30 Fla. 499 | Fla. | 1892
The defendant has filed an answer which is demurred to by the State, through the Attorney-General, as insufficient in law. Upon the law of the case as it has been settled by the former opinion, there is but one inquiry which this court can now make, and that is: - whether or not the act for which the alleged suspension was made is as matter of law a ground for removal within the grant of power made to the Governor. It is admitted on all sides that the courts can not inquire into the sufficiency or insufficiency of the evidence to prove that the defendant did or did not ■do what he is charged to have done, and has been suspended for doing, if the charge is, in its nature, one for which the Constitution authorizes suspension; and
It is contended that it is apparent that the suspension has not been made for the violation of any law or any instruction of the Comptroller, but for a violation of instructions of the Governor which are contrary to both the law, the instructions of the Comptroller and the opinion of the Attorney-General. The <>\.use of suspension, as shown by the order of suspension and the executive letter communicating the cause, is the refusal of the defendant to receive from Porcher L’Engle, on the third day of September, of this year, the poll taxes of William Marvin and others for the years 1890 and 1891, such taxes having been tendered by L'Engle to defendant as Tax Collector, in behalf of such persons, citizens of Duval county, and that day being the last day of which poll taxes could be paid so as to enable persons to vote at the then next ensuing general election, whereby such persons were lenied the right of suffrage.
It remains for us to consider the general contention, stated above, that it is apparent that the suspension has not been made for the violation of any law, or any instruction of the Comptroller, but for a violation of instructions of the Governor which are contrary to law, the instructions of the Comptroller and the Attorney-General.
Stating chronologically the facts relied on, it appears that on August 6th, of the present year, the Governor enclosed to the defendant copies of affidavits of prior date which complained :
1st. That the latter had refused to furnish to candidates and respectable citizens of Duval county, lists of persons -who had paid their poll taxes;
2d. That he refuses to receive the poll tax of one person tendered for him by another and to give the latter the receipt for the tax.
It appears from the answer that on June 22d, at Jacksonville, the defendant had written the Hon. W. I). Bloxham, who was then, as he is now. Comptroller, the following letter:
Jacksonville, Fla., June 22, 1892.
lion. W. I). Bloxham, Tallahassee, Fla. :
Dear Sir : — There are certain parties here who volunteer to pay the capitation tax of others, and take the receipts in the name of the jjersons for whom the payment is made, without their consent or knowledge, and deliver their receipts to them or not as they see fit. Now would you consider it my duty to issue poll receipts in such wholesale manner, and do you think I would be justified in so doing, and would it not be better for me to require the presence or demand from each and every person for whom a poll tax receipt is issued and deliver the same to the owner, and the one having the right to use it, because you might pay my poll tax, put the receipt in your pocket, and
Yours truly,
J. E. Johnson,
Tax Collector.
To this letter defendant received the following reply on or about June 24th :
Treasury Department, State of Florida, ) Comptroller’s Office, j-Tallahassee, June 28,1892. \
J. E. Johnson, Esq., Jacksonville.
Dear Sir: — Your personal favor just tohand, and I give a prompt personal reply. That question was up some years ago, and the ruling of the Comptroller was that the law did not require the collector to give receijits to any persons ■ for the capitation tax except those who were entitled thereto. You state that there are certain parties who volunteer to pay the capitation tax of others, and take the receipts in the name of the person for whom the payment is made, without their consent or knowledge, and deliver said receipts to them or not, as they see fit. You ask if I think it your duty to receive capitation taxes thus tendered. I certainly do not, and there is no warrant of law for it. By reference to section 4, Chapter 8850, approved May 25th, 1889, you will see that “receipts shall be issued by collectors of taxes to all persons upon payment of taxes hereinbefore required, and shall state the name of the party so paying,” etc. Section 2 of
Yours truly,
W. D. Bloxham.
Should you want a legal opinion, you can write to Hon. W. B. Lamar, as I think he gave this view of the case.
