Glendinning v. Curry

Citation14 So.2d 794,153 Fla. 398
PartiesGLENDINNING v. CURRY, City Manager, et al.
Decision Date16 July 1943
CourtFlorida Supreme Court

Rehearing Denied Sept. 7, 1943.

Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

E. F. P. Brigham of Miami, for appellant.

J. W. Watson, Jr. and Franklin Parson, both of Miami, for appellee.

BROWN, Justice.

This is an appeal from an order of the Circuit Court of Dade County granting a motion to quash an alternative writ of mandamus. This order raises a question concerning the authority of the City Manager of Miami to order a merger of the position of superintendent of nurses of the Jackson Memorial Hospital, a City Hospital, with another 'office', thus depriving Miss Glendinning, the appellant here, of her position as superintendent of nurses.

The petiton for the alternative writ, to be directed to the City Manager and to the Superintendent of the Hospital, alleged that the petitioner was a graduate and registered nurse and well qualified for the position which she had been holding for some twelve years. She was appointed in 1930 to the position of instructor of nurses in said city hospital and in 1932 she was appointed superintendent or supervisor of nurses, the terms being used interchangeably, and that this was an 'office' which pertained to the operation, running, management and control of the institution, and that for ten years she had performed the duties and functions of said 'office' at a salary of $175 per month; that she was furnished an office in the hospital building with two assistants and one secretary to aid her in her work; that among her duties were those pertaining to the efficient and correct performance of their nursing duties by the undergraduate and graduate nurses and that at the time of her discharge on August 15, 1942, there were some two hundred and fifty persons under the direct supervision of pertitioner; that she had to pass upon the credentials and recommend the admission or rejection of applicants for training and also had to give instruction in nurses' ethics regularly to the under-graduate nurses, also had to perform many other duties which were designated in the petition; that she enjoyed the confidence of the superintendent and assistant superintendent of the hospital.

The petition also alleges that the office of assistant superintendent of the hospital was 'a full time job', and required all of the time of the person holding that position and that it was physically impossible for any one person to efficiently perform the duties of superintendent of nurses and assistant superintendent of the hospital, which duties are different and distinct, and that as late as July 27, 1942, the budget recommendations prepared by the respondent A. B. Curry to the City Commission recommended and advised the Commission to keep and maintain the office of assistant superintendent of the hospital separate and distinct from that of supervisor of nurses and that money be appropriated for each of said positions for the fiscal year 1942-1943, and that the City Commission in its appropriation ordinance for that fiscal year complied with said recommendation of the City Manager, but that notwithstanding all this, said City Manager had on July 31, 1942, without any communication with or to petitioner or the superintendent of the hospital, or its board of trustees, directed the respondent superintendent to combine the duties and functions of the two 'offices' and to discharge petitioner, which said superintendent regretfully did, and notified petitioner that her services would be terminated on August 15, 1942. The letter of the City Manager to the Superintendent of the Hospital, dated July 31, 1942, reads as follows:

'For some time this office has been studying the organization structure of the Jackson Memorial Hospital and has come to the conclusion that it will be necessary, from time to time, to make adjustments which will tend to crystallize responsibilities and knit the working forces into a more closely coordinated organization. 'In line with this policy, you will please merge the duties and office of Superintendent of Nurses with the office and duties of Assistant Superintendent to the end that the nurses training and service become the direct responsibility of the Assistant Superintendent under your supervision.

'It is my wish that this be put into effect as of August 1, 1942, and you are requested and instructed to take such steps as may be necessary to make this effective on that date.'

The petitioner further alleged that she frequently made efforts to see the City Manager and find out his reason for his action but an opportunity for an interview with him was never afforded.

The petition contained certain allegations with reference to the powers and duties of the board of trustees of the hospital and of the City Commission and that the arbitrary action of the City Manager invaded the authority of both and that in combining said two offices he invaded the province of the City Commission without any delegation of authority so to do.

The petition also alleged that the office and position which petitioner had held was within the classified service of the civil service of the City and thereby protected against arbitrary removal without being furnished with a written statement of the reasons therefor and allowed a reasonable time for answering such reasons in writing; and furthermore, that under the common law of the State of Florida a municipal officer cannot be removed in the absence of statute, without notice and an opportunity to be heard. And that if petitioner is not within the classified service of the City her removal was illegal because the board of trustees had sole authority to take administrative action against petitioner and since they have not done so, the action of the City Manager was void and of no effect. The petition prayed that the respondents be commanded to reinstate petitioner in her former 'position as superintendent of nurses and pay her salary accruing since August 15, 1942.'

