. Homer, 38 Miss., 652; Call vs. Chadbourne, 46 Maine, 206; State vs. Wilcox, 45 Mo., 458; State vs. Scott, 17 Mo., 621; Smith vs. McCarthy, 56 Penn 'St., 414; San Antonio vs. Jones, 28 Texas, 19; .Louisville, &c., ft. R. vs. Davidson, 1 Sneed, 637; State vs. O’Neil, 24 Wis., 149; Cotton Vs. Leon county, 6 Fla., 610.
    How was such acceptance by the city intended to be effetced? Was it intended that the ordinance making power of the city should exercise the specified power of: election or choice? The word “ordinance” in the connection “any city,” «fee., shall, &c., declare Buch acceptance by ordinance, plainly implies some act of the City Council, to be approved by the Mayor. But the act of “acceptance” would be the exercise of legislative power, and as the City. Council is a legislative body, clothed with special, and extremely limited and closely circumscribed functions, any grant to it of such power must be in plain, direct and positive terms, and any. ambiguity of expression will suffice to defeat the presumption of such grant
    “Any fair, reasonable doubt, concerning the existence of power is resolved by the courts against the corporation and the power is denied.” 1 Dillon’s Municipal Corporations, sec. 55.
    “All acts beyond the scope of the powers, granted are void. Id. and note 1, p. 174; Opin. of Ch. Jus. Shaw, .in Spalding vs. Lowell', 23 Pick., 71.
    “The authority conferred on these subordinate bodies is to be strictly construed and must be closely pursued.” Sed. on Con., p.-379.
    “The ordinance of a municipal corporation must conform strictly to the statute giving power to pads the ordinance in question, or* its. proceedings will be void. Ib., 399; Cooley’s Con. Lim., p. . 191-192, and authorities cited.
    “And the general disposition of the courts in this country has been to confine municipalities within the limits that a strict construction of the grants of power in their charters will assign to them. Cooley’s Com. Lin., p. 194-6 and note 1.
    
