30 Fla. 433 | Fla. | 1892
Tlie Governor, the administrative officers of the executive department, justices of the Supreme Court and judges of the Circuit Court Eire liable under sec. 29, Article III, “Legislative DepEirtment,” of the Constitution of ISSb, to impeachment for any misdemeanor in office; bub by sec. lb, Article TV, “Executive Department,” “all officers that shall have been appointed or elected, and that are not liable to impeachment, may be suspended from office by the Governor for malfeasance or misfeasance or neglect of duty in office, for the commission of smy felony, or for drunkenness or inoompetency, and tlis cause of suspension shad be communicated to th; officer, an L to the Se mti at its next session. And the Governor, by and with the advice of the Senate, may remove any officer not liable to impeachment for any cause Eibove named. Every suspension shall continue until the adjournment of the next session of the Senate, unless the officer suspended shall upon the recommendation of the Governor be removed; but. the Governor may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against him are untrue. If the Semite shall-refuse to remoye- or fail to take action before its adjournment, the officer suspended shall resume the duties of the office. The Governor shall have power - to fill by appointment any office, the incumbent of which has been suspended. No officer suspended who
Tax collectors being within the policy of sec. 15 of Art. IV of the Constitution set out above, the construction of such section, to the extent of the questions presented by the record, is necessary. There aie two contentions on behalf of respondent which will be disposed of primarily. The first is : That the power of suspension given to the Governor can not be exercised by him until there has been an ascertainment “by the judgment of the courts or some other tribunal possessed of judicial power,” of the existence of one or more of the causes for which suspension is authorized by the designated section. The power to make the inquiry and decide upon the existence of that which is “within the legal quality of wrong” for which.
The last observation and the importance of the principle involved necessitate a presentation of the authorities relied upon by counsel for respondent. We wall consider them in the order in which they appear in the brief. The decision in State ex rel. Police Commissioners of Jersey City vs. Pritchard et al., 38 N. J. (Law), 101-119 (cited as Police Commissions vs. Jersey City, 36 N. J. L., 112-113), is, as summarized in the head-notes: 1st, that the right to remove a State officer for misbehavior does not appertain to the executive-office ; that such act is judicial, and belongs to the-court of impeachment; 2d, certain police commissioners of Jersey City, appointed by statute, having been convicted upon indictment of conspiracy to cheat the city, and the Governor having declared their offices to' be thereby vacated, and having appointed their successors, it was held that the executive action was
“The Governor shall have power, and it shall be his -■duty, except at such times as the Legislature may be .in session, to examine into the condition and administration of any public office, and the acts of any public •■officer, elective or appointed, to remove from office for gross neglect of duty or for corrupt conduct in ■ office, or any other misfeasance or malfeasance, either ■¡of the following State 'officers, to-wit: The Attorney-General, * * or any other officer of the state, except legislative and judicial, elective or appointed, and 'to appoint a successor for the remainder of their respective unexpirecl term of office, and to report the '•cause of such removal to the Legislature at its next ’■session.” The opinion delivered by Judge Champlin "holds unequivocally that the power of removal can be «¡exercised only for the specific causes mentioned in the
. That the grant of such a power as has been conferred up ) i b he Governor by the section under'consid
The authorities are all to the effect that a grant of the power to remove, either for cause or at discretion, carries with it the exclusive power to hear and decide; and whereas the courts are entirely powerless where the power is discretionary, they are equally so where it is for cause, if the grantee of the power acts within its limits, and upon notice, if notice is required; if the removal is for a cause designated by .or following within the grant, the grantee or depositary of the removing power is the sole judge of the sufficiency of the evidence to justify the removal. That such is the case where the power is discretionary, is settled by this court in State ex rel. Holland vs. Ledwith, 14 Fla., 220. In State ex rel. vs. Doherty, 25 La. Ann., 119, where the executive power of removing the officer was “for refusing or failing to do his duty as prescribed by this act,” it was said : “The grant of power to the Executive to remove an officer for a certain cause implies authority to judge of the existence of the cause. The power vested exclusively in executive discretion can not be controlled in its exercise by any other branch of the government.” In State ex rel. Attorney-General vs. Hawkins, 44 Ohio St., 98, the decision was that where charges embodying' facts which, in judgment of law, constitute official miscon
The contention that the power of suspension can not be exercised by the Governor for the reason that it is judicial, is clearly untenable. It is true that the second article of our organic law' divides the powers of government into three departments, legislative, executive and judicial, and declares that no person properly belonging to one department shall exercise any powers appertaining to either of the others except in cases expressly provided for by this Constitution. The Constitution of Michigan contained a similar provision, . (Charters and Constitutions of U. S., 996),
II. The second of the questions claiming primary consideration is that of the necessity for notice to the officer, of the charges, and an opportunity for a hearing, before the suspension. The alternative writ does not allege such notice on hearing (King vs. Gaskin, 8 Term R., 209), and hence it is insufficient if the notice is necessary.
