Attorney General v. Connors

• Decision Date: 04 March 1891
• Citation: 27 Fla. 329,9 So. 7
• Parties: ATTORNEY GENERAL ex rel. WILKINS v. CONNORS.
• Court: Florida Supreme Court

9 So. 7

27 Fla. 329

ATTORNEY GENERAL ex rel. WILKINS v. CONNORS.

Florida Supreme Court

March 4, 1891

Appeal from circuit court, Escambia county; JAMES F. McCLELLAN Judge.

Syllabus by the Court

SYLLABUS

1. The interposition of a demurrer to an information in quo warranto, that presents such a statement of facts as, when uncontroverted, would entitle the relator to the relief sought, is an admission of the facts alleged.

2. Chapter 3607, Laws, approved February 12, 1885, making it the duty of the sheriff of Excambia county to perform the duties of city marshal in the city of Pensacola, in his county, is not obnoxious to, or in conflict with, that clause of section 15 of article 16 of the constitution of 1885, which provides that 'no person shall hold or perform the functions of more than one office, under the government of this state, at the same time.'

3. Municipal ordinances creating the office. eo nomine, of 'chief of police,' without any provision of law authorizing the creation of such office, and assigning to it duties and functions that have been by law lodged in another official, are ultra vires, illegal, and void.

4. The city marshal of a municipality, in so far as the authority and duties of his office are concerned, occupies the same relation to the governmental affairs of the municipality as a sheriff does to his county. He is the chief executive officer of the municipality, clothed with authority to apprehend offenders against its ordinances, etc.

COUNSEL John C. Avery, for appellant.

Blount & Blount, for appellee.

OPINION

TAYLOR J.

This is an appeal from a judgment rendered in favor of the defendant in a quo warranto proceeding.

The information, which was filed by the attorney general in September, 1889, he suing 'for the people of the state,' alleges that Joseph Wilkins was elected sheriff of Escambia county on the 6th day of November, 1888, and still holds such office, and by virtue of his title thereto is entitled to the office, and to the discharge of the duties and enjoyment of the emoluments which, prior to the dissolution of the municipal corporation of Pensacola attached to the office of city marshal of that city, which duties and emoluments are vested, by the statute under which the provisional municipality of the city of Pensacola was and is organized, in the sheriff of Escambia county; that Connors, the defendant, for the space of three months, in the county of Escambia, and provisional municipality of Pensacola, unlawfully held and executed, and still unlawfully holds and executes, without any warrant or right whatever many of the powers and duties, and enjoys the emoluments which lawfully attach and belong to the said Joseph Wilkins by virtue of his election and occupation of the office of sheriff of Escambia county, conferred upon him by the provisions of the law under which the said provisional municipality of Pensacola exists.

That the act, approved February 12, 1885, entitled 'An act to amend section 9 of an act to dissolve municipal corporations under circumstances therein stated, and to provide provisional government for the same, approved January 28 1885, and to repeal the eighth section of that act,' provides that it shall be the duty of the sheriff for the county in which said city shall be situated to perform the duties of marshal for such provisional municipality, and to appoint, subject to approval and removal by the board, such number of policemen as may be authorized by the board. That notwithstanding such provision the defendant has assumed to be and exercises the powers and duties of chief of the police forces of the said provisional municipality; has assumed, in disregard of the law and the rights of relator, to exclusively superintend, direct, and control all police officers and policemen of the said provisional municipality in the discharge of duties assigned to them, and to be the chief conservator of the public peace of the municipality, and superintendent of the making of complaints of offenses against the ordinances thereof, and to perform all those duties which prior to the passage of the law under which the said municipality exists appertained to the office of city marshal of the city of Pensacola, and which now lawfully appertain to the office of sheriff of Escambia county.

The information prays process for Connors to answer the people by what warrant he claims to hold and execute 'the office and powers and duties aforesaid.'

Connors answered that in May, 1885, he was appointed by relator, then marshal of the provisional municipality of Pensacola, a policeman in and for the municipality, and that the appointment was thereafter duly approved by the board of commissioners of the municipality, and thereafter he, still being a policeman, was made by the board captain of police; and afterwards on January 10 and February 16, 1889, the board adopted a code of ordinances for said municipality, prescribing the duties of a chief of police, and this code is made a part of the answer; and then the respondent, still being a policeman of the municipality, was made chief of police, and has exercised the functions of chief of police, and none other.

That respondent has not received any emoluments appertaining to relator, whose compensation as marshal has been paid by the board under authority of law, and no part of such compensation has ever been paid to or is claimed by this respondent.

This answer was demurred to as bad in substance, in that it fails to set up any facts inconsistent with the rights of the people or said relator as set forth in the information, and the demurrer was overruled, and leave given the relator to amend.

Afterwards an amended information was filed, which is substantially the same as the other, except that it states specifically that the duties and powers alleged to have been usurped appertained to the office of city marshal at the time the relator was elected sheriff. A demurrer was interposed to it, and sustained, and final judgment rendered in favor of respondent. From this final judgment the relator appeals to this court.

By interposing a demurrer to the amended information, the respondent, Connors, thereby admitted the allegations of fact in the amended information to be true. Considered abstractly, we think that the amended information in this case presents such a statement of facts as, when uncontroverted, would entitle the relator to the relief prayed. These facts being admitted by the demurrer to be true, the judgment of the court below should have been in favor of the relator upon the demurrer to the amended information. Upon this view this court might rest its judgment; but there are other questions presented by the record, and commented upon by counsel in their arguments and briefs, that we deem it best to discuss, in order to arrive at a more complete disposition of the cause.

It is contended for the respondent that section 1 of chapter 3607 entitled 'An act to amend section 9 of an act to dissolve municipal corporations,' etc., approved February 12, 1885, which provides, among other things, that 'it shall be the duty of the sheriff for the county in which such city shall be situated to perform the duties of marshal for such provisional municipality, and to appoint, subject to the approval and removal by the board, such numbers of policemen as may be authorized by the board, etc., is obnoxious to that clause of section 15, art. 16, of the constitution of 1885, which provides that 'no person shall hold or perform the functions of more than one office under the government of this state at the same time.' And in this connection it is urged for the respondent that a city marshal is a state officer, in the sense of the constitutional provision invoked, and that to put the performance of the duties appertaining to his office upon the sheriff of a county comes within the constitutional inhibition above quoted. With this contention of the respondent's counsel we cannot agree, and it seems to us that the plain meaning of the language used in the clause of the constitution invoked clearly negatives this theory. The language of the constitution is: 'No person shall hold or perform the functions of more than one office, under the government of this state, at the same time.' The inhibition is aimed solely and entirely against offices held under, or whose duties appertain to, the government of the state. After careful and exhaustive search, we have been unable to find any authority that holds that the government of municipalities forms any part of the government of the state, as such, considered in the broad sense of the term 'state government.' The government of the state, as such, is reared upon and provided for in all of its departments by the constitution, but nowhere in our constitution are the governments of municipalities, or their officials, either created or established as any part of our state government; but their very creation, together with all provisions for 'their government,' are reserved to the legislative branch of the state government, as erected by the constitution. Section 8, art. 8, of the constitution, provides that 'the legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.' From this provision it will be seen that to the legislature is reserved the power, not only to create, but to abolish, municipal governments. It could hardly be contended that our constitution intended to clothe the legislature with the power to wipe out of existence any part of the great frame-work of state government; yet such would be the inference were we to hold that the government of...