The answer of defendant further states : “That on the afternoon of August 9th, the defendant called upon the Comptroller at his hotel in the city of Jacksonville, and exhibited to him the above letter of August 6th from the Governor, with the affidavits attached thereto, and asked the Comptroller for instructions in relation to the defendant’s duty in receiving poll taxes from persons other than those from whom such taxes were due or their authorized agents, and also exhibited to the Comptroller the above letter from the latter dated June 23d; and that at such interview the Comptroller reiterated the instructions contained in said letter of June 23d, and positively and emphatically instructed defendant to receive no poll taxes from other than the tax payer or his duly authorized agent, and stated that these same instructions had been given to defendant’s predecessor in office, D. P.
Defendant then says in his answer: “That he refused to receive the money from L’ Engle for the poll taxes alleged to have been tendered for W illiam Marvin and others in pursuance of the positive, direct instructions of the Comptroller, of which fact the Governor was cognizant before his alleged suspension of resppndent from office. ’ ’ And again it is said : ‘ ‘That in respect of his action on September 3d, 1892, he pursued the instructions, oral and in writing, communicated to him by the Comptroller, in respect of which, instructions this respondent had no discretion, as the law, section 363, Revised Statutes, made it the duty of this respondent, enforced by his oath of office, to-obey the instructions of the Comptroller. True it is, the Governor of Florida had instructed this respondent, as shown by his letters of August 6th and 11th, 1892, that it was respondent’s duty to receive poll taxes from anyone who was willing to pay them; the» Comptroller instructed this respondent it was not his duty to receive poll taxes from anyone other, than the-tax payer or his agent duly authorized in that behalf.”
In connection with these allegations, another part of the answer is to b§ considered. It is defendant’s reply of October 13th, td the Governor’s notification of the 8th of that month, that the defendant should show
“Mr. L’Engle claimed, and appeared to be acting'for all parties who were candidates on the ticket with him, and I believed then, and still presume, that Mr. L’Engle informed the other parties acting with him of my offer to receive the money with the lists and deliver the receipts to the persons for whom the taxes were paid. This is the same ruling that I made in dealing with the candidates and representatives of the ticket upon which I was a candidate. There was no distinction made in treating the parties, but there was marked difference in the way that I was myself treated. When Mr. L’ Engle was insisting on coming into my office and procuring lists óf persons who had paid their poll taxes, he had been informed that, if he had, names for whom he desired to pay the poll taxes, and would give me the list, I would inform him as to whose taxes had already been paid, and upon payment for those not paid, I would issue receipts and deliver them to the proper parties upon payment of the amounts due me. Mr. L’ Engle refused to do this, and informed me that he had a right to examine my books at his pleasure, and to pay poll taxes and receive himself the receipts, and that he intended to insist on that right and to do everything in his power to
“A few days before the 3d of September, Mr. L’Engle met me and informed me that he had a list of names for whom he intended to pay poll taxes and demanded the receipts, and I informed him that, if he would come to my office during office hours and tender the money with the names, the receipts would be issued to the parties named. I asked him to bring them in as soon as practicable. Two or t::ree days before the 3d day of September I was informed by a gentleman who claimed to have information from persons acting with Mr. L’Engle that Mr. L’Engle intended to appear at my window at the last minute on the 3d day of September and tender the payment of the poll taxes for two or three thousand names, composed of names of persons, very many of whom were dead or moved away from the county, and I stated that, if the list was presented to me during office hours writh the request that I deliver the receipts, I should certainly accept the money and issue the receipts to be delivered to the persons named. I have reason to believe that this information was conveyed to Mr. L’Engle, and that he thereupon determined to wait until after the closing of my office at 12 o’clock on the 3d of September, and then make the tender, knowing that the money could not be received, and hoping to make political capital of his action. I was further informed, and believed, that for the purpose of making a tender after office hours, Mr. L’Engle had arranged for the
The answer further states that defendant delivered this letter to the Governor in the Executive office at ’Tallahassee on the day of its date, and that defendant then and there orally requested the Governor to inform him what law of the State, if any, he was charged with violating, and that to this request the Governor replied orally that it was not claimed that L’Engle had been authorized by the persons named to pay their taxes for them, and that defendant was not charged with the violation of any law of the State, but that defendant was charged with having violated the instructions given him by the Governor, in the foregoing letters of instructions; and that thereupon respondent insisted that he had violated no law, and had acted in pursuance of instructions from the Comptroller, and called the Governor’s attention to the letter of instruction of June 23d, from the Comptroller, and that to this the Governor replied that this.letter from the Comptroller was only a personal le+ter, and that respondent was not charged with the violation of any particular law, but only with having violated the instructions from the Governor contained in the letters from the latter.
