State ex rel. Attorney-General v. Johnson

30 Fla. 433 | Fla. | 1892

R.AN'UY, CJ. J.j

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 shall under this section resume the duties of his office shall suffer any loss of salary or other compensation in consequence of such suspension. The suspension or removal herein authorized shall not relieve the officer from indictment for any misdemeanor in office.” Tax collectors are county officers, and are chosen by the duly qualified electors of each county, and their term of office is two years. Section 10, Art. VIII, Constitution. All county officers continue in office until their successors are duly qualified. Section 14 of Art. APT. The Governor is authorized to fill vacancies. Advisory Opinion, 25 Fla., 427. The present term of respondent expires with the commencement of the next regular term, on the first Tuesday after the first Monday in the coming January, A. I)., 1898. Sections 10 and 14 of Art. XVTTT. ,

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. suspension may be inflicted, is claimed to be judicial in its nature, and not within the official attributes of the Governor. Our judgment is that whether the power be strictly judicial, or, on the contrary, administrative in its character, it exists In Lite Governor. Moreover it is indisputable that if there is an adjudication anywhere, which, under a constitutional provision professing, like ours, to give the power of suspension or removal to a Governor or other executive or administrative functionary, holds that such functionary has not the power to inquire into and decide upon the existence of the cause of removal, it has not been presented by counsel; nor has one been found by us. in our own researches.

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 illegal and void. The opinion clearly shows that no provision of the Constitution, nor of any statute, professed to give the Governor the power of removal or suspension, and that (he law did not give the conviction the effect of forfeiting the office, but that under ¡the Constitution the jurisdiction to vacate the office was in the court of impeachment, in which the Constitution invested a part of the judicial power of the • State, the Senate having the power of trial, and the Assembly the right to impeach. Another case cited is that of Dullam vs. Willson, 58 Mich., 893, decided ' in the year 1884, where the removal was for “official misconduct aud habitual neglect of duty.” By an amendment made in 38(53 to the Michigan Constitution,At was ordained:

“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 amendment, and upon specific charges oí the partió ular acts relied on to make out the causes, and upon reasonable notice and opportunity for a hearing, and that the Governor lias judicial power to examine into and pass upon the charges. He says: “It is only when the causes named exist that the power conferred can be exercised. It follows as a, necessary consequence that the fact must be determined before the re- ' moval can be made ; * * * and the first question is, what is the proper tribunal in which such facts as are to be ascertained. In my opinion this provision of the Constitution requires no legislation to make it effective. Read in the light of the history of the times, and the surrounding circumstances when it was. adopted, the grant of power is to the Governor, coupled with the duty enjoined to examine into the acts of any public officer, and to remove from office for gross neglect of duty or for corrupt-conduct in office, any of " the officers specified. The amendment for this purpose clothes him with judicial power. It is implied in the grant, and without it the grant would be nugatory and ineffectual to accomplish the purpose for which it was given.” Again he says that the amendment, in effect, gives the Governor “the right to try the question whether the officer is guilty or not, and to remove him from office.” There is in the opinion nothing inconsistent with these views. At the foot of it we find the following: “Sherwood, J. concurred. Cooley, C. J.: I concur, both as to the right of the respondent- to be heard upon charges, and as to the power of the Governor under the Constitution to decide upon the charges.” Then follows the .opinion of the fourth judge, Campbell, and he alone asserts'the view that any court proceeding was necessary; and whereas he concurs with the other judges in a judgment for the respondent on the ground that respondent had had no notice or opportunity for a hearing, still his views affirming the necessity for a proceeding in court are entirely antagonistic to those as to the sole power of the Governor to determine the existence of the cause for removal, asserted by the court through a majority of its judges, and for which the adjudication is an authority. Of the other case relied on in this connection, Page vs. Hardin, 8 B. Mon., 648, it is only necessary to' say that, like the one from New Jersey, supra, there was no pretense of grant of power of removal or suspension, to the Executive; and, considering the differences of organic law, its conclusion that the power of removal was confined to the court of impeachment is, like that in the New Jersey case, not in conflict with the judgment of the majority, of the Michigan court, Dullam vs. Willson. Viewed in the light of the designated difference in the Constitutions of Michigan and those of New Jersey and Kentucky, there is no real contrariety of views or j udgment to be found in the opinions of the three courts, excluding of course Judge Campbell’s opinion as to the necessity for action by a court where there is a special grant to the Governor of power to remove as in Michigan.

