Opinion
No. 64-804.
October 20, 1964.
Mershon, Sawyer, Johnston, Dunwody, Mehrtens Cole and James E. Glass, Miami, for petitioners.
Bernard B. Weksler and Salvatore G. Militana, Miami, for respondent.
Before BARKDULL, C.J., and HORTON and HENDRY, JJ.
In a mandamus proceeding below, the trial judge, after return had been made to the alternative writ but before final hearing, entered an order pendente lite, requiring the petitioners to admit the respondent forthwith to the medical school as a fourth year student. A petition for writ of certiorari has been filed in this court seeking the review and quashal of the order pendente lite.
The merits of the mandamus proceedings are not before us for decision. By order of this court the effectiveness of the order pendente lite has been stayed pending disposition of the petition for writ of certiorari. Oral argument was heard by the court on the petitioners' motion for supersedeas or stay and after the submission of briefs by both parties, the court, pursuant to Rule 4.5 (g) (2), Florida Appellate Rules, 31 F.S.A., has considered the merits of the petition for writ of certiorari.
The Constitution of Florida, Article V, Section 6(3), F.S.A., grants to circuit courts "* * * power to issue writs of mandamus * * * and all writs necessary or proper to the complete exercise of their jurisdiction." See City of North Miami v. Engel, Fla.App. 1959, 109 So.2d 33. The order pendente lite requiring the petitioners to forthwith admit the respondent was mandatory in character and for all practical purposes, effectuated the command of the alternative writ and the return thereto. The issuance of provisional mandatory or prohibitory orders during the course of mandamus proceedings is not without authority or precedent. Such orders are authorized for the preservation of the status quo, to protect the court in the complete exercise of its jurisdiction or to effectuate its final judgment. See Article V, Section 6(3), Constitution of Florida; City of North Miami v. Engel, supra; 21 Fla.Jur., Mandamus, § 128; 55 C.J.S. Mandamus § 329; and Tobin v. Serna, Tex.Civ.App., 277 S.W.2d 176. The order under review does not purport to accomplish any of these purposes.
Since the order entered September 22, 1964, recorded in Circuit Court Minute Book 657, page 577, was without legal basis and a departure from the essential requirements of the law, it follows that the same should be and is hereby quashed.
It is so ordered.