Per Curiam.
—It appears that under the charter statute of the City of Miami, proceedings were instituted for the recall and removal from office of three of the five City Commissioners of the City. An injunction was sought by one of the Commissioners whose recall was petitioned for, and several of the matters now presented were adjudicated in that case. See Dubose v. Kelly, filed here May 6, 1938. Some matters not adjudicated in that case are presented in this suit brought by another of the three Commissioners whose recall is sought.
In the Dubose case it was again held that a public officer has a property right in his office and cannot be deprived of it without due process of law. It was also held that any person who is elected or appointed to a public office accepts it with the condition annexed that his tenure of office may be terminated as may be duly provided by law; and that the removal from office by a recall election must rest upon a substantial compliance with the statutory provisions authorizing such recall. Dubose v. Kelly, 132 Fla. 548, 181 So. 11.
The organic requirements of due process of law are controlling when life, liberty or property rights are involved in
any official action,
whether such action be the exercise of “the powers of government” by those “properly belonging”
to the governmental departments respectively as divided and limited by the Constitution, or whether the action is a duly authorized administrative or ministerial function or duty.
While the “powers of government,” that are divided and limited by the Constitution cannot legally be delegated or exercised except as authorized by the Constitution, yet valid and appropriate statutes may, within organic limitations, confer upon officers or commissions or boards, administrative or ministerial authority and duties, which may require the exercise of administrative discretion and judgment. But in all cases when the rights of life, liberty or property are materially affected by the exercise of official administrative or ministerial discretion and judgment, due process of law must be afforded; and'the proceedings
must
accord with valid statutory requirements; for such proceedings have a legal basis only in a compliance with valid statutory provisions- conferring the authority. The official act is authorized
only
when the material provisions of the statute authorizing or regulating the action are obeyed.
The charter statute enacts that “No member of the City Commission shall be recalled or removed from office by the electors of this City' as provided in Section 12 of this Charter, unless twenty-five (25) qualified electors of the City shall make and file with the City Clerk an affidavit containing the name or names of the Commissioner or Commissioners; whose removal is sought, and a statement of the grounds for removal.”
It is in effect alleged in the bill of complaint that the recall “affidavit purports to have been made by twenty-eight 'qualified’ electors of the said City; that “said purported affidavit was and is null and void as a jurisdictional prerequisite, predicate or basis of authority for the issuance or delivery” of the recall petition blanks. The reasons
alleged for the stated conclusions are that, because of stated detailed facts, the purported affidavit was made by less than twenty-five “qualified” electors of the City in that three named makers of the affidavit, including F. N. Thomas, were not “qualified” electors of the City; and in that five other named purported makers of the affidavit, including F. N. Thomas, “did not swear or make oath to the said purported affidavit, or to the truth thereof, or to the truth of any or either of the matters therein set out, before or in the presence of the Notary Public whose purported jurat is thereto attached, or before or in the presence of any other officer authorized by law to administer an oath.”
The copy of the affidavit in the transcript shows 28 names of persons including the five referred to in the bill of complaint as not having sworn to the affidavit. The street address of each person appears opposite his or her name. It is not alleged that the five persons were not qualified electors of the City, or that they did not sign the affidavit, or that the plaintiff was present when the five persons signed the affidavit and that no oath was administered or taken. The allegation that the five persons did not make oath to the affidavit was, in the bill of complaint, sworn to by the plaintiff; but such allegation is not supported by affidavits or testimony by the five persons or any of them that they did not swear to the affidavit or that they did not appear before the officer to make the oath or that they did not sign the affidavit.
The plaintiff moved for a temporary injunction on the biH of complaint, when filed, notice being given. The defendant merely resisted the motion. There was no answer or motion to dismiss the bill of complaint for want of equity. The affidavit being signed by the five persons who it is alleged did not swear to it, and the officer having affixed his jurat and seal thereto, and there being no allega^
tion that the five persons did not sign the affidavit, and no affidavit or testimony to support the allegation that the five persons did not make oath to the affidavit, the legal effect of the official jurat under seal is not overcome by the allegations. On this record the jurat of the Notary Public is not legally shown to be false.
