Knight v. Atkin

• Decision Date: 26 March 1928
• Parties: KNIGHT v. ATKIN et al. as County Com'rs.
• Court: Florida Supreme Court

116 So. 239

95 Fla. 526

KNIGHT v. ATKIN et al. as County Com'rs.

Florida Supreme Court, Division B.

March 26, 1928

Error to Circuit Court, Indian River County; Elwyn Thomas, Judge.

Proceeding by J. W. Knight, as relator, for mandamus to be directed to John H. Atkin and others, as County Commissioners of Indian River County. Judgment dismissing an alternative writ, and relator brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Sheriff appointed for county created in 1925 held office until election and qualification of successor at general election in 1926; successor to sheriff, appointed for county created in 1925, elected in 1926, was properly elected and commissioned for unexpired term ending in January, 1929 (Const. art. 18, §§ 10, 14). A sheriff of a county, being among the county officers named in section 10, art. 18, of the Constitution, whose terms of four years each began under section 14, art. 18, on the first Tuesday after the first Monday in January next after their election in 1888, the terms of such officers ended in January, 1893, and every four years thereafter, so that where a new county was created in 1925, the sheriff appointed for such new county held until the election and qualification of a successor at the general election in 1926, and such successor was properly elected and commissioned for the unexpired term ending in January, 1929. As to the terms of county officers not mentioned in section 10, art. 18, of the Constitution, see Advisory Opinion to Governor (Fla.) 114 So. 889.

COUNSEL

C. P. Diamond, of Vero Beach, for plaintiff in error.

James T. Vocelle, of Vero, for defendants in error.

OPINION

WHITFIELD P.J.

An alternative writ of mandamus issued by the circuit judge, in substance, alleges that Indian River county was created by chapter 10148, Acts of 1925; that relator was on July 1 1925, appointed and commissioned by the Governor as sheriff of Indian River county to serve till the next ensuing general election and until his successor be elected and qualified that relator was at the general election in November, 1926 elected sheriff of said county and by inadvertence relator was commissioned to serve as such sherriff until the first Tuesday after the first Monday in January, 1929; that the official bond of relator will expire in January, 1929, at the expiration of the commission under which relator is now serving as such sheriff; that relator has been advised that, upon the execution and due approval of a new bond, a new commission will be issued to relator to serve as sheriff of said county, under his election in November, 1926, for the term of four years, which term will expire on the first Tuesday after the first Monday in January, 1931; that relator avers that by virtue of his election in 1926, he is entitled to a commission for a term of four years ending on the first Tuesday after the first Monday in January, 1931; that the relator has tendered a duly executed bond to the respondents as county commissioners, and they have refused to approve the said official bond because they aver the relator was elected in 1926 for two years, and not for four years. The respondents, in effect, admitted the allegations of the alternative writ and asked to be dismissed from the cause on the ground that it is not their duty to approve a bond for a term extending to January, 1931. The court dismissed the alternative writ, and the relator took writ of error.

The Constitution provides that:

'The first election for county judge, clerk of the circuit court, sheriffs, tax assessor, tax collector, * * * county superintendent of public instruction, county surveyor, justices of the peace,

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