It is also stated in the answer that, upon the receipt by the Governor of the last letter mentioned above as having been written to him' by the Comptroller, the Attorney-General, in an interwiew with tbe Governor,
The answer also states that “the Comptroller and Attorney-General of the State now insist and still advise this respondent that the instructions so commueated by the Comptroller to this respondent were in all respects, in their opinion, legal and proper.”
The question which arises on all this matter, viewed in connection with the order of suspension and the communication of the causes of suspension, both of which are a part of the answer, is, what is the answer the law makes to the condition of respondent?
In view, however, of other allegations of the answer as to the Comptroller recited above, and of the admissions of the demurrer, it can not be denied on this hearing that he instructed the defendant at an interview in Jacksonville in the month of August to receive no poll taxes from any other persons than the person by whom the tax was due, or his authorized agent, or that the Comptroller on the same day wrote a letter to the Governor on the subject of such interview, and stated that defendant was acting in compli anee with his direct instructions, and that he, the
It- is certainly clear from what appears above as to the Bliss tax matter of August 4th, that on that day and August 9th, the date of Johnson’s letter as to it, the defendant’s understanding of his duties, and of the Comptroller’s construction of the law, was that the tax might be paid by another person than the person owing it, provided the receipt was delivered to the voter ; and it is indisputable that the defendant’s written reply of October 13th, to the Governor’s notice to him to show cause why he should not be suspended, which reply was handed to the Governor on the 14th of October just mentioned, plainly states that such was his own view of the law, and also his understanding of the Governor’s and Comptroller’s view, as applicable to the Marvin matter of September 3rd ; and
The fact that the Governor, pending the investigation, said to the defendant that the latter was not charged with the violation of any particular law, but only with having violated the instructions from him contained in his letters, can not change the fact that the Governor has, as shown by the subsequent order of suspension and the notification of the cause of suspension, suspended the defendant for a violation of law. Such assertions, though not well considered, can not change the law, nor defeat the jurisdiction given by the Constitution to the Governor, where the lawful record of his action shows that he has suspended an officer for that which in his judgment of law is “good cause” therefor. Where a Governor finds that an officer, who is subject to the suspending provision of the Constitution,, is doing under the advice of the Comptroller and Attorney-General that which he believes to be contrary to law and an invasion of private rights, and he notifies the officer of this belief, and directs a change of action, and afterwards the officer notified continues to pursue the same course of action, and the Governor suspends him for so doing, and the question is brought before the courts, whether the suspension is void or'within the Governor’s power, there can be no doubt that the courts will be compelled to
The communication from defendant to the Governor, and the correspondence between the Comptroller and the defendant subsequent to the order of suspension are immaterial matters, but assuming that they had preceded it, they are clearly within the conclusions announced above. The same observation is applicable to the present advice to respondent, imputed by the answer to the Comptroller and Attorney-General.
The law establishes no office hours for collectors of taxes in this matter, and hence the proper hour of closing the office, like the tona fieles of L’Engle’s tender and all other matters not specially referred to above, are considerations which address themselves exclusively to the Governor in forming his judgment as to suspension; the Senate, and not the courts has power to consider them and • review his judgment thereon.
The peremptory writ must be awarded, and will be issued, returnable on the thirty-first day of the present month, at the hour of 4 o’clock p. m. It will be so ordered.