
    McCARTY et al. v. BOOTH.
    Supreme Court of Florida. En Banc.
    Jan. 8, 1954.
    Rehearing Denied Feb. 3, 1954
    
      Dowda & Millican, Palatka, Richard W. Ervin, Atty. Gen., and Fred M. Burns, Asst. Atty. Gen., for appellants.
    William B. Watson, Jr., and William N. Long, Gainesville, for appellee.
   THOMAS, Justice.

The title to certain lands situated in Putnam County was vested in the State under Chapter 18296, Laws of Florida, Acts of 1937, F.S.A. § 192.35 et seq., commonly known as “The Murphy Act.” On 6 September 1952, after duly advertised notice, the clerk of the circuit court sold the property at public auction and accepted a bid from the appellee. On 8 October 1952, the Board of Public Instruction of the county deposited with the clerk sufficient money to reimburse the appellee and telegraphed' the secretary of the Trustees of the Internal Improvement Fund a “protest” against the sale to appellee. The board supposedly adopted a resolution on 7 October 1952, designating the lands a public school site, and requesting the appellants to withdraw them from the market and convey them to the board “without public sale.”

The minutes of the Trustees of 14 October 1952, show that the sale had been reported to that body; that the bid of appellee had been accepted and approved, and that after acceptance and approval of the bid and authorization to execute and deliver a deed conveying the property to the appellee, an attorney appeared on behalf of the Board of Public Instruction and “requested that delivery * * * be withheld pending an application of the Board of Public Instruction to acquire title to the lots authorized to be sold to Mr. Booth [appellee] * * (Italics supplied.)

This action was prompted by the provi-'sibns-of Sec. 1-92.50, Florida Statutes 1951, ;:ánd' F.S.A.. that “The State of- Florida, through the trustees of the internal improvement fund * * * are * * * authorized, empowered and directed to convey to the county of the state wherein such lands are situated, * * * or the county board of public instruction * * * without consideration and without sale, for public purposes, any land the title to which vested in the State of Florida pursuant to chapter 18296,” supra.

The circuit judge decided that the Board of Public Instruction made no effort to exercise its right to acquire the land under Sec. 192.50, supra, until 7 October 1952, and that meanwhile the appellee had become the purchaser, so he entered a judgment that a- peremptory writ of mandamus issue. As the alternative writ had commanded the'.appellants to execute a deed conveying the property in dispute to the ap-pellee, it may ¡be-presumed that the peremptory writ would carry the same command.

At the meeting of the Trustees held 14 October 1952, action on the purchase by ap-pellee and protest by the board was postponed and at an adjourned meeting, 2 December it was decided that the property be conveyed to the county for school purposes, but that' delivery of the deed be delayed for thirty days to allow the appellee to “bring suit and determine if the Trustees have made a legal error * *

Reverting to the resolution of the Board of Public Instruction, we should say why we referred to it as having ‘supposedly’ been adopted on a certain day. We find no reference to such formal action in the minutes of the meeting of the ¡board held October 7th, nor at any other time. Not only does this absence cast doubt on the efficacy of the resolution but, as we have said, the minutes of the meeting of the Trustees show that as late as October 14th the application by the board to acquire the property had not been made.

We come inevitably to the conclusion that regardless of. the failure of the minutes to include any reference to the res’olution and.assuming .it was adopted on the date alleged in the -respondents’ return, still it came too late because the sale to the ap-pellee had already been made in full compliance with law. We think the transaction had reached the stage where it could not be upset despite the high motive of the Trustees to give the public the advantage, for no such preference was then available to the board under the law. We are convinced that the circuit judge ruled correctly in entering judgment for the relator. State ex rel. Wadkins v. Owens, Fla., 62 So. 403.

We will dispose of one other matter before concluding our remarks about this litigation. The appellants pose the question whether the denial by this court of the petition for mandamus in the case of Booth v. Warren involving the same parties and issues, established, the law of the case concerning the proper adoption of the resolution. Appellants seem to take the position that this denial “without prejudice to Relator to institute his action in the Circuit Court * * ■ *, because * ' * * it appears by the record that a factual issue involving third parties” might develop, committed the court to the view that an issue of fact was actually presented in respect of the adoption of the resolution and that, to quote their brief, “the Honorable Judge of the Circuit Court had no right to ignore the order of the Supreme Court * * * to make the -determination [of] fact required to be made by the Supreme Court of Florida.” We understand that appellants, therefore, think our order disposed of all matters except the sole one of proving the resolution and that when the circuit judge heard no testimony on that point he necessarily erred in ruling for the appellee.

