21 Fla. 652 | Fla. | 1885
delivered the opinion of the court:
1st. The Mayor of a city is without doubt an “ officer of the city,” and may, under section 15, page 248 of McClellan’s Digest, be expelled by “ two-thirds of the Council ” from his officefor disorderly behavior or malconduct in office.” It would be a hopeless task to attempt to show that he was neither a city officer, nor removable under the statute. It is not necessary that a city officer should be a member of the Council, to be so removable.
2d. There is under our judicial system no writ of error or appeal to any court from the action of a City Council expelling a city officer under this statute. The writ of mandamus is the only means of review or remedy for wrong in such cases. We consider it settled in this State that in such cases the court granting the writ can and should look into the whole case, including the testimony and ascertain whether or not injustice has been done. State ex rel. vs. Kirke, 12 Fla., 278.
The question to be disposed of is whether the.record discloses “ disorderly behavior or malconduct in office ” upon the part of the relator.
In the charter of Jersey City, in the State of New Jersey, there was a provision authorizing the Common Council to-expel a member for “ disorderly conduct.” In the case of the State ex rel. Tyrrell vs. The Common Council, 1st Dutcher’s Repts., 536, it was contended for the relator that the words last quoted covered only “ acts of turbulence, violence or disorderly conduct in the body and during the sessions of the Common Council.” The Supreme Court of that State held, however, that receiving bribes for his official influence and votes was disorderly conduct upon the part of a member within the meaning of the charter. The
The Constitution of the United States (Art. 1, §5, par. 2,) provides as to Congress that “ each House may * * punish its members for disorderly behavior, and with the concurrence of two-thirds expel a member.” “Under this power,” says the opinion above referred to, “ the Senate in .1797 expelled a member of ■ that ■ body for an'offence not committed in his official character.aTs ‘a 'member jnor-during a session of Congress, nor while the member was at the seat of government. But it is not clear that the power to expel is limited by the Constitution to the cause of disorderly behavior, and .in that respect it differs from the language used in the charter of Jersey City.” By referring to the “Annals of Congress,” p. 43, vol. 1, we see that the member in question was expelled “ for having been guilty of a high misdemeanor entirely inconsistent with his pub-
If we give the words “ disorderly behavior ” a wider meaning than that which the counsel for relator in the Jersey City case contended for, we still find nothing in the authorities which would extend them beyond either acts done in the particular official capacity, or inconsistent with official trust and duty, or amounting to a breach of the condition tacitly or expressly annexed to the office.
"We do not find it necessary, however, in the case before us, to draw the line of distinction between “ disorderly behavior,” and “ malfeasance in office,” under our statute.
The appointment of Knight as a policeman, while not prudential, nor to be commended, cannot, we think, be held to be either disorderly behavior, or malconduct in office. There is nothing disqualifying him in law to be a policeman ; no violation by the mayor of any city ordinance éither as to Knight’s qualifications to be a policeman, nor as to the power of the mayor to make the appointment (if the latter point can be considered,) has been shown. We do not take judicial knowledge of city ordinances, and if any have been violated the burden was upon the city to show what they are, and the violation. Freeman vs. State, 19 Fla., 552. It is not shown that the mayor, in making the appointment, had any purpose to violate his duty, or believed that Knight would make a bad or inefficient policeman, nor is there any complaint that Knight performed his duties as a policeman other than efficiently, or that any injury was intended or resulted to the city from such ap
The appointments made of Knight were but two, lasting but one day each. Looking at what Donnelly did and the circumstances of his'action, we do not see any such willful or gross violation of official duty as should necessitate a removal from office.
•The second specification is that the appointment of Knight was made while the latter was under arrest for a criminal offence, to wit: Knowingly and willfully offering and doing violence to an officer in the lawful execution of his legal duty. It is not alleged that the relator knew that Knight was under such ai’rest at the time he made the appointment. Upon this, however, we are not disposed to put stress, in view of the disposition which has been manifested that the case should be considered on its merits. It is, moreover, a rule that in the charges in such cases the •technical nicety required in the indictment is not necessary. •1 Dillon, sec. 255. What is the evidence that Knight was under arrest for the offence alleged at the time he was appointed, or that, if he was so under arrest, the relator knew it ? The first appointment was on the 8th, and the second on the 9th day of May, of the present year. On the 8th Perry resigned and Lassiter reported the fact to the mayor. An hour afterwards Knight reported to Lassiter, (whose testimony we are now stating,) that he, Knight, was on the police force, and showed to Lassiter the police badge he,
Sheriff Zehnbar testifies that he does not recollect time exactly, but it was sometime about the election of the Constitutional Convention. Knight came to witness’ office, and demanded the pistol, which witness had taken from him the day he arrested “ him by order of the inspector of electionsaid to me he was a policeman; “ showed me the police badge which he was wearing, said he was appointed by Ur. Donnelly, the Mayor.” Witness told him he could not have the pistol. Knight has been arrested on several occasions. He was arrested on charge of disturbing election for Constitutional Convention ; again, for carrying concealed weapons; and again, tor resisting officer. “ I had Knight in custody for disturbing election, carrying concealed weapons and resisting an officer. He was under arrest for these crimes on the 8th, 9th and 10th of May.’’
. A. Y. Mount testified that Knight was on May 7th under arrest under’ a criminal charge. ' It. was, as he “ presumes,” for riotous proceedings and disorderly conduct at. the polls at the election on the 5th day of May.
Lassiter’s testimony does not show that Knight was arrested or under arrest for the special offence alleged in the charge, (sec. 1, ch. 3276, Laws Florida,) nor can it be said that Zehnbar does. It does not go far enough.
Mount speaks only as to the 7th of May, the day before the first appointment, and not as to. .the offence alleged.
We think it material that the testimony should have shown that Knight was under arrest for the particular of-fence alleged. In the absence of such a showing it is unnecessary to say anything as to whether such proof would have constituted disorderly behavior or malfeasance in ■office.
The third specification is that the relator did endeavor to prevail on B. E. Lassiter, on whose affidavit the warrant was issued for the arrest of Knight for the perpetration of ■said crime, to withdraw said prosecution. There is no proof that there was any affidavit made by Lassiter as to the alleged crime. This disposes of this feature of the case, yet we may remark that we hardly think the testimony •shows any endeavor amounting necessarily to disorderly behavior or malconduct in office.
We think the testimony fails entirely to support the ■charges.
The peremptory writ is granted.