Under the Constitution of 1868, all executive and judicial officers, except the Governor and Lieutenant,
Such, as to the subject in hand, was the condition of the organic law which the convention of 1885 was called to revise. Revision was the purpose of the convention, and it so understood. Journal, p. 31 ; State ex rel. vs. George, 23 Fla., 585, 3 South. Rep., 81. It is plain that in some cases the old instrument gave the Governor and Senate a joint power of removal that was entirely discretionary (State ex rel. vs. Ledwith), and in others this power was in the Governor alone and for cause, whereas, in the case of justices of the peace it was a matter of his sole and unlimited official discretion. That it is held by authorities of high character that the power to remove an officer for cause can be exercised only after notice and hearing, is unquestionable. King vs. Gaskin, supra: Queen vs. Archbishop of Canterbury, E. & E., 545 ; Dullam vs. Willson, supra; State ex rel. Dennison vs. City of St. Louis, 90 Mo., 19; Field vs. Commonwealth, 32 Penn. St., 478; State vs. Bryce, 7 Ohio, 367; People ex rel. vs. Whitlock, 92 N. Y., 191; Biggs vs. McBride, 17 Oregon, 640; Mechem on Public Officers, sec. 444. No notice is necessary either where the officer’s tenure is at the pleasure of the appointing power, or where he holds for a particular term, and the pow'er of removal is discretionary. Mechem, sec.
From what is said in the next preceding paragraph it necessarily follows that it was entirely competent for the framers of the organic law to have prescribed whatever conditions as to removal or suspension may' have seemed advisable, and the adoption of them by the people in ratifying the Constitution wmuld have made them the law of-the land; and no incumbent of the office could be heard to complain of their enforcement. It is, moreover, altogether clear that the Gfov-‘ ernor has not been given any sole power of removal. Whereas he may suspend an officer from the performance of the functions of his office until the Senate shall act at its next session, he has no exclusive power to remove him or deprive him of-the future emoluments of his office. All such power existing under the
Under Section 154, sub. 6, R. S., electors had the right to pay poll taxes on Saturday, the third day of September, 1892, to qualify them to vote at the election of October 4th of the same year; and whether or not the collector was guilty of neglect of duty in not. receiving the taxes as alleged in the alternative writ, was a question for the Governor’s decision. Section
III. It is also argued that the power of suspension can not apply where, as in the case at bar, the'term of the officer suspended will expire before the next session of the Senate, and in support of the point it is urged that the officer cannot in such cases be ‘‘restored to the right to resume the duties of the office, ’ ’ unless the Governor should convene the Legislature in special session ; and, further, that it enables him to practically defeat the elective system. If this position is correct, then the power of suspension does not apply to those officers whose term is only two years.; except for the period, never more than about three months, which may antecede a session of the Legislature; nor will it apply to a four year officer after the second session of the Legislature during any gubernatorial term. This ■would result from the prescribed commencement of the terms of officers and from the fixed time of the meeting of the biennial sessions of the Legislature. Is it to be supposed for a moment that the intelligence of the constitutional convention was oblivious to the fact that, under the general effect of the organic law they
