State Ex Rel. Hatton, Jr. v. Joughin

138 So. 392, 103 Fla. 877

• Court: Supreme Court of Florida
• Decided: December 12, 1931
• Status: Published

Opinions

Pee Curiam.

This proceeding in quo warranto was instituted by relator, L. M. Hatton, Jr., to test' the right of respondent, Eobert T. Joughin, to exercise the title, privileges, and franchises of the office of sheriff of Hills-borough County, Florida. The respondent in due course filed his return to the writ in which he denied any claim or right on the part of relator to hold or exercise title to said office and asserted that he was holding it by virtue of a lawful and valid commission issued to him by the Governor of the State of Florida. The cause now comes on to be heard on the demurrer of relator to respondent’s return and his motion for judgment of ouster.

The writ and the return thereto disclose that L. M. Hat-ton, Jr., was duly elected sheriff of Hillsborough County at the general election held in November, 1928, that he ■ was commissioned by the Governor as such sheriff for the four-year term beginning in January, 1929, that on October 3, 1929, the Governor, by virtue of Section Fifteen of Article Four of the Constitution, promulgated his executive order suspending the said L. M. Hatton, Jr., from said office for misfeasance, malfeasance, neglect of duty, drunkenness, and ineompeteney in office, and that on October 5, 1929, the Governor appointed and commissioned the respondent, Robert T. Joughin as sheriff of Hillsborough County pending the suspension of L. M. Hatton, Jr.

The first question raised by the demurrer to the return is whether or not this Court is empowered to or will review the executive order of the Governor suspending the relator from the office of sheriff of Hillsborough County.

The executive order of the Governor was predicated on Section Fifteen of Article Four of the Constitution, the pertinent part of which is as follows:

‘ ‘ All officers that shall have been appointed ox 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 a felony, or for drunkenness or ineompeteney, and the cause of suspension shall be communicated to the officer suspended and to the Senate at its next session. And the Governor, by and with the consent of the Senate, may remove any officer not liable to impeachment, for any cause aboA^e 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 satisfactorj7' eAddence that the charge or charges against him are untrue. If the Senate shall refuse to remove, 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

The power vested in the Governor to suspend an officer under this section of the Constitution is executive. Owens vs. Bond, 83 Fla. 495, 91 So. 686. It is in no sense judicial or quasi judicial. It involves judgment and discretion on the part of the Governor, including the power to hear and decide, and while the rule seems well settled that so long as the Governor acts within his jurisdiction as charted by organic law, his action will not be reviewed by the Co.urts. State ex rel. Holland vs. Ledwith, 14 Fla. 220; State ex rel. Attorney General vs. Johnson, 30 Fla. 499, 11 So. 855; People ex rel. Johnson vs. Coffey, 237 Mich. 591, 213 N. W. Rep. 460; In re Guden, 171 N. Y. 529, 64 N. E. Rep. 451, 12 R. C. L. 1008, 1010. This general rule, however, is modified by the exception, that such exercise of power being that affecting the lawful rights of individuals, the jurisdictional facts, in other words the matters and things on which the executive grounds his cause of removal may be inquired into by the Courts. State ex rel. Attorney General vs. Johnson, 30 Fla. 433, 439, 11 So. 845; State ex rel. Bridges vs. Henry, 60 Fla. 246, 53 So. 742.

In Bridges vs. Henry, supra, this Court held .that the jurisdictional facts on which a removal from office under Section Fifteen of Article Four of the Constitution was accomplished might be inquired into by quo warranto. In fact when the title to office is involved, quo warranto is the usual method of attack though a like result may be reached in some cases by mandamus, as in Attorney General vs. Johnson, supra, where the appointee proceeded against the suspended officer to require him to turn over the books and office equipment. Mandamus being a collateral attack on the title to office may be supported by liberal or general statements of causes for removal while quo warranto being a direct attack must be predicated on direct and positive statements of legal facts supporting the cause of removal. The scope of the two proceedings being fraught with marked differences, decisions based on them should be considered in the light of these differences.

The second and third assignments of error present the question of whether or not, in his suspension from office, the relator was deprived of any right guaranteed him under Section Fifteen of Article Four of the Constitution.

One’s right to office and the emoluments thereof is protected by the Fourteenth Amendment. Pennoyer vs. Neff, 95 U. S. 714, 24 L. Ed. 565. Relator’s right to exercise and enjoy the office of sheriff of Hillsboro County is a species of property which the law will protect and will also redress if he is wrongly deprived of it, yet he must bear in mind that he, as well as every other officer appointed or elected in this State who is not subject to impeachment, accepts his appointment or election subject to suspension by the Governor for the causes enumerated in Section Fifteen of Article Four of the Constitution.

Under Section Fifteen of Article Four, Constitution of Florida, officers may be suspended from office by the Governor for malfeasance, misfeasance, neglect of duty in office, the commission of a felony, for drunkenness, or incompetency, and if the Senate advises and consents to such suspension at its next session the officer is. removed. It therefore takes the joint action of the Governor and the Senate to remove an officer, the action of the Governor being limited to suspension. The power of removal being executive and in no sense judicial, the courts will not interfere with the executive or the Senate in the performance of this function. When, .however, the function has been exercised as in this case, it by no means follows that the power of the Courts may not be invoked to determine which of two commissioned claimants has the legal right 'to exercise and enjoy the title to the office brought in question.

But, the relator contends that he was not given a hear ing and an opportunity to disprove the charges against him nor were the causes of his suspension communicated to him as contemplated by Section Fifteen of Article Four of the Constitution.