    If it was intended by the act of 1879 to confer the legislative power on the council to accept the provisions of section 4, such intention must appear from the word ^declare,” as employed in the clause, “declare such acceptance by ordinance,” in clause 9, section 4.
    Applying the rule of strifct. construction, we must first ascertain the legal sense of- “declare,'” ' Bouvier defines it, “To publish, to make "known,Then when the Legislature • said thatu.the ordinance should “declare,” it clearly conferred the power to “publish,1 to make known,” and no other power. But such declaration must necessarily have been predicated upon the prior existence of something, or upon* some event which had already transpired at the time of the adoption of the ordinance, otherwise it must apply to some future event, which it clearly does not. It could not have had relation to any transaction pending at the time of the proposed declaration, unless we conclude that the word “declare” was intended as the vehicle for the transmission of legislative power to the council; in other words, that the Legislature of the State, in the solemn form of a statute, invested the City Council with a grant of legislative power of momentous consequence to the city, by authorizing an ordinance to “de clare.” If such had been the intention, would not the statute have omitted “declare” and simply provided that “any city might accept by ordinance the provisions of section 4. ” Yet it is upon this construction, and this alone, that the City Council lias assumed, in behalf of the city, to aceept the provisions of section 4.
    The necessary conclusion then is, that when the statute said “declare” (to publish, to make known,) it did not empower the City Council to pass the ordinance of March 4, 1879. But until there is an “acceptance,” the 4th section cannot become operative. “Any city now containing sixteen hundred or more registered voters, which may elect to accept,” &c., says the statute. “Elect” imports the expression of the will of the municipality, and there can be no “acceptance” until such choice or election. If this power is not in the City Council, where does it reside? There is only one other department of the municipality capable of exercising the functions of choice — the registered voters, in the ordinary way, by election. The word “City” necessa-rilly implies the whole body politic, official and unoffi-"dal, and when an election is provided for, in general terms, the qualified voters are always intended. The words which qualify “City,” to-wit: “containing sixteen hundred or more registered voters,” expressive as they are of numbers, seem to indicate clearly the registered voters as the body to whom the power of choice was delegated. And this view is further emphasized when we consider that every clause of the 4th section must materially affect the citizen in his rights, his property and his privileges.
    Then as the ordinance of March 4,1879, is void, and no choice has been made by the registered voters at an election, there has been no “acceptance” of section 4, and it is not now operative. It follows that the general municipal laws of 1869 and 1871 have not been amended, and the same are still of binding force upon the city of Jacksonville, and constitute its charter. Then the ordinance of September 7, 1878, is still in operation, and respondents, in having neglected and refused to discharge the duties it charges upon them, are liable to the process prayed.
    But we maintain further, that if there had been a regular and lawful ^acceptance” of section 4 of act 1879, there could be no justification for respondents. The authority of clause 4, of section 4, of act 1879, has been invoked to sustain them in the usurpation of a term of office for themselves and their associates in the city government. The part of that clause which is specially relied on reads: “The term of all Aldermen and municipal officers, provided for in this section, of all cities which shall accept the provisions of this section, now in office, which shall expire before thr first day of January next, to-wit: the first day of January, 1880, is hereby extended to that date,” &c.
    This is an attempt on the part of the Legislature to elect municipal officers for the city of Jacksonville for a term .commencing on April 7, 1879, (when the term for which* the present incumbents were elected would have expired,), and ending January 1, 1880. The transparent artifice of phraseology by which the election of officers for a new term is sought to be disguised under the pretense of extending the old term is impotent for any purpose of deception. The respondents were elected for a te^m which expired April 7th, and it is pretended that their terms of office acquired by a lawful election were extended by the State. This clause is unconstitutional and void.
    It will not be denied that although the powers of a State Legislature may be commensurate to those of the British Parliament, they are restrained by the express limitations of the Constitution. Sedgwick on Construction, p. 441, 442; Cooley’s Constitutional Limitations, p. 86; 87, 88, 89; People ex rel. vs. Bull, 46 N. Y., 57.
    The Constitution, article 4, section 27, provides:
    “The Legislature shall provide for the election by the people or appointment by the Governor of all State, county or municipal officers not otherwise provided* for by the Constitution.”
    What class of officers is here alluded to by the phrase “not otherwise provided for by this Constitution?” The Governor and Cabinet and all State officers, the Sheriff, County Judge and all county officers are cleanly “provided for.” Then the clause does not comprehend them. But there is no mention whatever in the Constitution of Mayor, Aldermen, Marshal, etc. Hence they are not “provided for.” Then the clause has direct reference to them. It requires that laws be made in respect to them, but limits the Legislature in making such* laws by the restriction that all such Mayors, &c., shall be elected by the people or appointed by the Governor, and that the. laws shall so provide. If then the Legislature is required to make laws vesting in the people the power of election or in the Governor the power of appointment, it is necessarily restrained from electing or appointing thsee officers. This power having been bestowed by the Constitution elsewhere, the attempt •on the part of the Legislature to exercise it -is ultra vires, and void. This being the state of the law when it is made known to the court in a proper judicial proceeding that the respondents have usurped the offices, whose dignities, privileges and emoluments they enjoy, in derogation of the Constitution and disregard of the rights of the people — the I remedy prayed will scarcely be denied. '
    The gravamen of complaint is the utter neglect and refusal of respondents'to perform the manifest duties charged upon them by statute and by ordinance to make the necessary arrangements for calling and holding an election on the “charter day,” which has elapsed, and that they, availing themselves of their neglect of duty, now continue in possession of their several offices of their own wrong. The remedy is evidently to compel them to the performance of the duties so disregarded and refused to be performed. For this purpose mandamus is -the proper process.
    The doctrine is thus stated in High on Extraordinary Remedies, section 324: “Mandamus has been fitly termed the spur by which municipal officers are moved to the performance of their duty, and it may be affirmed as a general rule, sanctioned by the best authorities, but when a plain and imperative duty is specified, imposed by law upon the officers of a municipal corporation, sp that in its performance they act merely in a.ministerial capacity, without being called upon to exercise their own judgment as to whether the duty shall or shall not be, performed, mandamus is the only adequate remedy to set them in motion and the writ is freely granted -in such casps, the ordinary , remedies at law being unavailing.”
    .“And where it is made the duty of a Town or City'* Council to elect certain municipal officers, and they refuse or npglect *to do their duty in that respect, mandamus is the-proper remedy.” Moses on Mandamus, p. 128; Regina vs. Bradford, 1 Eng. L. & Eq. Rep., 193; 2 Cowan, p. 485; 3 Cowan, 358; People vs. Collins, 7 Johnson, 549.
    We concede that by the general rule of the American municipal law, officers hold over beyond the prescribed term of their office until their successors are qualified, but the rule, does not apply in the case of default or neglect of such officers to make provision, as required by law, for the election of. their successors, nor can they avail themselves of the rule as against the people. The rule is this stated: “As against the public the officers cannot found a solid title or right to hold over upon, their own. neglect of duty. Therefore when the charter made it the express duty of Trustees in office to give notice of and themselves to hold the annual election, it was held that if they omitted to discharge this duty, though inadvertently; in consequence of which omission there was and could be p,o election, that they were not entitled to hold over, although by the charter it was provided that they should continue in office until a new election should be made and their successors qualify.” 1 Dillon’s Municipal Corporations, secs. 159, 160; People vs. Bartlett, 6 Wend., 222, 422; Pepple vs. Stevens, 5 Hill, 616; People vs. Runkle, 9 Johnson, Rep. 147; Trustees vs. Hill, 7 Cowan, 23; People vs. Bartlett, 6 Wend., 422; Hinton .vs. Lindsay, 20 Ga., 746.
    The fact that the charter day for election has elapsed, so far from preventing the application of the remedy, is the most imperative reason for the issue of process.
    “So in this country it has been held that an election of municipal officers may be held aftc¡' the charter day, and that a mandanjus may be granted to compel the proper officers to give notice thereof.” 2 Dillon’s Municip. Corp., 675; Tap. on Mandamus, p. 165.
    Any number of citizens of the municipality may become relators in an application of this nature.
    “The writ will be in the name of the State on the relation of a voter to compel a Municipal Council to hold a special election.” 2 Dillon Municip. Cor., sec. 675; State vs. Rahway, 33 FT. J. Law, 410; Moses op Mandamus, p. 198.
   Mr. Justice Wesicott

