Bryan v. Landis

CourtUnited States State Supreme Court of Florida
Writing for the CourtTERRELL, J.
Citation106 Fla. 19,142 So. 650
PartiesBRYAN v. LANDIS, Atty. Gen., ex rel. REEVE.
Decision Date18 June 1932

142 So. 650

106 Fla. 19

BRYAN
v.
LANDIS, Atty. Gen., ex rel.
REEVE.

Florida Supreme Court, Division B.

June 18, 1932


Error to Circuit Court, Dade County; H. F. Atkinson, Judge.

Quo warranto by Cary D. Landis, Atty. Gen., on the relation of Guy C. Reeve, against Hardy Bryan. Judgment for relator, and defendant brings error.

Affirmed.

See, also, 142 So. 654.

COUNSEL [142 So. 651]

[106 Fla. 19] J. W. Watson, Jr., of Miami, for plaintiff in error.

E. F. P. Brigham, of Miami, for defendant in error.

OPINION

TERRELL, J.

On July 13, 1931, Guy C. Reeve was summarily removed from the office of chief of police of Miami, Fla., and Hardy Bryan was appointed to succeed [106 Fla. 20] him. On July 27, 1931, Reeve, in the name of the state, exhibited his information in quo warranto in the circuit court of Dade county, praying that Bryan be ousted from the said office and that he (Reeve) be reinstated therein. A demurrer to the information was overruled, answer was filed, and on final hearing judgment of ouster was entered as prayed for. This writ of error was prosecuted to that judgment.

Numerous assignments were brought here, but the cause turns on the sole question of whether or not, under the terms of the city charter, the city manager of the city of Miami may summarily remove from office the chief of police without notice or opportunity to be heard in his defense.

The salient facts out of which this case arises are undisputed and are as follows: In May, 1928, the relator, Guy C. Reeve, was duly appointed chief of police of the city of Miami. He (Reeve) continued to perform the duties of that office until July, 1931, when he was peremptorily removed on a charge of insubordination and respondent, Hardy Bryan, was appointed to succeed him. It appears that the acts of insubordination charged against Reeve consisted in his refusal to be demoted by resigning from the office of chief of police and accepting appointment as chief of detectives. He was first advised of his removal under section 26 of the city charter, but a second letter was later sent him advising him of his removal under section 16. The city manager promptly advised the city commission that he had removed Reeve, and Reeve immediately made demand on the city manager for the causes of his removal and for a hearing before the city commission. Both requests being denied, Reeve again requested that he be furnished with a specification of the charges against him, and that he be given a hearing before the city commission. This request was denied, and Reeve [106 Fla. 21] as relator instituted this proceeding to determine his right to hold and enjoy the prerequisites of said office.

The matter of appointment to and removal from office in this country is governed by statutory or constitutional provision. Under the common law, an officer could be removed only for cause, after notice and hearing. In the absence of statute or constitutional provision regulating the subject-matter, the common-law rule prevails in this state. Village of Kendrick v. Nelson, 13 Idaho, 244, 89 P. 755, 12 Ann. Cas. 993, note 995. Statutes designed to change the common-law rule must speak in clear unequivocal terms, as this rule will not be changed by doubtful implications, and, if changed or modified, the change or modification extends no further than is expressly declared.

One appointed to hold office during the pleasure of the appointing power or for a fixed term, unless sooner removed, if coupled with the power of removal, or when the power of removal is granted in general terms, may be removed at any time without notice or hearing. State ex rel. Tremblay v. NcQuade, 12 Wash. 554, 41 P. 897; Sweeney v. Stevens, 46 N. J. Law, 344; State ex rel. Gallagher v. Brown, 57 Mo.App. 199. It is also held that, when the power of removal is lodged by statute in the discretion of any person or body of persons or depends on the exercise of personal judgment as to whether the cause of removal exists, the officer is not entitled to notice and hearing prior to removal. People ex. rel. Jones v. Carver, 5 Colo. App. 156, 38 P. 332. It has been held that the power of removal is incident to the power of appointment, and that removal may be made at the discretion of the appointing power, but this applies only where the appointee holds at the pleasure of the power making the appointment. Murphy v. Board of Chosen Freeholders of Hudson County, 92 N. J. Law, 244, 104 A. 304. The great weight [142 So. 652] of authority supports the rule that, when an officer is appointed for a [106 Fla. 22] specified term, or during good behavior, and provision is made generally for removal, or for grounds specifically stated, in the absence of a clear mandate of statute to the contrary, notice and opportunity must be given the officer to be heard in his own defense before his removal becomes final. Note to Kendrick v. Nelson, supra, citing many cases; McQuillan on Municipal Corporations (2d Ed.) vol. 2, 316 and 319; State ex rel. Mosconi v. Maroney, 191 Mo. 531, 90 S.W. 141; Murphy v. Board of Chosen Freeholders of Hudson County, 92 N. J. Law, 244, 104 A. 304.

