STATE OF FLORIDA EX REL. ROBERT SHEVIN, ATTORNEY GENERAL, STATE OF FLORIDA EX REL. WALTER CONDON, AND WALTER CONDON, APPELLANT,
v.
CITY OF SANIBEL, A MUNICIPAL CORPORATION, APPELLEE
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Walter Condon, a landowner in the City of Sanibel, sought permission from Florida's Attorney General to prosecute a quo warranto action challenging the city's validity in the state's name. After the trial court denied the petition, Condon appealed, but the Attorney General withdrew permission to continue the case. The appellate court held that the Attorney General has absolute control over quo warranto proceedings and granted the motion to quash the appeal.
The Attorney General has absolute control over common law quo warranto proceedings, including the right to withdraw permission and control of appeals. A private relator cannot continue to prosecute such an action without the Attorney General's ongoing permission and involvement.
[1] At common law, the Attorney General has absolute control over quo warranto proceedings, as the state is the real party in interest.
[2] The Attorney General's control over a quo warranto proceeding extends to appeals.
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Join FLexlaw to unlock all legal intelligence“the state, not the relator, is the real party in interest”
Establishes the fundamental rationale for the Attorney General's absolute control over quo warranto proceedings—the state is the true party, not the private relator.
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Join FLexlaw to unlock all legal intelligenceWalter Condon owned land in the City of Sanibel and requested the Attorney General's permission to prosecute a quo warranto action challenging the cit…
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McNULTY, Chief Judge.
One Walter Condon, the owner of lands located in the City of Sanibel and the true relator herein, requested the Attorney General for permission to prosecute on behalf of the Attorney General this quo warranto action challenging the validity of the City. Such permission was granted with the caveat that: “It is understood that [the Attorney General’s] office must retain control in this case. To that end, please keep [the Attorney General] advised of any action you take and furnish copies ‘of any pleadings filed herein.” The action was then filed in the name of the State of Florida on the nominal relation of the Attorney General.
After hearing on the order to show cause why a writ of quo warranto ought not issue, and the response of the respondent-city thereto, the trial court denied the petition for writ of quo warranto finding, in effect, that the City of Sanibel was legally formed. The cause was dismissed with prejudice and Condon caused this appeal to be filed. The Attorney General has moved to quash for the reason that he has withdrawn from Condon his permission to further prosecute the case in his name and in the name of the State of Florida. We grant the motion to quash the appeal.
Prior to the institution of this action, § 165.30, F.S.1973, which authorized an owner of land within the territorial boundary of a city to institute quo warranto proceedings challenging the validity of the city in the name of the state, upon refusal of the Attorney General to do so, was repealed.1 The petition herein seeks, therefore, a common law writ of quo warranto; and at common law the overwhelming weight of authority was that the Attorney General has absolute control of such a quo warran-to proceeding,2 the rationale being that the state, not the relator, is the real party in interest.3 This “absolute control” governs appeals as well.4 Cases to the contrary involve particular statutes.5
Accordingly, the Attorney General’s motion to quash and dismiss this appeal should be, and it is hereby, granted.
BOARDMAN and GRIMES, JJ., concur. . Chapter 74-192, Laws of Florida 1974.
. Cf. State ex rel. Attorney General v. Bryan (1905), 50 Fla. 293, 39 So. 929. See also State by Information of Hancock ex rel. Banks v. Elwell (1960), 156 Me. 193, 163 A. 2d 342.
. See Robinson v. Jones (1873), 14 Fla. 256.
. See, e. g., People v. Wood (1952), 411 Ill. 514, 104 N.E. 2d 800; People ex rel. Buchanan v. Mulberry Grove E. S. District (1945), 390 Ill. 341, 61 N.E. 2d 256.
. See, e. g., State ex rel. Handlan v. Wilkie Land Company (1942), 349 Mo. 666, 162 S.W. 2d 846; State ex rel. Black v. Taylor (1907), 208 Mo. 442, 106 S.W. 1023; State, by Hagglund, ex rel. Security Savings and Trust Company v. School Dist. No. 9 of Tillamook County (1934), 148 Or. 273, 31 P. 2d 751.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Butterworth v. Espey, 523 So. 2d 1278 (Fla. 2d DCA 1988)…of the Attorney General, can file an information in the nature of a quo warranto to test the existence of a public franchise or to challenge the exercise of a municipal franchise. See also State ex rel. Shevin (Attorney General) v. City of Sanibel, 318 So. 2d 177 (Fla. 2d DCA 1975). We find no material distinction, vis-a-vis a proper exercise of authority by the Attorney General, between the specific type of relief sought through quo warranto in City of South Miami and the relief sought here. Nothing in Sta…
Authorities Cited
- State v. Bryan, 50 Fla. 293 (Fla. 1905)
- Robinson v. Jones, 14 Fla. 256 (Fla. 1873)