delivered the opinion of the court.

This is a proceeding by mandamus. The relators are registered voters and actual residents of the city of Jacksonville. Without narrating at length all of the allegations contained in the alternative writ, it is sufficient to say that a failure upon the part of the mayor and aldermen of the city to call an election for their successors in office in accordance with an ordinance 'of the city regulating the subject, is alleged.

It is unquestionably true that if the ordinance claimed to be in force is operative that the respondents have failed to perform their duty in the matter as alleged. They, however allege that the ordinance providing for an election of their successors at the time stated is not in force, having been repealed, as they say, by subsequent legislative" afction affecting the corporation of the city in such manner that it is in no wise their duty to call sucji an election.

* The city of Jacksonville, it is not denied, was a corporation under and by virtue of the “act to provide for the incorporation of cities and towns, and to establish a uniform system of municipal government in this State,” approved February 4, 1-869. Nor is it denied, if that act is now in force as to the city of Jacksonville, that the ordinance directing the election to be held was the ordinance controlling that subject, or that it was the duty of the officers of the corporation to call the election, which it is the piirpose of -the relators here to compel them to call. The defence relied upon principally arises out'of-the act approved March 4, 1879> being an act to amend the act of February 4, 1869, and the acts amendatory thereof, “and to further vide for the organization and government of cities”

Section 4 of the act of 1879 provided “that all cities organized under the act approved February 4, I860, which now have or may at any time hereafter have sixteen hundred or more registered voters, may have powers and exercise any or all of the special rights, powers and privileges in this section hereinafter granted, in addition to the general powers and privileges granted under the said act approved February 4, 1869, as aforesaid, and the several acts amendatory thereof, so far as they are consistent herewith.” The special rights, privileges and powers granted thereafter in this section were, to some extent, organic in their character, and to some extent, they appertained to such matters as are usually regulated by ordinances of the city under a grant of general powers.

The 9th subdivision of the 4th section of tlie act of 1879 provided that any city now containing sixteen hundred or more registered voters which .may elect to accept the provisions of this section, so far as the same may change in any manner - its existing form of municipal organic ition, .and the election of its municipal officers, shall, before the date of its first anmial election as now provided by any ordinance of said city, declare such acceptance by ordinance duly passed according to law, whereupon such change shall take effect on and after Us first anmial election thereafter to be held ón the second Tuesday in December, as hereinbefore provided. It was threinbefore provided, that the regular annual election should be had on the second Tuesday in December.