There is abundant documentary evidence in the record, even if there is no testimony, to establish all the salient facts. The denial of the petition here without prejudice did not amount to any decision whatever on the law of the' case, as appellants insist.

It is expressly provided in 30 F.S.A. Rule 27(b) of this court that an “Application [for mandamus] raising questions'of fact which will require the taking of testimony to determine will not be entertained.” The rule was adopted because of the difficulty of hearing arid recording testimony in cases of original jurisdiction. ■ In extremely fare instances this court has found it necessary' to have testimony-taken and- has appointed a circuit judge as commissioner for that purpose. To preclude this awkward procedure the court long ago decided that in cases where it appeared that testimony ¿right be required, such applications would be denied without prejudice so a circuit court could hear and determine the matters as a,court of original jurisdiction instead of the circuit 'judges serving in the capacity of commissioners. So when in these circumstances a petition is presented and the litigant receives a denial “without prejudice” he is privileged to apply to the circuit court precisely as if he had riot asked this court to entertain his petition.

The judgment is

Affirined.

SEBRING, MATFIEWS and HOBSON, JJ., concur.

ROBERTS, C. J.,; and TERRELL and .DREW, JJ., dissent;

ROBERTS, Chief Justice

(dissenting).

It is well settled that “courts in the exercise of their discretionary power to issue extraordinary writs will look to the public interest which may be concerned. * * * If public injury or embarrassment might result from issuance of the writ, the court may properly refuse it.” 34 Am.Jur., Mandamus, Sec. 35. And, in my opinion, the circumstances here are such as to require the court to deny the mandatory relief prayed- for by the relator.

In the first place, no title had passed to the relator.’ He had simply bid in the property at public sale; and until the deed was actually -executed and " delivered by the Trustees of the Internal Improvement Fund, title remained in the Trustees. Lance v. Smith, 123 Fla. 461, 167 So. 366; Dolores Land Corp. v. Hillsborough County, 1953, Fla., 68 So.2d 393. The delivery of the deed was the last official act to be performed by the Trustees in the conveyance of the property, after which their control over the property would cease. Compare U. S. v. Schurz, 102 U.S. 378, 26 L.Ed. 167. It would seem, then, that the relator-had no clear right to the writ.

In the second place, it is the clear intent of the statutes relating to Murphy Act lands that preference in the disposal of such lands be given to public agencies. Section 192.50, Florida Statutes, F.S.A., directs the Trustees to convey to the named public bodies or governmental subdivisions of this State “without consideration and without sale, for public purposes, any land the title to which vested in the State of Florida pursuant to chapter 18296, laws of Florida, acts 1937 [the Murphy Act]”. The authority to sell such lands to private persons “to the highest and best bidder for cash at such time and after giving such notice and according to such rules and regulations as have or may be fixed and adopted from time to time by said trustees of the internal improvement fund”, Section 192.38(1) (a), is permissive only. The Board of Public Instruction of Putnam County had decided upon the property in question as desirable for a public school and had communicated this decision to the Trustees before they had taken their “last official act” in the matter. And the fact that this was not done until the expiration of the 21-day period prescribed by the Trustee’s rule as to protests of sale is not, in my opinion, conclusive. The minutes of the Trustees show that the 21-day rule was “for the office and the Clerks of the Circuit Courts to operate under, but is not something the Trustees may not change if they so desire, which is sometimes done in cases where the public interest is involved.” This interpretation of their own rule by the Trustees would seem to be clearly justified as being in the best interest of the public; no abuse of such discretion has here been shown. This is especially true where, as here, the land was sold at the public sale for $170 and was worth more than $7,000.

In my opinion, where a public need for Murphy. Act land has been made to appear to the Trustees after the’public sale of such land but before a deed thereto has been executed and delivered to the purchaser, the writ of mandamus should not issue to compel the Trustees to convey the land to such purchaser, in the absence of some special equity on behalf of such purchaser.

The judgment of the lower court should be

Reversed.

TERRELL and DREW, JJ., concur.  