The record discloses that, prior to his suspension, the Governor summoned the relator before him and reviewed the charges against him, that the order of suspension was served on relator October 4, 1929, and transmitted to the Senate with supporting affidavits April 9, 1930, that a Committee was appointed from the Senate which considered the ground of such suspension, took testimony, heard relator in person, and by counsel in his defense, and furnished him a copy of all proceedings had before said committee, after which the committee made its report t'o the Senate which in executive session on April 28, 1930, advised and consented to the removal of relator from office.

We think this procedure on the part of the executive and the Senate met every requirement of the Constitution. The relator had no constitutional right' to a notice and hearing of the charges against him prior to suspension. State ex rel. Attorney General vs. Johnson, 30 Fla. 433, 11 So. 845. The Governor may, after suspension, reinstate the officer suspended on satisfactory evidence that the charge or charges against him are untrue, but this fact', the Governor may determine in any way that may seem to him just and proper. This provision does not contemplate a second hearing and examination of the charges unless the Governor deems such course expedient nor does the constitution contemplate that the suspended officer either before or after suspension be given a trial as if he were in a court of justice. It appears that the cause of suspension was communicated to relator and to the Senate at its next session and that is all the Constitution requires. After a thorough examination of the grounds of suspension and after extending Relator the privilege of being heard in his own behalf, the Senate advised and consented to the suspension. In this procedure we are unable to see that any constitutional right of the relator was infringed on.

It is next contended that' the message of the Governor transmitting the order of suspension to the Senate was ineffectual and did not give the Senate jurisdiction of the cause for the reason that it did not in terms recommend ■the removal or reinstatement of the Relator.

The message of the Governor transmitting the order of suspension to the Senate was as follows:

“In pursuance of Section Fifteen of Article Four of the Constitution of the State of Florida, I have the honor to transmit herewith Official Copy of the Executive Order of Removal of L. M. Hatton, Jr., Sheriff of Hills-borough County, Florida, together with Affidavits supporting the same. ’ ’

This. contention is grounded on the following provision of Section Fifteen of Article Four as quoted .elsewhere in this opinion; “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.”

Relator’s contention is in substance, that the message of the Governor transmitting the order of suspension to the Senate must' sound literally in the terms of the constitution else it is void and ineffectual. We do not so understand and interpret this provision of the constitution. It would place a “clamp and straight jacket'” on the use and application of words contrary to every principle of good English usage. It would, to all practical purposes restrict the range of the vocabulary of Shakespeare and Milton and Woodrow Wilson to that of Poll Parrot. We are unwilling to thus shackle a language, one of whose greatest assets is its purity and richness in synonyms and phrases which vary slightly in meaning, but add largely to expression, yet this is what is done when we say that the Governor cannot, in compliance with the terms of the constitution, recommend the removal of an officer without using the word “recommend” as a basis for his action. ¥e could, with equal propriety say that one could not be nominated, employed, hired, or fired without employing a prescribed literal formula to do so.

Then if there is magic in a word, it will be observed that the quoted provision of the constitution uses the word “recommendation” instead of the word “recommend”. If literal terms are to be followed, the Governor cannot say I “recommend” removal but he must' say I “recommendation” removal. To recommend action means to advise or attract favor to it, to make acceptable, to commend t'o favorable notice, or to commit to another’s care, confidence or acceptance with favorable representation. Any word or statement that does this is sufficient.

Now let us see what took place in the instant case. The relator was suspended by the Governor for causes stated in the constitution, he was not reinstated, the Senate was in its “next session”, the Governor transmitted his order of suspension to the Senate as here quoted, ‘ ‘ In pursuance of Section fifteen of Article four of the Constitution of the State of Florida”, the senate at once proceeded t'o consider the order of suspension as transmitted to it and in due course advised and consented to it. This action on the part of the Senate completed the removal of the relator from office.

Section fifteen of Article four deals exclusively with suspensions and removals from office, the causes therefor and the appointment of successors to those suspended. The duty imposed on the Governor and the Senate is clearly defined therein. There could have been no reason whatever for transmitting the order of suspension to the Senate “in pursuance of Section fifteen of Article Four” except to have the Senate advise and consent to it. The very purpose of transmitting, the order to the Senate is to notify it that the Governor has performed the constitutional duty laid on him and to recommend its approval thereof. If the Senate approves the suspended officer is eo instanti removed and the matter is closed but if it refuses to approve or take action on the suspension, the suspended officer at once resumes the duties of his office. The bare fact of transmitting the order of suspension to the Senate “in pursuance of section fifteen of Article four” invests it with a recommendation for removal as it could be thus clothed and transmitted for no other purpose. The Senate being advised of its constitutional duty placed that interpretation on the order of suspension and set about promptly to execute the duty imposed on it.

There is nothing in this view in conflict with advisory opinion to the Governor, 69 Fla. 508, 68 So. 450, on which relator relies to support his contention. In that ease, the primary question this court was concerned with was the manner of handling a suspension or removal of an officer, the cause of which arose during the session of the Senate. The Governor was, in effect, advised that under such circumstances he could not suspend, that his power to suspend existed only between the sessions of the Senate and that during a session of the Senate if a cause of suspension was brought to his attention, he should recommend to the Senate permanent removal of the officer. In either event no set formula is required but any statement appraising the Senate of the Governor’s action and suggesting its approval or concurrence therein is sufficient. The message of the Governor transmitting the order of removal to the Senate in this case met every constitutional requirement.

Reaching this conclusion, it becomes unnecessary to discuss other assignments. The demurrer to the return is accordingly overruled and the motion for judgment of ouster is denied.

Buford, C.J., and Whitfield, Ellis, Terrell and Davis, J.J., concur.

Brown, J., dissents.