. That the grant of such a power as has been conferred up ) i b he Governor by the section under'consid(■ration, invests him with the power to investigate, and to decide as to the existence of any of the causes for which a suspension of an officer may be made, seems to us beyond controversy in the light of common reason; which it is upon the authorities. Had It been the purpose that the suspension should take place only upon the ascertainment by a court, or other distinct tribunal, of the existence of the cause for suspension, it doubtless would have been made the necessary duty of the Governor to suspend upon such ascertainment, or such ascertainment would have given the effect of working, ipso foHo, a suspension. It would not have been left to the discretion of the Governor to suspend or not, after the supposed tribunal had made its finding; nor would such finding have been subjected to rhe review and reversal which must- be, and as we understand is, conceded to be, reserved to the Governor in the power “to reinstate the officer so suspended, upon satisfactory evidence that the charge or charges against him are untrue.” Certainly the only status which could be claimed for such court or tribunal would be that of merely an advisory body, and the Governor wTould have an appellate or supervisory, but not an original, jurisdiction to ascertain the truth of the charges. It is moreover a fact that the convention of 1885 rejected the following propositions : One, that county officers should be removed for incompetency, willful neglect of duty, malfeasance, misfeasance, drunkenness, gambling and any violation of tlie criminal laws of the State upon conviction in the Circuit Court after indictment by the grand jury of the county, the officer to be suspended from the performance of his duties upon the tiling of the indictment, and the Governor to appoint a person to perform the duties of the office pending the .judicial proceedings, and with further power in the Governor, when no grand jury was in session, to suspend the officer charged with such offenses, if he should think a case was made upon the papers presented to him. Another, that all officers not liable to impeachment might be suspended or removed from office by the Executive in such manner, and for such causes, as might be prescribed by the Legislature. And another, that the County Commissioners should have the power to suspend. county officers for habitual drunkenness, neglect of duty,"incompetency, and the commission of felony; the board to give notice of the charge and of the time and place of trial, and to declare the office vacant if the charge was sustained on the trial, and the Governor, thereupon, to order an election to fill the vacancy; and such trial to be within thirty days from service of the notice. And another, that the suspension by the Governor should be upon a recommendation of the grand jury of the county, setting forth the charge against the officer; and still another, that the suspension should be after conviction by due course of law. Vide Journal of Constitutional Convention of 1885, pp. 119, 120, 184. The .conclusion that the intention was to lodge in the Chief Executive,, and in him alone, the exclusive power to investigate and decide, is to our minds irresistible when we consider the express grant of the Constitution to suspend for cause and reinstate, and the rejection of propositions to give the power of trial to other tribunals, including the courts.

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 misconduct, are preferred to the Governor, of which notice is given the member's charged, and he acting upon the charges so made removes them from office, his action is final and can not be reviewed or held for naught by the courts on a proceeding in quo warranto, whether he erred or not in exercising the power conferred upon him. And in Keenan vs. Perry, 24 Texas, 253, where the Governor was given power of removal for certain enumerated canses, the decision was that no principle is more firmly established than that where a special and exclusive authority is delegated to any tribunal or officer of the government, and no mode of revising his decision by appeal or otherwise is provided by law, his action is final and conclusive of the matter, and the law madres him the sole judge of the existence of the cause of removal. Dixon, C. J., speaking for the court in State ex rel. vs. McGarry, 21 Wis., 496, a quo warranto proceeding, where a statute gave a board of supervisors power to remove for incompetency, improper conduct or other cause satisfactory to such board, said: “We are clearly of opinion that the power of the board is absolute and its determination final when acting within the fec-ope of' the power. The board may remove for incompetency, improper conduct or other cause satisfactory to the board. By- ‘ other cause’ we understand other kindred cause showing that it is improper that the incumbent should be retained in office. If the board should attempt to remove him for some cause not affecting his competency or fitness to discharge the duties of the office, that would be an excess of power, and not a removal ■within the statute. It would be equivalent to removing him without assigning any cause — a merely arbitrary removal, which the statute does not authorize. The cause must be one which touches the qualifications of the officer for the office, and shows he is not á fit or proper person to perform the duties; and when such cause is assigned, the power to determine whether it exists or not is vested exclusively in the board, and' its decision upon the facts can not be reviewed in the courts. The only question of judicial cognizance is whether the board has kept within its jurisdiction, or whether the cause assigned is a cause for removal under the statute.” See also State ex rel. vs. Common Council of Watertown, 9 Wis., 254; State ex rel. vs. Prince, 45 Wis., 610; State vs. Frazier, 48 Ga., 137; Patton vs. Vaughn, 39 Ark., 211; Donahue vs. County of Will, 100 Ill., 94; Ex parte Ramshay, 83 Eng. Com. Law, (18 Ad. & E., n. s.), 173.