It is alleged that one person whose name is among tbA 28 signatures to the recall affidavit was not a qualified elector of the City. If this be true, 27 names remain as makers of the recall affidavit. Only 25 are needed. Two other persons, F. N. Thomas and Mrs. Martha Bell, appear to have been qualified electors of the City, even though they had changed their residence from one district or precinct of the City to another district or precinct within the City.
There are allegations of fraud on the part of the Notary Public in affixing his jurat to the affidavit, but such allegations have relation to the alleged failure of the five persons to make oath to the affidavit signed by them. As this cause is to be remanded for further proceedings, the entire matter may be further developed by appropriate pleading and evidence.
There are allegations of deception in the use of the recall petitions to secure signatures thereto, that are legally sufficient to require responsive pleading and evidence on that subject.
The statute requires a copy of the recall petition to “be
entered in a record book
to be kept in the office of the Clerk.” To be entered in a book means to be recorded in the book. It appears that this has not been done and, upon a remand of the cause, the court below should not proceed further until the statute is obeyed. The statutory provision is designed to provide a permanent record of the institution of the recall proceedings, all the other proceedings being merely filed in the office of the City Clerk.
Another purpose of the statute is to afford a sufficient and reasonable constructive notice by a record book of the Clerk’s office to the officials sought to be recalled.
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Per Curiam.
—It appears that under the charter statute of the City of Miami, proceedings were instituted for the recall and removal from office of three of the five City Commissioners of the City. An injunction was sought by one of the Commissioners whose recall was petitioned for, and several of the matters now presented were adjudicated in that case. See Dubose v. Kelly, filed here May 6, 1938. Some matters not adjudicated in that case are presented in this suit brought by another of the three Commissioners whose recall is sought.
In the Dubose case it was again held that a public officer has a property right in his office and cannot be deprived of it without due process of law. It was also held that any person who is elected or appointed to a public office accepts it with the condition annexed that his tenure of office may be terminated as may be duly provided by law; and that the removal from office by a recall election must rest upon a substantial compliance with the statutory provisions authorizing such recall. Dubose v. Kelly, 132 Fla. 548, 181 So. 11.
The organic requirements of due process of law are controlling when life, liberty or property rights are involved in
any official action,
whether such action be the exercise of “the powers of government” by those “properly belonging”
to the governmental departments respectively as divided and limited by the Constitution, or whether the action is a duly authorized administrative or ministerial function or duty.
While the “powers of government,” that are divided and limited by the Constitution cannot legally be delegated or exercised except as authorized by the Constitution, yet valid and appropriate statutes may, within organic limitations, confer upon officers or commissions or boards, administrative or ministerial authority and duties, which may require the exercise of administrative discretion and judgment. But in all cases when the rights of life, liberty or property are materially affected by the exercise of official administrative or ministerial discretion and judgment, due process of law must be afforded; and'the proceedings
must
accord with valid statutory requirements; for such proceedings have a legal basis only in a compliance with valid statutory provisions- conferring the authority. The official act is authorized
only
when the material provisions of the statute authorizing or regulating the action are obeyed.
The charter statute enacts that “No member of the City Commission shall be recalled or removed from office by the electors of this City' as provided in Section 12 of this Charter, unless twenty-five (25) qualified electors of the City shall make and file with the City Clerk an affidavit containing the name or names of the Commissioner or Commissioners; whose removal is sought, and a statement of the grounds for removal.”
It is in effect alleged in the bill of complaint that the recall “affidavit purports to have been made by twenty-eight 'qualified’ electors of the said City; that “said purported affidavit was and is null and void as a jurisdictional prerequisite, predicate or basis of authority for the issuance or delivery” of the recall petition blanks. The reasons
alleged for the stated conclusions are that, because of stated detailed facts, the purported affidavit was made by less than twenty-five “qualified” electors of the City in that three named makers of the affidavit, including F. N. Thomas, were not “qualified” electors of the City; and in that five other named purported makers of the affidavit, including F. N. Thomas, “did not swear or make oath to the said purported affidavit, or to the truth thereof, or to the truth of any or either of the matters therein set out, before or in the presence of the Notary Public whose purported jurat is thereto attached, or before or in the presence of any other officer authorized by law to administer an oath.”