If the act of 1879 is not in conflict with the Constitution, postponing as it does the annual election until December, then a failure of the mayor and aldermen to call an election until that time is justified by the law. If, on the other hand, the power of the Legislature is so limited as to. render this -postponement in conflict with the Constitution, and the ordinance, adopted under the legislation of Í869 is in force, then they have violated the law in the failure to call an election; and if the right exists in the relators to compel them to call an election and a mandamus is a remedy appropriate to that end, they can and should be held to the performance of the duty. We first examine the constitutional questions, postponing the consideration of such other questions as we think involved to the determination of this, the most important matter connected with the cause.

The Constitution of this "State provides (Art. IV., Sec. 17,) “that the legislature shall not pass special or local laws in any of the following enumerated cases,” * * * “regulating county, township and municipal business; regulating the election of county, township and municipal officers.” “In all cases enumerated .in the preceding section, and in all óther cases where a general law can- be mqde applicable, all lhws shall be general and of uniform operation throughout the State.” (Art. IV., See. 18.) “The Legislature shall establish a uniform system of county, township and municipal government.” • Sec. 21, Art. IV.)

The amendatory act here changes in many very important respects the organic law of cities having, or which may have at- any time thereafter, sixteen hundred or more registered voters. These modifications were not to operate, . however, unless the city accepted them before" the date of its next annual election.

Under the act of 1869 municipal corporations were classified into cities and towns,, the city to contain three nun-dred registered voters, the town less than that number. Their powers were different, not, however, to any great extent, the difference being principally in the matter of authority to issue bonds; the city having .such power, while the town did not. Under the act of 1879 a new class, that, is cities having sixteen hundred or more registered, voters, _ was created, and the powers conferred on this class were different from those conferred on the other two. It is thus apparent that the Legislature authorized by its action in these two statutes, first, a municipal corporation known as a city, to contain at least three hundred voters; second, a municipal corporation, known 'as a town, to contain less than three hundred voters; and thi^d, cities containing sixteen hundred or more registered voters, and that each class had different powers. It is also apparent that the existence of any municipal corporation of the third class depended, first, upon its being being before that time incorporated as a city; second, that it contained 1,600 or more registered voters; third, that it accepted the modifications proposed in its organic law by the act of 1879; and fourth, that it declared this acceptance before its first annual election as then fixed by ordinance. As to the first and second classifications, the Legislature has fixed their powers and duties. The power of each municipal subdivision'is the same. It is uniform. Each city has the same power. Each town has like authority, and each city and town is controlled in the exercise of its subordinate legis-ltaive discretion by like limitations, as well as by like grants of power. Under the act of 1879 each town retains the government it had before, but it is left discretionary with each city having 1,600 registered voters to retain its government under the act of 1869, or to accept the now government provided by the act of 1879, and all cities with a registered vote below 1,600 are held to the government of 1869.

We have stated the limitations and provisions of the Constitution. It cannot be doubted that the act of 1879 is an act “regulating municipal business.? (Sec. 16, Art IV.) Nor can it be doubted that such an act must bo a general law of uniform operation throughout the State, (Sec. 18, Art. IV.,) as well as such a law as conforms to the mandate to the Legislature that it “sliali establish a uniform system of municipal government.” (Sec. 21, Art. IV.) Is this a general law of uniform operation, and is it consistent -with a uniform system of municipal government?

We have been unable to find the exact counterpart of our Constitution in respect to these matters in the organic law of any other States. The word uniform, however, is of very frequent occurrence in constitutional limitations upon the power of taxation. A reference to these decisions is not deemed improper.

The Constitution of Arkansas provided that “laws shall be passed, taxing by a uniform rule all moneys,”&c. The Supreme Court of that State says “taxing by a uniform rule means by one and the same unvarying standard.”

The Constitution of California provided “that taxariou shall be equal and uniform.” In speaking of the power of the Legislature under this clause the Supreme Court of that State says, “it cannot discriminate between persons, or grant an indulgence to one which it does not grant to another standing in the same relation.” (35 Cal., 616.)

The Constitution of Louisiana provided “that taxation shall be equal and uniform throughout the State.” The Supreme Court of that State held that it would preclude a discrimination as between those carrying on the same business, but permitted like taxation upon all persons in the same trade or calling. These decisions are at least suggestive of a proper definition of the term “uniform” here.