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), and vested the judicial power in designated courts {Ibid, 1001); and the amendatory provision, set out above, was added not to the executive or judicial articles or departments, but to the “impeachments and removals from office” article, and the Supreme Court of that State held, in Dullam vs. Willson, supra, that it was a judicial power, but was to be exercised, as indicated by the Governor. If the framers of our Constitution are, as claimed by counsel, to be charged with notice of this decision, when acting in convention, they must be accorded a knowledge of the conclusions of the cpurt, which both affirmed the validity of a grant like that made to our Chief Executive, and held that the judicial power to hear and decide was implied in the grant.; and the ordinary professional and lay judgment must be that the makers of our Constitution based their action upon thé adjudication which sustained their work, rather than on a dissential view which is entirely fatal to its efficiency. There are authorities which hold, and with force, that such power when vested in a functionary of the executive department of the government, is not judicial in its nature. State ex rel. vs. Hawkins, Donahue vs. County of Will, supra. It is however, entirely unnecessary ' to ascertain whether the nature of the power is strictly judicial, or quasi judicial, or administrative, or what is its precise classification, since we are altogether satisfied that it is not a power given to the courts by the fourth, or judiciary, article, which provides that the judicial power of our State shall be vested in the-courts there designated. If the power is judicial in its character, the fact nevertheless is that it has been given to the Governor by the section of the executive article under discussion, and not to the courts, and the Governor exercises it as a member of the executive department of the government, and not as a court, or member of the judiciary department; and the courts enumerated in the judiciary article, sections 1 and.34, as the depositories of the judicial power of the State, can not exercise it any more than they can the power of trying an officer under impeachment; and for any such court to attempt it would be a no less bald usurpation of the constitutional power of the Chief Executive, than an attempt to entertain an impeachment trial would be a lawless assumption of the exclusive functions of the Senate, under the 29th section óf the legislative article, to try impeachments.

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,Governor and constables, were appointed by the Governor, or by him with the concurrence of the Senate. The Governor, Lieutenant-Governor, members of the cabinet, Judges of the Supreme and Circuit Courts, were subject to impeachment, the trial being by the Senate, and removal from office following conviction. Section 29, Art. IV, Legislative Department. The same section provided that all other officers who should have been appointed by the Governor, by and with the advice of the Senate, might be removed from office “uponthe recommendation of the Governor and consent of the Senate.” The 18th section of the fifth, or executive article, made assessors of taxes and collectors of revenue, who were appointed by the Governor, with the consent of the Senate, and whose terms were two years, removable upon the recommendation of the Governor and consent of the Senate, and orMained that county treasurers, county surveyors, • superintendents of common schools and county commissioners, whose terms wTere each' two years, were ■•subject to be removed by the Governor “when in his Judgment the public welfare will be advanced thereby; ;provided, no officer shall be removed excejit for wilful neglect of duty, or a violation of the criminal laws of the State, or for incompetency.” Justices of the peace were appointed for four years, and were removable by the Governor “for reasons satisfactory to him.” County judges, state attorneys, sheriffs, and clerks of the Circuit Court were appointed in the same manner, but for four years (sections 9 and 10, judiciary article),. there being,-however, no provision as to their removal other than m section 29 of Art. IV, supra. State ex rel. Holland vs. Ledwith, supra.

