Opinion
June 15, 1955. Rehearing Denied June 30, 1955.
Appeal from the Circuit Court, Dade County, Marshall C. Wiseheart, J.
Charles J. Bodner, Miami, for appellant.
Anderson, Scott, McCarthy Preston, Robert H. Anderson and George F. Gilleland, Miami, for appellees.
The complaint was filed by Joseph T. Miller, Charles J. Bodner, as mayor and councilman, and Paul J. Bauer, as councilman of the village of El Portal, against Ernest E. Carbonelli, Edward A. Cudlipp, C.L. Eddleblute, C.G. Nuckols, Fred L. Rouse, Joseph A. Wanick and Donald L. West, councilmen of the village, Elmer F. Boss, town clerk, and Robert H. Anderson, an attorney. The plaintiffs were described as citizens, residents and taxpayers of the village and all parties, except Joseph T. Miller and Robert H. Anderson, were represented as suing or sued in their individual as well as official capacities.
The suit was brought as a class suit in behalf of the village and its citizens to retrieve from the defendants the sum of one thousand dollars paid Anderson for his services as an attorney for the representation of Cudlipp in a quo warranto action against Cudlipp by Bodner.
Under the charter the mayor of the village is elected by the councilmen from their number. The council had elected Cudlipp to the post; Bodner challenged by quo warranto Cudlipp's right to the office. The council, to protect Cudlipp's claim to the office by defending the action it had taken in electing him, paid the fee for his defense.
We see nothing wrong in the action. Though Bodner and Cudlipp had a personal interest in the outcome, the village itself had a primary stake in the controversy because the office of mayor and the powers exercised by the incumbent were cast in doubt by the attack of one councilman against another.
In this quarrel within the councilmanic family the issue not only immediately and directly affected the proper governance and administration of village affairs but the official action of the councilmen as electors was challenged. In this situation the council was thoroughly justified in expending public funds to insure that the action they had taken in the choice of a mayor was properly defended, and consequently to dispel any doubt about the exercise by Cudlipp of the prerogatives of the office of mayor. Cf. City of Jacksonville Beach v. Waybright, 130 Fla. 525, 178 So. 401; Godard v. Campbell, 143 Fla. 419, 196 So. 814; Cheesebrew v. Town of Point Pleasant, 71 W. Va. 199, 76 S.E. 424, 79 S.E. 350, L.R.A. 1917D, 237.
Affirmed.
DREW, C.J., and HOBSON and THORNAL, JJ., concur.