An alternative writ of mandamus was issued by the court which did not embrace within the order a copy of the allegations of the petition, as is customarily done, but it did contain this provision: 'Now therefore it is considered, ordered and adjudged that a copy of the petition for alternative writ of mandamus, attached hereto as Exhibit A and by reference made a part thereof, shall be taken and considered as a part of this writ, and shall be served in accordance with the law, upon the respondents at the same time as this writ is served.'

We think this procedure amounts to a substantial compliance with the usual rule. It is true that we have held that the petition for an alternative writ is no part of the proceedings and becomes functus officio when the alternative writ is issued thereon, and that the alternative writ when issued becomes in all respects the relator's declaration and is subject to the same rules of pleading as are applicable to declarations in ordinary legal proceedings. But we have also held that the alternative writ is not required to strictly conform to the petition, as is the peremptory writ to the alternative writ, for on information disclosed by the petition, the court may fashion the alternative writ to suit the case presented by the petition. City of Bradenton v. State, 118 Fla. 838, 160 So. 506; Meyers v. State, 81 Fla. 32, 87 So. 80. However, as above stated, we think the course pursued by the circuit court, as above outlined, was a substantial compliance with the usual practice.

The court later permitted an amendment to the petition and alternative writ, which amendment added two paragraphs. The first of the paragraphs (numbered X) alleged that at the time of relator's discharge section 7 of the by- laws and regulations of the board of trustees of said hospital provided that: 'The Board reserves the right to remove any officer or member of the general staff * * * whenever in its sole judgment the good of the hospital or the patients therein may demand it,' and that this was the only regulation of said Board concerning the removal of officers or members of the general staff of the hospital, and that petitioner was a member of said staff and subject to removal by said Board, but not by the City Manager.

The second additional paragraph (numbered XI) alleged that the respondent Curry as City Manager did not remove and discharge petitioner in good faith, and did not order the respondent Clay, the Superintendent of the hospital, to merge petitioner's office with that of the Assistant Superintendent of the hospital, in good faith; that the reasons stated in his letter to the Superintendent were false and untrue; that he was ignorant of the duties and functions of petitioner's office and that he merged the two offices to circumvent the law which required the giving to petitioner notice, cause of discharge and a hearing, in order that he might illegally take the money appropriated by the City Commission for the payment of petitioner's salary and use the same for a new employee of the hospital who was a friend of respondent Curry.

In the order of the Circuit Judge granting the motion to quash the alternative writ of mandamus it is said:

'It is fairly clear that plaintiff's position is that since she was and has been regularly employed by the City of Miami for a number of years, then by that fact and the provisions of Section 62 of the City Charter (Ch. 10847, Sp.Acts of 1925) that she has thereby acquired the status of a civil service employee; that if a civil service employee then Section 65 of the Charter applies and has not been complied with; that if not a civil service employee then she can not be discharged except through action by the Board...

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11 cases
  • Devillier v. City of Opelousas, 3360
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 22, 1971
    ...62 C.J.S. Municipal Corporations § 599, page 1234; 37 Am.Jur., Municipal Corporations, § 225, Page 856; Glendinning v. Curry, 153 Fla. 398, 14 So.2d 794 (1943); Jefferson County v. Case, 244 Ala. 56, 12 So.2d 343 (1943); State v. Dark, 195 La. 139, 196 So. 47 (1940). The record indicates th......
  • State ex rel. Fussell v. McLendon
    • United States
    • Florida District Court of Appeals
    • March 12, 1959
    ...writ or restated therein, were sufficiently made a part of the alternative writ by being incorporated by reference. See Glendinning v. Curry, 153 Fla. 398, 14 So.2d 794. In her petition the relatrix recited that she was a stockholder, owning 20% of the corporation's shares; that she had ask......
  • Larson v. Harrison
    • United States
    • Florida Supreme Court
    • June 13, 1962
    ...involves an exercise of some portion of the sovereign power, either in making, executing, or administering the laws.' Glendinning v. Curry, 153 Fla. 398, 14 So.2d 794; Advisory Opinion to the Governor, 146 Fla. 622, 1 So.2d 636. It does not appear that this court has heretofore determined w......
  • City of Miami v. Meynarez
    • United States
    • Florida District Court of Appeals
    • July 18, 1989
    ...budgetary necessity of a city manager's authority to abolish job positions where he does so in good faith, see Glendinning v. Curry, 153 Fla. 398, 413, 14 So.2d 794, 802-03 (1943), here the circuit court, acting in its appellate capacity and relying on the facts as reported by the Miami Civ......
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