Blackburn v. Brorein

• Citation: 70 So.2d 293
• Parties: BLACKBURN v. BROREIN et al.
• Decision Date: 22 January 1954
• Court: Florida Supreme Court

Page 293

70 So.2d 293

BLACKBURN v. BROREIN et al.

Supreme Court of Florida, En Banc.

Jan. 22, 1954.

Rehearing Denied Fdb. 26, 1954.

Graham, Dixon & Flynn, Tampa, for appellant.

William C. McLean, Tampa, for Carl D. Brorein et al., appellees.

Frank Ragano, Tampa, for appellee-intervenors.

MATHEWS, Justice.

This is an appeal from a final decree made and entered by the Circuit Court of Hillsborough County.

The purpose of the suit was to obtain a judicial determination as to the status of deputy sheriffs and particularly whether or not they were employees or officers, and if employees, whether they were employees of the sheriff, or employees of the county. The suit was originally brought by Ed Blackburn, Jr., individually and as sheriff, against the members of the Civil Service Board and later certain deputy sheriffs intervened.

In and by the final decree, the Chancellor found and determined:

'1. That the Hillsborough County Civil Service law, Chapter 27601, Laws of Florida, Special Acts of 1951, which went into effect on October 1, 1951, as a whole, is constitutional and valid.

'2. The plaintiff, Sheriff of Hillsborough County, Florida, is an 'Appointing Authority' within the meaning of Chapter 27601, Laws of Florida, Special Acts of 1951, being the Hillsborough County Civil Service Law, and the deputy sheriffs appointed, commissioned and paid by said Sheriff are employees coming within the classified service provisions of said Act.

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'4. The intervenors remain employees of the plaintiff, as Sheriff of Hillsborough County, Florida, and therefore, they are hereby reinstated and entitled to their respective salaries from January 6, 1953.'

The first question to be determined is whether or not the deputy sheriffs are officers or employees. The Chancellor found that they were employees. The appellant urges that the Chancellor was in error and that deputy sheriffs are not employees but officers. The appellees urge with equal force and vigor that deputy sheriffs are employees because they are not appointed by the Governor or elected by the people, as contemplated by Section 27 of Article III of the State Constitution, F.S.A., which section reads as follows:

'The Legislature shall provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution, and fix by law their duties and compensation.'

The Civil Service Act for Hillsborough County is Chapter 27601, Special Acts of 1951, and is 'An Act Creating a Civil Service Board for the County of Hillsborough * * * Providing for the Study of Salaries and for the Recommendations by the Board of Salary Ranges; Providing for the Manner of Employment, Promotion, Reduction, Suspension, Layoff and Discharge of Employees: * * *.' The act provides for a division of employees into unclassified and classified service, for the filling of a position in classified service by the appointing authority from a list of names of persons to be furnished by the Civil Service Board, for the filling of vacancies and that '* * * no person holding an office or place in the classified service shall be removed or discharged, except for cause upon written charges and after an opportunity to be heard in his own defense. * * *' Under the law and the rules adopted by the Board, a person in one classification could not be required to perform a service in another classification. Rule 11 proposed by the Civil Service Board of Hillsborough County is as follows:

'A person may, with the approval of the Board, be transferred from one position to a similar position in the same class and grade where the examinations, minimum requirements and compensation for both are equivalent. If a reduction in personnel becomes necessary, a person so transferred will have his seniority based on total service with the County.'

A person classified as a criminal deputy could not be called on to serve a summons in a civil suit or a chief deputy could not be required to go out of the office and serve a search warrant.

At the common law in England there was a sheriff and an under-sheriff. The under-sheriff possessed all of the powers and duties of the sheriff. 47 Am.Jur., Article on Deputies, § 154, page 929 et seq. From the very beginning of government in this State the law has provided for a sheriff and has authorized the appointment of deputy sheriffs. Section 30.07, F.S., F.S.A., is as follows:

'Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible.'

