A motion for issuance of a peremptory writ of mandamus notwithstanding the return operates as an admission by relator of truth of facts well pleaded, but claims that in law the return presents no sufficient ground why relief sought should not be granted.
As to the effect to be given the motion for the issuance of the peremptory writ the return of the res pondents notwithstanding, it is well to state at the outset that under our decided cases such a motion stands as the equivalent of a demurrer to a pleading in a law action. It operates as an admission by the relator of the truth of the facts well pleaded by the respondent but claims that in law the return present s no sufficient reason why the relief sought in t he alternative writ should not be granted. Lamb v. Harrison, 91 Fla. 927, 108 So. 671; State v. Seaboard Air Line Ry. Co., 92 Fla. 1139, 111 So. 281, 735; State ex rel. Atlantic Peninsular Holding Co. v. Butler, 121 Fla. 417, 164 So. 128; State ex rel. American United Life Ins. Co. v. Howell, 152 Fla. 866, 13 So.2d 214; State ex rel. Enby v. Wood, 140 Fla. 185, 191 So. 769; State ex rel. Dixie Inn v. City of Miami, 156 Fla. 784, 24 So.2d 705, 163 A.L.R. 577; Permenter v. Younan, 159 Fla. 226, 31 So.2d 387. Such being its effect, the hearing on such a motion contemplates the entry of a final order without the submission of evidence, either quashing or dismissing the alternative writ or granting the peremptory writ to the extent that the prayer of the alternative writ is wellfounded; State v. Seaboard Air Line Ry. Co., 92 Fla. 61, 109 So. 656; Leonard Bros. Transfer & Storage Co. v. Carter, 127 Fla. 198, 172 So. 924; State ex rel. Raulerson v. Smith, 157 Fla. 838, 26 So.2d 898.
Applying the rule just stated to the issues made by the writ and answer, it will be observed that the allegations of the answer raise two questions for determination: (1) Does the plan whereby the Board of Control offers to provide a legal education for the relator at a law school over whch it has no jurisdiction and which is located outside the State of Florida, the relator being unwilling to accept the provisions of the plan, accord to the relator the equal protection of the law guaranteed him under the Fourteenth Amendment to the Federal Constitution? (2) If this proposed plan does not afford to the relator the equal protection of the laws, does the alternative plan for enrolling the relator in the school of law recently established at the Florida Agricultural and Mechanical College for Negroes and making temporary provision for his instruction in the College of Law of the University of Florida until such time as adequate and comparable facilities and personnel for such course of study can be obtained and physically set up at the Florida Agricultural and Mechanical College for Negroes, satisfy the constitutional requirements of equal protection?
If under the controlling law either of these questions is answered in the affirmative, it follows that the proper order to be entered should be one in favor of the respondents; if both questions should be answered in the negative the order to be entered should grant the relief sought by the relator.