Summary
holding that writ will not issue when evidence showed papers no longer existed
Summary of this case from Skeen v. D'AlessandroOpinion
November 4, 1952.
Appeal from the Circuit Court for Dade County, N. Vernon Hawthorne, J.
E. Albert Pallot, Miami, for appellant.
Richard W. Ervin, Atty. Gen., and Mallory H. Horton, Asst. Atty. Gen., for appellees.
The appellant filed a petition for a writ of mandamus in the court below, seeking to compel the appellees, as and constituting the State Board of Medical Examiners, to produce the examination papers of those applicants who passed the medical examinations conducted by the Board in November of 1948 and in June and November of 1949, together with the examination papers submitted by the appellant upon such examinations, so that "the court may through such medium as it shall deem proper make inquiry and determine whether or not relator's [appellant's] grade entitled him to a certificate, and whether or not respondents [appellees] have capriciously, fraudulently, and from prejudice refused to issue relator a certificate to practice medicine in the State of Florida." The alternative writ was issued, and a return thereto was filed by the appellees. After a hearing, the trial judge entered an order quashing the alternative writ and denying the peremptory writ. This appeal followed.
It appears from the allegations of the appellees' return to the writ, and the testimony adduced in proof thereof, that the State Board of Medical Examiners is not expressly required by law to preserve the examination papers of applicants; that, at the time of the examinations referred to in appellant's petition, it had not been the practice of the board to retain the examination papers; and that the papers which the appellant sought to have produced by the Board had been destroyed. It also appears that the Board has now adopted a practice of retaining such papers for a period of one year.
Regardless of whether it was the duty of the Board to retain the examination papers, although not expressly required to do so by the Legislature, as contended for by appellant, the fact remains that they do not now have the examination papers here in question. It is a well-established fundamental principle of the law of mandamus that the writ will never be granted in cases when, if issued, it would prove unavailing, or when compliance with it would be nugatory in its effects, or would be without beneficial results and fruitless to the relator. Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41, and cases therein cited; Campbell v. State ex rel. Garrett, 133 Fla. 638, 183 So. 340; Pippin v. State, 73 Fla. 363, 74 So. 653, 655. Since the issuance of the writ in the circumstances here present would be futile, the trial judge did not err in denying the peremptory writ.
Accordingly, the order appealed from should be and it is hereby
Affirmed.
SEBRING, C.J., MATHEWS, J., and FABISINSKI, Associate Justice, concur.