27 Fla. 329 | Fla. | 1891
This is an appeal from a judgment rendered in favor of the defendant in a quo warranto proceeding.
The information which was filed by the Attorney-General in September, 1889, he suing “for the people of the State/’ alleges that Joseph Wilkins was elected sheriff of Escambia county on the sixth day of November, 1888, and still holds such office, and by virtue of his title thereto is entitled to the office and to the discharge of the duties and enjoyment of the emoluments which, prior to the dissolution of the municipal corporation of Pensacola, attached to the office of City Marshal of that city, which duties and emoluments are vested by the statute under which the provisional municipality of the City of Pensacola was and is organized, in the sheriff of Escambia county; that Connors, the defendant, for the space of three months, in the county of Escambia, and Provisional Municipality of Pensacola, unlawfully held and executed, and still unlawfully holds and executes without any warrant or right whatever, many of the pow-. ers and duties, and enjoys the emoluments which lawfully attach and belong to the said Joseph Wilkins
That the act approved February 12th, 188.), entitled ‘ ‘ An act to amend section nine of an act to dissolve municipal corporations under circumstances therein stated, and to provide provisional government for the the same, approved January 28,188J, and to repeal the eighth section of that act,” provides that it shall he the duty of the Sheriff for the county in which said city shall be situated to perform the duties of Marshal for such Provisional Municipality, and to appoint, subject to approval and removal by the board such number of policemen as may be authorized by the hoard. That notwithstanding such provision the defendant has assumed to be, and exercises the powers and duties of, chief of the police forces of the said provisional municipality ; lias assumed, in disregard of the law and the rights of relator, to exclusively superintend, direct and control all police officers and policemen of the said provisional municipality in the discharge of duties assigned to them, and to be the chief conservator of the public peace of the municipality and superintendent of the- making of complaints of offences against the ordinances thereof, and to perform all those duties which prior to the passage of the law under which the said municipality exists appertained to the office of City Marshal of the city of Pensacola, and which now law
The information prays process for Connors to answer the people by what warrant he claims to hold and execute ‘ ‘ the office and powers and duties aforesaid. ’ ’
Connors answered that in May, 1885, he was appointed by relator, then Marshal of the Provisional Municipality of Pensacola, a policeman in and for the municipality, and that' the appointment was thereafter duly approved by the Board of Commissioners of the Municipality, and thereafter he, still being a. policeman, was made by the Board, Captain of Police, and afterwards on January 10th and February 16th, 1889, the board adopted a code of ordinances for said municipality, prescribing the duties of a Chief of Police, and this code is made a part of the answer, and then the respondent, still being a policeman of the municipality, was made Chief of Police, and has exercised the functions of Chief of Police, and none other.
That respondent has not received any emoluments appertaining to relator, whose compensation as Marshal has been paid by the Board under authority of law, and no part of such compensation has ever been paid to or is claimed by this respondent.
This answer was demurred to as bad in substance, in that it fails to set up any facts inconsistent with the rights of the people or said relator as set forth in the information, and the demurrer was overruled and leave given to relator to amend.
By interposing a demurrer to the amended information the respondent Connors thereby admitted the allegations of fact in the amended information to be true. Considered abstractly, we think that the amended information in this case presents such a statement of facts as, when uncontroverted, would entitle the relato]' to the relief prayed. These' facts being admitted by the demurrer to be true, the judgment of the court below should have been in favor of the relator upon the demurrer to the amended information. Upon this view this court might rest its judgment; but there are other questions presented by the record and commented upon by counsel in their arguments and briefs, that we deem it best to discuss, in order to arrive at a more complete (lisi)osition of the cause.
