Dade County v. Kelly
Decision Date | 20 December 1957 |
Citation | 99 So.2d 856 |
Parties | DADE COUNTY, Florida, Faris N. Cowart, Charles F. Hall, Edwin L. Mason, John B. McLeod and Ralph A. Fossey, as the Board of County Commissioners of Dade County, Florida, O. W. Campbell, as County Manager of Dade County, Florida, and Daniel P. Sullivan, as Public Safety Director of Dade County, Florida, Petitioners, v. Thomas J. KELLY, as Sheriff of Dade County, Florida, Respondent. |
Court | Florida Supreme Court |
Darrey A. Davis and Marion E. Sibley, Miami Beach, for appellants.
Milton M. Ferrell and J. M. Flowers, Miami, for appellee.
This is a direct appeal taken from the circuit court under Article V, Section 4, of the Florida Constitution, F.S.A., and Rule 2.1(5a) of the Florida Appellate Rules. Appellants are Dade County and its Board of County Commissioners, its Conty Manager and its Public Safety Director. Appellee is the Sheriff of Dade County.
The 'Dade County Home Rule Amendment' to the Florida Constitution, which we considered in Gray v. Golden, Fla., 89 So.2d 785, was adopted November 6, 1956. This amendment to Article VIII, Section 11, provides in part as follows:
* * *
* * *
'(vi) May abolish and may provide a method for abolishing from time to time all offices provided for by Article VIII, Section 6, of the Constitution* or by the Legislature * * * and may provide for the consolidation and transfer of the functions of such offices * * * provided further that if said home rule charter shall abolish any county office or offices as authorized herein, that said charter shall contain adequate provision for the carrying on of all functions of said office or offices as are now or may hereafter be prescribed by general law.'
Pursuant to the constitutional amendment, a 'Home Rule Charter' was adopted. This charter provided in part as follows:
'Board of County Commissioners
'Section 1.01. Powers.
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* * *
Acting under the charter, the Board of County Commissioners of Dade County caused to be enacted Ordinance No. 57-3, creating and establishing the Public Safety Department of Dade County. This ordinance transferred to the Public Safety Department the duties, functions and powers of the County Police and County Fire Departments, and all functions of the Sheriff of Dade County except the service of civil process. At the time this ordinance was enacted the appellee, Kelly, was serving as Sheriff of Dade County pursuant to Article VIII, Section 6, of the Florida Constitution, performing the duties of such office prescribed by law. The relevant section of Ordinance No. 57-3 reads as follows:
On September 3, 1957, appellee, as Sheriff, filed his complaint seeking a declaratory decree determining that Ordinance No. 57-3 and the controlling provisions of the Home Rule Charter, insofar as they applied to his office, were void, and praying for injunctive relief against the transfer of the functions of his office to the Public Safety Department. The complaint alleged that the attempted transfer of the Sheriff's functions to the Public Safety Department was void because:
'(a) The power to perform said acts was not granted to the electors of Dade County, Florida, by said constitutional amendment.
'(b) Assuming but not admitting, that the power to perform said acts was granted said electors of Dade County, Florida, then the said acts constitute the exercise of a constitutional power granted said electors which cannot lawfully be delegated by them to the Defendant, said Board.
'(c) The constitutional power to perform said acts was not lawfully delegated by said electors to said Defendant, Board, assuming but not admitting that said electors had said constitutional power and that said constitutional power could be lawfully delegated.'
After a motion to dismiss and answer were filed and the cause was set for hearing on the injunction, it was agreed by counsel for the respective parties that no issues of fact were involved, but that hearing should be had upon the complaint, motion to dismiss and answer. After hearing, the chancellor entered a temporary injunction prohibiting the Public Safety Director from performing or attempting to perform any of the functions of the Sheriff of Dade County and restraining each of the defendants from interfering with the Sheriff in the performance of his duties as prescribed by law prior to the adoption of the Home Rule Charter.
Appellants contend that the ruling of the chancellor was in error and that the transfer of the Sheriff's powers, duties and functions except for service of process was accomplished in accordance with law.
We first focus our attention upon the quoted portions of the Constitution and the quoted parts of the charter enacted pursunat thereto. In Gray v. Golden, supra, 89 So.2d 785, 790, we said, in an opinion by Mr. Chief Justice Terrell:
(Emphasis supplied.)
A study of the quoted constitutional provision discloses that it was made permissible, by charter, to abolish and provide a method for abolishing from time to time certain constitutional county offices and to provide for the consolidation and transfer of the functions of such offices. In the event of abolition of an office, the charter was to contain adequate provision for carrying on its functions. The exact language of the constitutional amendment is conspicuous for its use of the conjunctive rather than the disjunctive and to us, according to its plain terms, it contemplates that before the functions of an office are transferred, or are consolidated with the functions of some other office, the old office must be abolished. As a matter of common usage, 'the functions' means all of the functions. We cannot read into...
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Abusaid v. Hillsborough County Bd., No. 03-16243.
...hire the appellee on a daily basis to serve at the will of the manager and to fire him without cause or notice"). But see Dade County v. Kelly, 99 So.2d 856 (Fla.1958) (holding that county could transfer all duties of sheriff to another office and abolish office of sheriff, but could not do......
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...impermissible conflict with state law. Dade County v. Mercury Radio Serv., Inc., 134 So.2d 791 (Fla.1961). Finally, in Dade County v. Kelly, 99 So.2d 856 (Fla.1957), the Court held that Dade could not make piecemeal transfers of the sheriff's duties, in contravention of the governor's const......
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State ex rel. Dade County v. Dickinson
...v. Cowart, 108 So.2d 468 (Fla.1958); Dade County v. Young Democratic Club of Dade County, 104 So.2d 636 (Fla.1958); and Dade County v. Kelly, 99 So.2d 856 (Fla.1957). These cases, when read in conjunction with the constitutional home-rule provisions and the Charter adopted thereunder, offer......
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Madison v. Gerstein, 29390.
...for abolishing from time to time all offices provided for by Article VIII, Section 6, of the Constitution * * *." 10 See Dade County v. Kelly, 99 So.2d 856 (Fla.1957). 11 Kelly v. McNayr, 175 So.2d 568 (Fla. App.1965) and McNayr v. Kelly, 184 So. 2d 428 12 Dade County v. Kelly, 153 So.2d 82......