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. 454; Sweeney vs. Stevens, 46 N. J. (Law), 344; People ex rel. vs. Whitlock, 92 N. Y., 191. Of course the authority which lawfully create^ an office has full power to make the incumbent removable at the mere will of the appointing power, or for cause. State ex rel. vs. Ledwith; People ex rel. vs. Whitlock, Sweeney vs. Stevens, supra; Mechem, sec. 454. There is,, however, authority which holds, that no notice is necessary even where the-power of removal is limited to-designated causes. State ex rel. vs. McGarry, supra. Mechem also puts this construction on Patton vs. Vaughn, 37 Ark., 211, and State vs. Doherty, 25 La. Ann., 179.

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 former Constitution, has been taken away, and the function of the Governor in a recess of the Senate is limited and clearly defined. .Where, in the performance of the duty enjoined upon him by the mandate to “take care that the law be faithfully executed” (sec. 6, Art. IV, Const. 1885), he in the exercise of a ■ fair and just official judgment, finds that there is the’ misfeasance or malfeasance or neglect of duty in office, or the drunkenness or incompetency which, in the light of the public good, requires the removal of the officer, or where there has been the commission of a felony, the Constitution contemplates that the suspension shall be made. And though this power of suspension might have been bestowed without any right of hearing in the officer, or with the right of hearing before there could be any exercise of the power, neither course has been pursued. The provision that the Governor “may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against him are untrue,” was not intended to merely give an arbitrary or wilful discretion to the Executive to make inquiry or not as might please a caprice or a prejudice,- but it w'as both to impose upon him the duty of hearing evidence upon the charge and to secure to the suspended officer the constitutional right to be heard by the Governor upon the charges which the latter has communicated to him upon suspending him. It is as much the duty of the Governor on suspending an officer to notify him of the cause of the suspension, or charge upon which he has been suspended as it is to suspend when the facts of a partió cular case, viewed in the light of the public weal, demand removal; or as it is to refuse to suspend when they do not seem to demand removal or to reinstate when under a misapprehension he may have erroneously suspended an officer. By this provision last quoted above the officer’s right to a hearing has been postponed till after the suspension. This is one of the conditions upon which he accepts the office, and it is as obligatory upon him as are those as to age, residence or bond, or any other which the Constitution or any talid statute may prescribe. That a Governor may give notice of the charges before suspension, does not defeat the plain policy o f the Constitution not to require him to do so, nor does it relieve him from the specific duties imposed by that instrument in this matter. It can not be denied that there may be cases in which the public interest would suffer grievous detriment by postponing the suspension till after the hearing. The hearing contemplated, though its regulation is left to the Chief Executive, (at least until the law making power shall act), is a full and fair hearing, and'often will take much time. It is always to be presumed that he will not hesitate to reinstate at any time, at least in the recess of the Senate, where it may be shown that he has erred in the act of suspension. This is, of course, a consideration which the people have confided to the conscience of the Executive under his responsibility to them, yet it is patent that the exercise of the executive power to reinstate implies the status of suspension in the officer.

In reaching this conclusion we have not omitted to give serious consideration to the officer’s property rights in his office ; the right to its tenure and the enjoyment of its profits and honors 'against all unlawful invasion. Of course he is a public agent or servant, and has no such title to his office as prevents the power which gave it from terminating it or changing it. He holds subject to the law of the land as to its termination, modification, and as to suspension or removal therefrom; State ex rel. vs. Ledwith, State ex rel. vs. Hawkins, Sweeney vs. Stevens, and Donahue vs. County of Will, supra; Taft vs. Adams, 3 Gray, 127. So long as the Governor acts within the limits of his power the courts are powerless. The Constitution has made the Senate the sole check upon any erroneous action on his part. ' Any mere error of judgment, whether free from or attended by improper motive is beyond our cognizance, and not merely because, as in most of the adjudicated cases, there has been given no power to any tribunal to correct or arrest the effect of his error, but for the reason that a branch of the legislative department lias been given that express power.

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 342 R. S. can not be made to control.it, as a matter of law, because the thirtieth day before the election fell on Sunday. The latter section required the collector to furnish the supervisor of registration, thirty days before the election, a list of ail persons who had paid their capitation taxes for two years next preceding the year of the election.