A few jurisdictions approve the rule to the effect that a public officer holding for a fixed term, subject to removal for cause, may be removed without notice and hearing. Matter of Carter, 141 Cal. 316, text 319, 74 P. 997; Hertel v. Boismenue, 229 Ill. 474, 82 N.E. 298; State ex rel. Williams v. Kennelly, 75 Conn. 704, 55 A. 555. These cases seem to have been decided on the theory that the law under which the removals were accomplished did not in terms require that notice and...

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42 practice notes
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...on the right of a sheriff to the office and not a limitation on the powers of the Legislature to provide for his removal. Bryan v. Landis, 106 Fla. 19; Benson v. People, 10 Colo. App. 175; 22 R.C.L., sec. 268, p. 563; State ex rel. Henson v. Sheppard, 192 Mo. 506; Sec. 7, Art. XIV, Mo. Cons......
  • State ex rel. Nagle v. Sullivan, No. 7364.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 18, 1935
    ...power of removal may be exercised without notice or hearing. Bailen v. Board of Assessors, 241 Mass. 411, 135 N. E. 877;Bryan v. Landis, 106 Fla. 19, 142 So. 650; Smith v. Mayor and Board of Aldermen of Woonsocket (R. I.) 127 A. 562, 563. In the Smith Case the statute gave the power of remo......
  • Hoffman v. Jones, A-W
    • United States
    • United States State Supreme Court of Florida
    • July 10, 1973
    ...common law, if not abrogated by statute or constitutional provision, is in full force and effect in this state. See also Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932), Wilson v. Renfroe, 91 So.2d 857 (Fla.1957), Brooks v. City of West Miami, 246 So.2d 115 It is the statutory law of this ......
  • De Groot v. Sheffield
    • United States
    • United States State Supreme Court of Florida
    • May 29, 1957
    ...to this end is that the ultimate decision of the Board is executive in nature and beyond the reach of the court. In Bryan v. Landis, 106 Fla. 19, 142 So. 650, it was pointed out that where one holds office at the pleasure of the appointing power and the power of appointment is coupled with ......
  • Request a trial to view additional results
42 cases
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...on the right of a sheriff to the office and not a limitation on the powers of the Legislature to provide for his removal. Bryan v. Landis, 106 Fla. 19; Benson v. People, 10 Colo. App. 175; 22 R.C.L., sec. 268, p. 563; State ex rel. Henson v. Sheppard, 192 Mo. 506; Sec. 7, Art. XIV, Mo. Cons......
  • State ex rel. Nagle v. Sullivan, No. 7364.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 18, 1935
    ...power of removal may be exercised without notice or hearing. Bailen v. Board of Assessors, 241 Mass. 411, 135 N. E. 877;Bryan v. Landis, 106 Fla. 19, 142 So. 650; Smith v. Mayor and Board of Aldermen of Woonsocket (R. I.) 127 A. 562, 563. In the Smith Case the statute gave the power of remo......
  • Hoffman v. Jones, A-W
    • United States
    • United States State Supreme Court of Florida
    • July 10, 1973
    ...common law, if not abrogated by statute or constitutional provision, is in full force and effect in this state. See also Bryan v. Landis, 106 Fla. 19, 142 So. 650 (1932), Wilson v. Renfroe, 91 So.2d 857 (Fla.1957), Brooks v. City of West Miami, 246 So.2d 115 It is the statutory law of this ......
  • De Groot v. Sheffield
    • United States
    • United States State Supreme Court of Florida
    • May 29, 1957
    ...to this end is that the ultimate decision of the Board is executive in nature and beyond the reach of the court. In Bryan v. Landis, 106 Fla. 19, 142 So. 650, it was pointed out that where one holds office at the pleasure of the appointing power and the power of appointment is coupled with ......
  • Request a trial to view additional results

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