Section 4 of Article XVI of the State Constitution, among other things, provides that the 'Sheriff shall either reside or have a sworn deputy within two miles of the county seat.' By this section the Constitution definitely recognized the existence of deputy sheriffs.

Prior to the Constitution of 1885 the deputy sheriffs had been appointed by the sheriffs. The statutes specifically recognized the necessity for deputy sheriffs and in plain language provided for the sheriffs to appoint deputy sheriffs. The Constitution, by making special mention of a deputy sheriff in the Constitution, and by adopting all laws then in force not inconsistent with the new Constitution, provided for the appointment of such deputy sheriffs by the sheriff of each county in and by Section 30.07, F.S., F.S.A., formerly Section 4 of Chapter 1659, Laws of 1868, notwithstanding the provisions of Section 27 of Article III of the State Constitution.

In the consideration of this question it is advisable to consider the origin, history, nature, status, powers and duties of sheriffs and deputy sheriffs. In 47 Am.Jur. 821, 822, Sheriffs, Etc., § 2., the author states:

'The office of sheriff is an ancient one, dating back at least to the time of Alfred, King of England, and the holder thereof has always been the chief executive officer and conservator of the peace in his shire or county. He is a county officer representing the executive or administrative power of the state within his county. In this country, the office is generally an elective one, and anciently in England sheriffs were elected by freeholders of the county, although gradually it became the custom for the Crown to appoint the sheriff.'

In 47 Am.Jur. 929, 930, 931, Deputies, § 154, the author states:

'The office of under or deputy sheriff if a common-law office; and this is the rule unless a change is effected by the Constitution or statute law of the state. In the most ancient times of the English common law, the sheriff had his under sheriff; and such deputy, when appointed, was vested with authority to perform every ministerial act that the principal sheriff could perform. Under modern jurisprudence the status of the deputy is in many respects the same. He acts for the sheriff in his name and stead. He is the sheriff's agent and as such agent he may do any ministerial act that his principal may do. He holds an appointment as distinguished from an employment. In the absence of any statutory restriction, the sheriff has full power to appoint his deputy, and he may clothe him with his ministerial duties as effectually as he could constitute him his agent to attend to private business for him as an individual. For instance, the service of a search warrant, which is directed to a sheriff, by his deputy is the act of the sheriff whether he is personally present or not.

'* * * Where so clothed with power, a deputy sheriff is a public officer, although he may not be a state or municipal officer within the meaning of constitutional provisions. * * *'

A deputy is a person appointed to act for another and he may do anything that his principal may do. A deputy is a substitute for another and is empowered to act for him in his name and behalf in all matters in which the principal may act. The principal is responsible for the acts of his deputy and the authority of the deputy ceases upon the latter's death or disqualification. Statutory authority is not necessary to enable a public official to appoint sufficient deputies to perform the duties of his office. See 43 Am.Jur. 218, 219, Public Officers, § 460.

The case of Shad v. De Witt, 158 Fla. 27, 27 So.2d 517, 520, involved the Civil Service Law applicable only to Duval County, but it is very similar to the Hillsborough County Act. That case is cited by the appellees as authority that all similar civil service acts are constitutional and is controlling in this case. That case was a taxpayer's suit and the Court pointed out that the appellant was not an officer or employee or a candidate or an applicant for any position with the County of Duval. In upholding the Duval County Civil Service Act against the general attack by a taxpayer, this Court said:

'* * * When the general plan is borne in mind and persons holding the positions defined as 'unclassified' are eliminated it is plain that persons serving the county in the remaining places were not intended by the legislature to include anyone exercising a part of the sovereign authority of the state, hence occupying a post of such dignity as to fall within the meaning of this section of the Constitution. We are confirmed in this view by the phraseology of the title of the act, which specifically describes it as one providing civil service for employees. From this and from the provision for the exclusion of certain officers and others performing technical service and the like, making the act operative only on the remainder, we are convinced that there was no intention on the part of the legislature for the law to affect officers in the true sense of that word. In any event, should it eventually develop that one exercising the prerogatives or performing the duties of the character rendering him an officer, as that word has been defined by this court in construing the Constitution,...