IV. Another position is, in effect, that the Governor has, as shown by the terms of Gillen’«s commission, extended Gillen’s appointment into the term of Johnson’s successor, and in doing- this he has also attempted to fill a term which does not become vacant until after the expiration of his own official life. Gillen’s commission bears date November 26th, 1892, and appoints him tax collector in and for Duval county until the adjournment of the next session of the Senate. The terms of Gillen’s commission can not extend his tenure beyond the actual period, whatever it may be. which the law attaches to the appointment; nor can any act of one Governor impair the exclusive authority of his successor as to any official function. Any expression further than that the appointment of Gillen is, on the pleadings before us, valid for all the purposes of this case as it now stands, would be a mere obiter, and will not be indulged in. The case of Hench vs. State ex rel., 72 Ind., 297, does not even tend to sustain the theory that Gillen’s commission is void if it be he can not legally hold for
V. The only points remaining to be considered are those as to the propriety of the remedy invoked, and the absence of Gillen- as a party. We will dispose of them in the order stated.
I. In Thompson vs. Holt. 52 Ala., 491, Thompson, the appellant, hid been duly elected Jalge of Probate for six y >ars, and having duly qualified by taking the oath and giving bond, and having received a commission from the Governor, he entered upon the duties of the office. The law required that Judges of Probate should give an additional bond whenever the grand jury, interim time, or in vacation, three members of the commissioners’ court should, by address to the Circuit Judge, require it, and it made the failure to execute such additional bond a forfeiture or vacation of the office. It also imposed on the Circuit Judge the duty of certifying the vacancy to the Governor, who was required to fill it. Thompson having during his term of office been required in the manner stated to give an additional bond, and the Circuit Judge having upon investigation refused to approve a bond, in due form, tendered by Thompson, the judge certified the fact of the vacancy to the Governor, who appointed Holt to fill the vacancy. Holt having qualified and been commissioned by the Governor to 'the
j
The case at bar is controlled by these autliorities, ■which are clearly distinguishable from cases cited for respondent. People vs. Stevens, 5 Hill, 616, where on an attempted election of a clerk by a board of aldermen there was a tie vote, the relator receiving nine votes, and the defendant, the then incumbent, the same number, and "it was declared that no choice was made; and the relator, who was seeking by mandamus the books and other official property from the defendant, claimed that one of the aldermen, Osborn, who had voted for the defendant, was not a lawful member of the board, and that consequently he, the relator, had been elected; whereas the defendant claimed there was no election, and the consequent right to hold over until another clerk should be elected and qualify. The majority opinion states, in effect, that the facts showed that the relator proposed to try the title to the office, and “ ‘in so doing he must necessarily try the title of Osborn to the office of alderman,” and that this could not be done collaterally; and that Osborn being at least a cle facto officer, his vote was not a nullity, but his acts were valid as to the public. The Matter of Gardner, 68 N. Y., 467; Gardner had in 1878 been elected an alderman and had entered upon the duties of his office January 1st, 1874, and as alderman was ex-officio supervisor, and in
In the case at bar there is a clear prima facie title free from all reasonable doubt, in Gillen, and there has been not even an irregularity in the exercise of the exclusive executive power of suspension and appointment, and the power to suspend is unquestionable.
2. Gillen is not a necessary party to this proceeding. The State is the real plaintiff here, just as it would be if he, instead of the Attorney-General, were the relator. The purpose of the action is to enforce the performance of a public duty, the interest in which is common to the whole community. State ex rel. vs.
The motion to quash, or demurrer, is overruled, and .it will be ordered accordingly.