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 proposed to the people, many suspensions might necessarily occur of officers whose terms would expire before the next ensuing session of the Legislature, or that the people did not so understand when they ratified it ? Both the members of the convention and the electors are presumed, and conclusively, to have understood it, and yet we find that the power of suspension has been given without any limitation to periods avoiding the result referred to. The purpose of the grant of power was good government; it was. entrusted to the Governor because the people believed the public welfare demanded it. They knew that there could be no resumption of duties -where the officer’s term would expire, and that in such cases the refusal or omission of the Senate to remove would merely prese ve the officer’s right to the compensation he would have earned had he not been suspended. Whatever defeat of the elective system it involves, was intended; it, however, in its theory, involves none, as the delinquencies falling within the enumerated causes of suspension must be held to be unanticipated by the people in any particular instance, and wherever they occur and the suspension or removal takes place, the expressed will of the people has been enforced by the suspension and removal. If it be that a Governor may err in executing the powers, it must be admitted the convention and the people were well aware that this might be, yet they entrusted him with the power, and they made it applicable as well when the officer’s term would expire before the next Legislature as when it would not! We may remark here that we are aware that a similar argument is used by Judge Campbell in his opinion referred to above; but it must be remembered that he was contending against the power of the Governor to remove on his own action, and this argument, like his position, finds no support; but, on the contrary, condemnation in the conclusion of the majority of the Michigan court.

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 the time it specifies, but rather shows that it is valid for so long as the la.v will entitle hnn to hold; and such, in our judgment is the legal effect, of the commission. Advisory Opinion as to Attorney-General, 14 Fla., 277.

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 vacancy, demanded the books and' other property of the office, but Thompson refused to deliver, whereupon Holt instituted a statutory remedy given to compel delivery in such Cases. The opinion of the Su-. preme Court of that state, delivered by Brickell, C. J., holds that the giving of the additional bond was a condition upon which the continuance in the office depended, and that the statutory proceeding to compel the transfer of books and other property of a .public office, though more summary and less formal,’ was merely cumulative, and would lie wherever mandamus could be obtained at common law. “4 mandamus ,” says this learned judge, “to compel the delivery of property, could not- be invoked when in reality the object was to test the title to the office. If the title was the real question in issue, the courts could not interfere by -mandamus, but remitted the parties to quo toarranto or other appropriate legal remedy. The relator must have exhibited a clear prima facie title, entitling him to the custody of the property of the office, or the courts would not compel its transfer to him. The same rule must prevail with reference to the statutory proceeding. It can not be perverted into a method of determining the' strength of rival claims to a public office. . The complainant resorting to it must show a -prima facie title to the office free from all reasonable doubt — a title to 'which the law attaches the possession of the property of the office, and the right to exercise the functions of the office until in a direct judicial proceeding that title has been vacated. A prima facie title to a public office confers a right to exercise it's functions, and a right to the possession of the insignia and property thereof. On this prima facie title the court will compel a delivery of the insignia and property, that the functions and duties of the office may be exercised.” It was also held that the action of the Circuit Judge in refusing to approve the additional bond could not be inquired into collaterally or on the special proceeding to deliver the official property, and*the order made on the spc-. cial proceeding for the delivery of the property was affirmed. “Public officers,” says the opinion, “are elective, and the returns of elections are made to the Secretary of State, on whose certificate the commission originally issues. When subsequently to an election a vacancy occurs otherwise than by resignation, some public officer, ministerial or judicial, acting under the sanction of official oath, is charged with the duty of ascertaining and certifying the fact of vacancy to the Governor. On this certificate an appointment is made, when it discloses that the office is vacant. The commission of the Governor, whether granted on the certificate of election, or a certificate of vacancy, is the highest and best evidence of who is the officer, until on a quo warranto, or a proceeding in the nature of quo warranto, it is annulled by a judicial determination. It is this commission which imparts to the courts judicial- notice and which informs the community who are clothed with official authority and bound to official duty. In a proceeding, whether by mandamus or under the statute, to compel the transfer of property attached to a public office, this commission is a clear prima facie title to the office, on which the courts will proceed without indulging any inquiries behind it, when it is founded on a certificate of election or a certificate disclosing vacancy' made by proper authority. Inquiries behind it would generate a controversy as to title to the office, which, as we hgve already said, can not be entertained either on an application for a mandamus or in the statutory proceeding., The court must rest on the prima facie title, and award the keeping of the property of the office to this title, for the time being, without adjudicating whether the relator has or has not the actual title.” In State ex rel. vs. Saxon, 25 Fla., 792, 796, 6 South. Rep., 858, we said that if the relator gave the bond and qualified and received the commission he had his remedy by mandamus against Saxon to compel him to surrender the custody of the books, files, office room and other property of the,office without prejudice to the question of the ultimate right to the office. In State ex rel. vs. Atherton 15 Minn., 221, the decision was that upon mandamus at the relation of the holder of a certificate of election to the office of clerk of the district court, who has given the bond and taken the oath prescribed by law, the relator is entitled to the seal and other property of the office against one holding by virtue of an appointment till his successor is elected and qualified, and the .court will not go behind the certificate of election and try the question whether or not the relator was eligible to such office. These conclusions are affirmed in Crowell vs. Lambert, 10 Minn., 369; State ex rel. vs. Jaynes,