It is contended for the resx>ondent that section one of Cluvpter 3607, entitled “An act to amend section 9, of an act to dissolve munieix>«l corporations,” &c., ax>X>roved February 12th, 188o, which x'wovides, among other things, that “it shall be the duty of the Sheriff for the county in which such city shall be situated to X>erform the duties of Marshal for such x>rovisional
Again, in enumerating what, courts shall constitute the judicial power “of the State,” the constitution, Art. Y. sec. 1, says: “The judicial power of the State shall be vested in a. Supreme Court, Circuit Courts, Criminal Courts, County Courts, County Judges and Justices of the Peace.” In this specific enumeration and grouping of the courts that are to be considered as constituting the judicial power or branch of the State government as such, there is a striking absence of any mention of municipal courts, the crea tion of which is also reserved to the legislature in sec.. 34 of Art. y. of the Constitution. Had it been the intention of the framers of our constitution to have the officers of a municipality considered as officers “under the government of the State,” certainly, in tliis specific mention of the courts in whom the judicial power of the State was to be lodged, so important a municipal official a,s one exercising the jurisdiction and powers of a court within 'the municipality would have been specifically included as part of the State’s judicial power. While the officers of a municipality can lie and are, in a confined and limited sense, considered as officers of the State, in that they are recog nized by the laws of the State as being clothed with certain official powers and duties to be exercised inside the lines of certain circumscribed territorial limits within the State; and in the proper exercise of such official powers and duties, are protected by the
We think, therefore, that Chapter 3007 laws, approved February 12th, 188Í5, which imposes upon the sheriff of Escambia county, in addition to his duties as sheriff of such county, the duties and functions that appertained to the former office, (abrogated by-said act,) of city marshal for the city of Pensacola, is not repugnant to the constitutional provision invoked. The following authorities sustain this view: People ex rel. Haines vs. Henry, 62 Cal., 557; People ex rel. Attorney-General vs. Provines, 34 Cal., 520; Uridias vs. Morrill, 22 Cal., 473; Brittin vs. Steber, 62 Mo., 370; State of Delaware vs. Wilmington City Council,
To th3 original information filed in this cause the respondent Connors answered, “that he had been made Chief of Police by the Board of Commissioners of the Municipality of Pensacola, and that by a code of ordinances adopted by said Board of Commissioners on February 16th, 1889, for said muncipality, the duties of a Chief of Police were provided for, and refers to said code of ordinances as part of his answer; and that he has exercised the functions conferred by said code of ordinances upon him as Chief of Police, and none other. ’ ’
This brings us to a consideration of the legality of those provisions of the code of ordinances adopted February 16th, 1889, by the Commissioners of the City of Pensacola, for the government of said city, that provides for the creation of the office in said city of Chief of Police, and which prescribe the duties of such officer. In section 1, of Chapter IV, of said code, it is provided: “The officers of the municipality are, the President, the Vice-President, the Clerk, the City Eengineer, the City Physician, the Treasurer, the Marshal, the Chief of Police,” &c. In Section 2, same Chapter, of said code, it is provided that the Chief - of Police shall be elected annually by the Board, as the President is. Division 6, of Article IV, of
‘ ‘It shall be his duty:
“Sec. 2. To see that each police officer and policeman properly discharges the duties assigned to him.
“Sec. 3. To see that the public peace is preserved, and when any violation thereof, or of the ordinances, shall come to his knowledge, to cause the requisite complaint to be made, and see that the evidence is procured for the successful prosecution of the offender.
“Sec*. 4. To obey, and cause the police force under him to obey, the directions of the President, and see that they perform their duties promptly and faithfully.
“Sec. 5. In case of tumult, riot, insurrection, or threat thereof, to take command (under the President’s direction) in person, of the police and auxiliary forces, and direct their movements and operations in the discharge of their respective duties.
“Sec. 6. To attend, at the President’s office, and at the prison, at such times as the President may direct.
“Sec. 7. To keep, and cause to be kept and made, at such time and in such manner as may be directed by the President, all records, lists, registers, books and reports concerning the affairs and operations of the police department.
By the provisions of section 4, of Chapter 1688, laws, approved February 4th, 1869, entitled “An act to provide for the incorporation of cities and towns, and to establish a uniform system of municipal government in this State,” it is provided that the qualified electors of the municipality, at the same time that they elected a mayor and city council, should also elect, a city clerk and marshal. The effect of the provision of Chapter 3606, entitled “An act to dissolve municipal corporations under circumstances therein stated, .and to provide provisional governments for the same,” approved January 28th, 1885, upon the incorporation and government of the city of Pensacola, was to dissolve and abrogate the same; and by the provisions of section 5 of said last mentioned act it is made the duty of the Governor of this ¡Mate to appoint a Board of seven Commissioners in all cities and towns whose governments are dissolved by the provisions of said act. And section 6 of said act provides “that all such cities and towns for which Commissioners shall be appointed, as provided for in section 5, are hereby declared to be provisional municipalities, the boundaries of which shall be co-extensive with the boundaries of such defunct cities and towns, and the said Commissioners, and sw'h officers as may he appointed, and the inhabitants within the limits of