Burklin v. Willis, A-13

• Decision Date: 24 September 1957
• Docket Number: No. A-13,A-13
• Citation: 97 So.2d 129
• Parties: Oscar S. BURKLIN, Appellant, v. Wilbur C. WILLIS, J. H. Green, Jack Osteen and William Sedden, as and constituting the Mayor, Councilmen and City Council of the City of Port Orange, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 129

97 So.2d 129

Oscar S. BURKLIN, Appellant, v. Wilbur C. WILLIS, J. H. Green, Jack Osteen and William Sedden, as and constituting the Mayor, Councilmen and City Council of the City of Port Orange, Florida, Appellees.

No. A-13.

District Court of Appeal of Florida, First District.

Sept. 24, 1957.

Rehearing Denied Oct. 21, 1957.

Robert L. Wilson, Daytona Beach, for appellant.

E. W. Gautier, New Smyrna, for appellees.

WIGGINTON, Judge.

Appellant is a duly elected and acting member of the City Council of the City of Port Orange, having been elected to this office for a two-year term ending December 31, 1957. Until June 12, 1956, he also held the offices of Vice Mayor and Municipal Judge, these offices being held under authority of Section 5 of the City's Charter ¹, which provides that at its first meeting after the election of members the Council shall select one of their number as Vice Mayor who shall also serve as judge of the Port Orange Municipal Court. This section prescribes the powers and duties of these offices, but fixes no definite terms of office.

Having been duly selected to occupy the offices of Vice Mayor and Municipal Judge, appellant continued to perform the duties incident thereto until June 12, 1956. On that date the Council conducted a regular business meeting at the conclusion of which the Mayor-Councilman, in accordance with what he conceived to be his responsibility, read to the members a number of Municipal Court cases which the Mayor felt had been improperly handled and disposed of by the appellant. Several officers of the Port Orange Police Department were called before the Council and interrogated as to their views concerning appellant's handling of the cases in question. At the conclusion of this discussion appellant was asked whether he had any statement or questions relating to the criticisms which had been placed before the Council. Appellant's only statement was to the effect that he felt his actions were justified in all the cases involved. Without further formality a motion was made, seconded and adopted by a three to two vote, whereby appellant was summarily removed from the offices of Vice Mayor and City Judge and the offices declared vacant. This action was immediately followed by the adoption of a resolution filling the 'vacant' offices by selecting one of the majority members of the Council to fill the office of Vice Mayor, and a third party to fill the office of City Judge. The entire foregoing proceedings were conducted without prior notice to appellant and without benefit of formal charges against him.

Thereafter appellant petitioned the Circuit Court of Volusia County for an alternative writ of mandamus commanding the rescission of the aforementioned resolutions and his re-instatement by the Council to the offices of Vice Mayor and City Judge, or that the Council show cause for not so doing. Upon answer by the respective Council members and a hearing thereon the court entered its final judgment dismissing the petition and taxing costs against appellant. The final judgment was based upon the court's finding that the Council acted within its authority. It is from this order of dismissal that appeal is taken.

In defense of their action in removing appellant from office, appellees argue that Section 1, Par. 9, of the City Charter ² sets forth the Council's authority for the removal of an officer or employee of the city, and further, under their interpretation of the Charter, the appellant holds his appointive offices at the pleasure of the Council and can be summarily removed by a majority vote of the Council, without prior notice or opportunity to be heard.

Under the common law an officer could be removed only for cause and after notice and an opportunity to be heard. In the absence of statutory or constitutional provisions to the contrary, the common law rule prevails in this state. ³ It is settled law that statutes designed to alter the common law must speak in clear and unequivocal terms and that the common law will not be changed by doubtful implications. ⁴ While it has been held that the power of removal is incident to the power of appointment, and that removal may be effected at the discretion of the appointing authority, this rule is applicable only wher the appointee holds office at the pleasure of such appointing authority. ⁵

Section 1, paragraph 9, of the Port Orange Charter relied upon by the appellee provides that an affirmative vote of a majority of the Council members present shall be necessary to adopt an ordinance or resolution '* * * or take other official action for and on behalf of said City * * *.' Clearly this language when measured by the foregoing rule of construction falls short of the conclusion urged by appellees. It cannot be said that such language so clearly and unequivocally abrogates the common law requirements as to negative the necessity for notice and hearing. It is pertinent here to note that Section 4 of the...