There are, however, express decisions covering the defi-. nition of the terms “general law of Uniform operation,” as they occur in our Constitution.

Art. III., Sec. 30, of the Constitution of Iowa, (1857,) provides that “the General Assembly shall not pass local or special laws for the incorporation of cities and towns,” and that “all laws of a general nature shall have a uniform operation.” Under the statutes of Iowa municipal eorpo-rations were divided into three classes: Cities of the first and second class and towns. Each class had different powers and privileges. In speaking of the matter of uniformity in the operation of the statutes creating them, the Supreme Court of that State says (20 Iowa, 342): “These laws are general and uniform, not because they operate upon every person in the State, for they do not, but because every person who is brought within the relations and circumstances provided for is affected by the 3aw. They are general and uniform in their operation upon al! persons in the like situation, and the fact of their being general and uniform is not affected by the number of persons within the scope of their operation.” It cannot be doubted that the act of 1879 is an act regulating municipal business, (84 Ill., 590,) and that such a law must be general and of uniform operation. The Constitution of Illinois had a similar limitation. Of this limitation the Supreme Court of that' State says,. (83 Ill., 590; 82 Ill., 473,) “it is not admissible, either by the letter or the spirit of the Constitution, that dissimilarity in character of organization or powers in municipalities of the same class or grade shall be created or perpetuated by enactments of the General Assembly,” and that “it is the substance and nor, the mere form given to the'enactment -which must determine its constitutionality.”

In the case of Smith vs. the Judge of the Twelfth Judicial District, (17 Cal., 554,) the Supreme Court of that State had occasion to construe a like clause in the Constitution. That court held that a general law of uniform, i peration was such a law as bore equally in its burdens and benefits upon persons standing in the same category.

Our attention has been called to the case of Walker vs. Potter, 18 Ohio, 88. There the court held an act which was applicable to- only particular cities of the first class a general law of uniform operation throughout the State. The act was clearly a local act, as it was applicable to but one city of the first class, (31 Ohio, 608,) and if it involved a grant of corporate powers, (which the act of 1879, considered in reference to the city of Jacksonville, certainly-does here,) it was, according to the subsequent decisions in that State, unconstitutional. (31 Ohio, 608.) But, however this may be, the views of the court in that case are not given. The conclusion is simply stated through a per -w-riwn. It is in conflict with the better considered decisions in the other States, and we do not doubt the act in question in that ease was not a general law of uniform operation throughout the State? In view of these authorities, is the act of 1879 a general law of uniform operation throughout the State? Did the act create a class of municipal corporations of sixteen hundred registered voters or more, we do not doubt that it would be a general law of uniform operation, but such is not the case. The local option authorized makes it a matter of discretion with all cities containing sixteen hundred registered voters or more to remain in the class of cities containing 300 voters, with a municipal government prescribed for that class, or to be embraced in the class of cities containing 1600 or more registered voters under another and different municipal government for that class. In the event all the cities with 1600 or more registered voters should accept this act as the law of their organization, the. law might, in fact, have a uniform operation. That uniform operation, however, would be the result of chance and not of the operation of a fixed rule prescribed by tlie Legislature, wjhile the Constitution contemplates no such' contingency. The government in each class must be the same, and such must be the result of the action of the Legislature, independent- of the contingency of local discretion or option in the premises. The Legislature must itself, independent of acceptance by such cities, so frame its enactment that (as expressed by Lite Supreme Court of Illinois,) there shall not be dissimilarity in character of organization or powers in municipalities of the same class. So much, therefore, of the net of 1879 -as authorizes a new class of cities, with additional powers in such cities, we think Unconstitutional.

[The act of 1879 was approved March 4th, instead of March 3d, as stated in thp statement of‘the case and briefs. — Bbfórtbr.]

In. view of this conclusion, based upon a consideration cf sections 17 and 18 of Article IV. of the Constitution, it is •not absolutely necessary that we should define sections 21 of the same article, but its construction is involved in the case and we think it proper. “The Legislature shall establish a uniform system of municipal government.” There is little difficulty in determining the signification of the word “system” in this connection, its general signification js plan, arrangement, method, and when used in reference to municipal government, it means simply rules and regulations for the organization and government of municipal corporations. Substituting this definition for The word .as used in the Constitution, the mandate \o the Legislature is-'that it shall establish uniform Tules and regulations for the government of municipal corporations.