The copy of the affidavit in the transcript shows 28 names of persons including the five referred to in the bill of complaint as not having sworn to the affidavit. The street address of each person appears opposite his or her name. It is not alleged that the five persons were not qualified electors of the City, or that they did not sign the affidavit, or that the plaintiff was present when the five persons signed the affidavit and that no oath was administered or taken. The allegation that the five persons did not make oath to the affidavit was, in the bill of complaint, sworn to by the plaintiff; but such allegation is not supported by affidavits or testimony by the five persons or any of them that they did not swear to the affidavit or that they did not appear before the officer to make the oath or that they did not sign the affidavit.
The plaintiff moved for a temporary injunction on the biH of complaint, when filed, notice being given. The defendant merely resisted the motion. There was no answer or motion to dismiss the bill of complaint for want of equity. The affidavit being signed by the five persons who it is alleged did not swear to it, and the officer having affixed his jurat and seal thereto, and there being no allega^
tion that the five persons did not sign the affidavit, and no affidavit or testimony to support the allegation that the five persons did not make oath to the affidavit, the legal effect of the official jurat under seal is not overcome by the allegations. On this record the jurat of the Notary Public is not legally shown to be false.
It is alleged that one person whose name is among tbA 28 signatures to the recall affidavit was not a qualified elector of the City. If this be true, 27 names remain as makers of the recall affidavit. Only 25 are needed. Two other persons, F. N. Thomas and Mrs. Martha Bell, appear to have been qualified electors of the City, even though they had changed their residence from one district or precinct of the City to another district or precinct within the City.
There are allegations of fraud on the part of the Notary Public in affixing his jurat to the affidavit, but such allegations have relation to the alleged failure of the five persons to make oath to the affidavit signed by them. As this cause is to be remanded for further proceedings, the entire matter may be further developed by appropriate pleading and evidence.
There are allegations of deception in the use of the recall petitions to secure signatures thereto, that are legally sufficient to require responsive pleading and evidence on that subject.
The statute requires a copy of the recall petition to “be
entered in a record book
to be kept in the office of the Clerk.” To be entered in a book means to be recorded in the book. It appears that this has not been done and, upon a remand of the cause, the court below should not proceed further until the statute is obeyed. The statutory provision is designed to provide a permanent record of the institution of the recall proceedings, all the other proceedings being merely filed in the office of the City Clerk.
Another purpose of the statute is to afford a sufficient and reasonable constructive notice by a record book of the Clerk’s office to the officials sought to be recalled. The plain! iff has waived his right to complain of the failure to malee a record entry of the recall petition as issued for the purpose of giving him constructive notice of the institution of the recall proceedings, as he is challenging the
subsequent recall proceedings.
But he has a right to require the record entry to be made as a permanent official record of the institution of the recall proceedings against him.
The statute provides that the recall petition “shall be signed by registered voters of the City to the number of at least fifteen per cent. (15%) of the total number of registered voters of the City as shown by the City registration books.”
Nothing in the terms or intendments of the statute forbid the use of card indices or other appropriate means or instrumentalities for correctly ascertaining the “registered voters of the City”; but the ultimate factor to be used in determining whether recall petitions are signed by at least fifteen per cent. (15%) of the total number of the registered voters of the City is “the
total number
of
registered
voters of the City as shown by the City registration books.” Of course, the City registration books must be so kept as to show only the qualified registered voters of the City at the time such registration books are being used as" the statutory means to show “the total number of registered voters of the City.”
In further proceedings it may be shown whether, in this respect, the statute has been obeyed as it must be.
It does not appear that a more extended discussion of' the allegations of the bill of complaint is essential to the further progress of this cause.
The order appealed from is reversed and the cause is remanded for appropriate proceedings.
Whitfield, Brown, Buford and Chapman, J. J., concur.
Buford, J., concurs specially.