j 19 Nebraska, 161; People vs. Kilduff, 15 Ill., 492; People vs. Head, 25 Ill., 325; High’s Ex. Legal Remedies, section 78, et seq. See also State ex rel. vs. Frechelders, 35 N. J. (Law), 269.

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 November, 1875, under a law of that year, one Carr was elected alderman, and one Coates, supervisor, and were in possession of the offices. «Gardner claiming that the act of 1875 was unconstitutional, and complaining that the clerk of the board refused to call his name, or recognize him as a member, asked a mandamus to compel him to do so. People ex rel. Dolan vs. Lane, 55 N. Y., 217, holds that where one has been installed into an office and is in possession discharging his duties under color of law, and where his right to the office depends upon the construction of a statute so ambiguous as to be difficult of interpretation, the title to the office should not be determined in a proceeding by mandamus instituted by another, who had been removed therefrom and claimed the office, to compel payment to him of the salary, the incumbent of the office not being a party to such proceeding. People ex rel. vs. Goetting, 133 N. Y., 567, was also a mandamus by one removed from the office of clerk, against the respondent who had removed him, to compel respondent to recognize him as clerk, and the new appointee was occupying and performing the duties of the office. In these cases there was either no clear prima facie title in the relator or the incumbent was not, and properly could not have been, a party.

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. When the power has been executed in due form it is the duty of the suspended officer to cease to exercise the duties of his office, and it is likewise his duty to turn over the books to the appointee commissioned by the Governor to perform the duties of the office. If it is not done voluntarily, and there is no remedy to compel it, then nothing but confusion in government will follow. It is a mistake to suppose that man-damns is excluded or avoided by the mere fact that there is another remedy. The law is that there must be another specific and adequate remedy. Ray vs. Wilson, 29 Fla., 342, 10 South. Rep., 613 ; s. c. Lawyers Reports Annotated, Book 14, p. 773 ; Tapping on Mandamus, 18, 19 ; High Ex. Legal Rem. secs. 9, 15, 16, 17; Baker vs. Johnson, 41 Me., 15; People vs. Stevens, supra; Harwood vs. Marshall, 9 Md., 83. Mandamus is clearly the only adequate remedy for preventing the confusion alluded to, and particularly as the Senate, and not the courts, is the body to pass, upon the correctness of the action of the executive, so-long as he keeps within the range of the power confided to him.

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. Board of County Commissioners, 17 Fla., 707; Hamilton vs. State, 3 Ind., 452 ; County of Pike vs. People, 11 Ill., 202; City of Ottawa vs. People, 48 Ill., 233; People vs. Collins, 19 Wend., 56; People vs. Halsey 37 N. Y., 344; State vs. County Judge, 7 Iowa, 186, 202; State ex rel. v. Crawford, 28 Fla., 441, 10 South. Rep., 118. In Walter vs. Belding, 24 Vt., 658, where the books of record of a town were wrongfully held by a. person claiming to be the town clerk, it was held that the writ of mandamus was the proper remedy, and that the same might with propriety be supplicated by the legal town clerk, but if done by the town agent In behalf of the town,, it was no such irregularity as to defeat the proceedings. The Attorney-General is a proper representative of the people for instituting these proceedings. It.is not an action of replevin for personal property of Gillen, nor an ejectment for his real estate.

The motion to quash, or demurrer, is overruled, and .it will be ordered accordingly.

Case Details

Case Name: State ex rel. Attorney-General v. Johnson

Court Name: Supreme Court of Florida

Date Published: Jun 15, 1892

Citation: 30 Fla. 433

Court Abbreviation: Fla.