Opinion
July 18, 1952. Rehearing Denied October 2, 1952.
Appeal from the Circuit Court for Dade County, Charles A. Carroll, J.
Stockton, Ulmer Murchison, Jacksonville, L.L. Robinson, Miami, and William A. Carter, Jacksonville, for appellant.
Thomas H. Anderson and Anderson Nadeau, Miami, for appellees.
The appellant seeks our review of an order granting appellees' motion to quash an alternative writ of mandamus. We go immediately to the petition for the statement of facts upon which the writ was issued.
The relator, except for a year or so, has been employed for twenty-eight years as an accountant by the accounting firm of Ernst Ernst, whose principal place of business is located in Cleveland, Ohio. Relator was, for nearly all of that period, representative of the partnership in Florida; for ten years supervisor and manager of the firm's Miami office. He holds a certificate of proficiency from the State Board of Accountancy.
In nineteen forty-nine, the appellees, Charles B. Costar, Charles C. Potter, and Joseph A. Sweeney, a majority of the members of the Board, brought suit in the Circuit Court of Dade County seeking to enjoin the relator from further serving as agent and manager for Ernst Ernst and from practicing accounting on the firm's behalf.
Then followed the charge that the persons we have named were disqualified to bring the suit, and they and two others who later became members of the Board were incompetent to maintain it because of their prejudice against the relator. We think there is no need to recount the circumstances said to manifest the ill feeling, because the point now to be decided does not oblige us to do that.
Assuming for the time being that prejudice was properly alleged, the question then emerges whether the relator has a clear legal right to have the members of the Board disqualify themselves from prosecuting the suit in the chancery court, and is therefore entitled to a writ of mandamus to bring that about.
It seems to us that to state the question is to answer it as the circuit judge did.
It is important to remember that the members of the Board are not, as such, charged with incompetency, but that they are said to be impotent, through bias against the relator, to submit to a court issues involving the relator as their adversary. We can only wonder how seldom the parties in a law suit are not prejudiced against the opponents. The element of prejudice is important only in respect of the man or men who must judge the controversy, not the ones who institute or resist it.
Authorities and statutes dealing with disqualification of members of courts and of bodies exercising judicial and quasi judicial functions are wholly inapplicable in a case where these persons assume positions of parties litigant, and not referees.
We think the circuit judge was eminently correct in arresting the present proceeding at the first opportunity, so the order quashing the writ and dismissing the cause is,
Affirmed.
SEBRING, C.J., and MATHEWS, J., and HOCKER, Associate Justice, concur.