It only remains to determine in this connection the signification of the word “uniform.” It is unnecessary to repeat here what has been said in regard to its signification when used with reference to the operation of laws through^ out the State. The term “system” indicating the plan and method of government embracing the rules and regu-1 lations operative in such plan and method, we cannot see that the word “uniform”'in this connection has any other or different meaning than we have given to it when considered in reference to the “operation” of a law. In other words, that a system of municipal government in which cities of the same class may have dissimilarity in character of organization as well as different powers, is not a uniform system within the meaning of the Constitution.' Uniformity indicates consistency, resemblance, sameness, a j conformity to one pattern. The Constitution does not prohibit a classification of municipal corporations, but it does require that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. In this resemblance, in this sameness, in this conformity of each class to one pattern, consists the uniformity of the system, and this is essential to constitute a uniform system. This act does not thus necessarily operate, and for this reason and to this extent it is in conflict with organic law. So much of it as authorizes an election in December is inoperative, and the rule controlling the matter of election is that prescribed by the ordinance of the city adopted under the act of 1869 and the amendments thereof. The duty of the officers of the corporation was therefore to call an election for their successors in office.

The remaining grounds upon which a mandamus was resisted, concern the right of the relators as well as the remedy involved- The right of the relators here depends upon the constitutionality of the act of 1879, and for this reason it is insisted that a mandamus will not be granted in rhi» case. Several cases are called to our attention in this connection, .among others the ease of Smyth vs. Titcomb, 31 Me., 285. In that case the court held, not that it would not determine such question when properly presented, but that it did not lie with the respondent, a Collector of Taxes,to make the objection under the circumstances of that case, and this conclusion was based upon views of public policy in the matter of the collection and disbursement of revenue. (High Ex. Rem., sec. 143.) The other cases cited we have been unable to examine. Where action by a ministerial officer is sought to be compelled, be cannot set up that the’ acts of de facto officers concerning third parties are void for want of power in such office. (7 John., 549.) This we understand to be the rule in New York, 'filíese cases, however, differ materially from this. Where the question of the constitutionality of an act is presented iñ a proceeding of the character now befoie the court, the courts do not hesitate to examine and pass upon the question. (31 Ohio, 592; 29 Maryland, 521; 1 Kansas. 178, 9 Nevada, 217.) We cannot see that Hiere is anything in this objection. Nor is there anything in‘iho position that this proceeding involves a determination of- the right of the respondents to their offices. No judgment of ouster is sought. On the contrary, they are treated as de 'facto officers who have failed to perform a ministerial duty. They are treated as officers now discharging the duties of their ' offices, and mandamus is the proper remedy by which to enforce the performance of their duty when it is ascertained. This,^ and this alone, is the method by which to compel the respondents to call an election. Nor can we see, as is intimated, that the right of the relators to insin-tute this proceeding is doubtful. The relators here are municipal corporators. The interest is common to all of the corporators. The relief sought is not the protection uf a private right or interest. -The question is one of public right and duty, the discharge of which is sought to be enforced, is a public duty affecting alike all the people in the city. In such a case the State of Florida is regarded as the real party and the relators need only ‘show that they are corporators and as siich interested generally in the execution of the law. 19 Wend., 56; 57 Ill., 307; 1 Cow., 23; 1 Chitty, 700; 2 Strange 1,123; 1 T. R., 146; 48 Ill., 233; 3 Ind., 452; 37 N. Y., 344; 7 Iowa, 186. There are some’, Authorities to the contrary, but the rule as we announce, it is'the now generally accepted law. High Ex. Rem., sec. 431.

Nor is it any objection that the precise date at which the , election was to be held has passed. 4 East, 142; 29 Maryland, 523.

Such a doctrine would practically abolish the remedy by mandamus in such cases. The writ does not lie before,, ííut only after default in the performance of a ministerial duty. (Tap. Man., 209, 8 A. and E., 911,) and if it be a good defense to allege that the time fixed for its performance has passed, it is evident that the very ground upon which you must base your application for the writ becomes a sufficient reply to the alternative writ when granted.

Thus disposing of all the questions involved in this controversy, the result is that the judgment awarding the peremptory writ is affirmed, and the case is remanded with directions to the -Circuit Court to issue the peremptory writ.  