Bryan v. Landis

• Decision Date: 18 June 1932
• Court: Florida Supreme Court
• Parties: BRYAN v. LANDIS, Atty. Gen., ex rel. REEVE.

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

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 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 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 of authority supports the rule that, when an officer is appointed for a 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 hearing be given. They are contrary to the decided current of authority treating the question. We have examined Eckloff v. District of Columbia, 135 U.S. 240, 10 S.Ct. 752, 34 L.Ed. 120, relied on by plaintiff in error, but it was also disposed of on the theory that the act involved vested plenary power in the commissioners of the District of Columbia to dismiss members of the police force without notice or hearing.

From this review of the applicable law, it follows that, in the absence of constitutional limitation, the Legislature has ample power to prescribe the conditions under which municipal or other officers may be appointed or removed. The power to remove, like the power to appoint, may be absolute or conditioned, but, in either event, the rule prescribed must be followed with strictness. Mechan on Public Officers, pars. 448, 450, and 452.

The question presented here is resolved by an interpretation of subsection (b) of section 16, and section 26 of the city charter of Miami as follows:

Subsection (b), section 16:

'To appoint and remove, except as herein provided, all directors of the departments and all subordinate officers and employees in the departments in both the classified and unclassified service; all appointments to be upon merit and fitness alone, and in the classified service, all appointments and removals to be subject to the civil service provisions of this charter.'

Section 26:

'The City Manager shall have the exclusive right to suspend the Chief of Police and Fire Chief for incompetence, neglect of duty, immorality, drunkenness, failure to obey orders given by proper authority, or for any other just and reasonable cause. If either of such chiefs be so suspended, the City Manager shall forthwith certify the fact, together with the cause of suspension, to the commission who within five (5) days from the date of receipt of such notice, shall proceed to hear such charge and render judgment thereon, which judgment shall be final.'

As an aid of the interpretation of these provisions, it is pertinent to state that, under the city charter of Miami, the city manager is the administrative head of the city government (section 15) and section 16 defines his general powers and duties. Among his general powers, as defined in subsection (b) of section 16 as quoted, is that of appointing and removing, 'except as herein provided,' all subordinate officers and employees in the departments in both the classified and the unclassified service. The administrative departments of the city government were created by section 18 of the city charter, and are as follows: (1) department of law; (2) department of public service; (3) department of public welfare; (4) department of public safety; and (5) department of finance. Sections 60, 61, and 62 provide for the civil service to be composed of the classified and the unclassified divisions. The directors of these five departments, including the subordinate officers and employees in both the classified and the unclassified service, are appointed and removed by the city manager 'except as herein provided,' they being the identical officers and employees appointed by authority of subsection (b), section 16.

Other provisions of the city charter provide for appointments and removals in designated instances which affect every administrative department of the city government, and, being so, they must be construed in connection with subsection (b) of section 16. In the case at bar, we are concerned only with removals, and, as we shall now show, the phrase 'except as herein provided,' employed in subsection (b) of section 16, qualifies or limits every provision of the city charter providing for removals in...