Nelson v. Lindsey

• Decision Date: 23 October 1942
• Citation: 151 Fla. 596,10 So.2d 131
• Parties: NELSON v. LINDSEY et al.
• Court: Florida Supreme Court

10 So.2d 131

151 Fla. 596

NELSON v. LINDSEY et al.

Florida Supreme Court

October 23, 1942

Rehearing Denied Nov. 13, 1942. [Copyrighted Material Omitted]

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

E. F. P Brigham and William J. Pruitt, both of Miami, for appellant.

J. W. Watson, Jr., Franklin Parson, and John M. Murrell, all of Miami, for appellees.

WHITFIELD, Justice.

A member of the police force in Miami was, upon charges made and trial had before a city board, demoted from Inspector of Police to patrolman upon a finding of guilty on six separate charges of misconduct under a city ordinance.

The Circuit Court issued an alternative writ of mandamus commanding the respondent members of the city board to cancel and rescind the order of demotion or to show cause for not doing so. After proceedings were had on the issues made, the Circuit Court found that two of the charges were adequately stated and sufficiently proven. The writ was quashed and the respondent were discharged from the operation of the alternative writ. The demoted Inspector appealed.

Under Article II of the constitution, 'the powers of the government of the State of Florida' are divided into three departments, one being the 'judicial department'. By other sections of the constitution the judicial power of the State is vested in stated classes of courts with defined jurisdiction. The 'judicial power' so vested and assigned is to be exercised within the limitations of applicable paramount law 'and no person properly belonging to one of the [three] department[s] shall exercise any powers appertaining to either of the others, except in cases expressly provided for by this Constitution.'

The governmental powers of the State are required to be exercised by one of the three departments, subject to constitutional limitations. Administrative and municipal governmental authority, functions and duties may be conferred as provided by law, all of which are subject to control by one or more of the three departments having governmental powers.

Section 4, Declaration of Rights, provides that: 'All courts in this state shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.'

The above quoted and other organic provisions do not contemplate that the exercise of a purely legislative power or of a purely executive power shall be subject to judicial review, except to a limited extent in proper cases to determine whether controlling organic law has been violated by a particular exercise of such a purely legislative or purely executive power to the injury of rights secured by the dominant constitution. See State v. Drew, Governor, 17 Fla. 67; State v. Cone, 137 Fla. 496, 188 So. 93; State v. Coleman, 115 Fla. 119, 155 So. 129, 92 A.L.R. 988.

Where the law confers discretionary administrative authority upon officials or boards and makes the exercise of such discretion a prerequisite to action taken, such action will not be controlled by mandamus unless the discretion conferred is abused and illegally violates rights of complaining parties. Towle v. State, 3 Fla. 202; State v. Barnes, 25 Fla. 298, 5 So. 722, 23 Am.St.Rep. 516, or to require an illegal act to be done, State v. Gray, 125 Fla. 445, 170 So. 137; State v. Stewart, 49 Fla. 259, 38 So. 600. If the officer or board has no discretion in paying salaries of officers or performing other definite statutory duty, failure or refusal to perform the required duty may be remedied by mandamus. State ex rel. Weeks v. Gamble, 13 Fla. 9; State v. Lee, 142 Fla. 154, 194 So. 315. See, also, State v. Barker, 113 Fla. 865, 152 So. 682, 94 A.L.R. 1481; Cone v. State, 144 Fla. 738, 198 So. 689.

Section 8, Article VIII, of the Constitution provides: 'The Legislature shall have power to establish, and to abolish, municipalities to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. When any municipality shall be abolished, provision shall be made for the protection of its creditors.'

Section 34, Article V, of the constitution provides: 'The Legislature may establish in incorporated towns and cities, courts for the punishment of offences against municipal ordinances.'

Apparently section 8, Article VIII, does not contemplate that the legislature will confer upon municipalities any judicial power other than as stated in section 34, Article V, above quoted.

In general the governmental authority conferred by the legislature upon municipalities may be quasi legislative, executive or judicial, but they are essentially administrative functions and duties, in accordance with immemorial custom, and within controlling organic provisions.

Under section 8, Article VIII, the legislature has express comprehensive powers to provide for the government and to prescribe the jurisdiction and powers of municipalities, when no other applicable organic provision is thereby violated.

The action of the municipal board here sought to be reviewed, and remedied if invalid, is in its essential nature administrative or at most only quasi judicial. The ordinances of the city under which the challenged action was taken being municipal quasi legislation that is authorized by statute under section 8, Article VIII, of the constitution, and it is not shown to be invalid. It is authority for reasonable action duly taken under the ordinances.

Section 8, Article VIII, does not contemplate arbitrary municipal authority or action. Nor do the Charter Acts of a city contemplate that unreasonable ordinances will be adopted or that authorized ordinances will be illegally or unreasonably or arbitrarily applied or enforced.

Municipal officers are subject to removal only in the manner and by the authority determined by the legislature. In re Opinion of the Justices, 121 Fla. 157, 163 So. 410.

'In so far as legal weight and effect of administrative decisions of quasi legislative or quasi executive character is concerned, courts will not review such decisions for mere procedural errors or erroneous conclusions of fact, where administrative agency, in arriving at decision, violated no rule of law and record as entirety does not show abuse of delegated authority or arbitrary or unreasonable action.' Headnote 3, State v. Whitman, 116 Fla. 196, 150 So. 136, 156 So. 705, 95 A.L.R. 1416.

'To extent that administrative statutory tribunal or agency is vested with statutory power to make decisions having judicial character, courts regardless of specially provided method of appeal, will grant relief by means of available commonlaw processes against quasi judicial decision of administrative agency, where decision is improvident, erroneous, or unjustified and shown to divest or impair some vested legal right.' Headnote 4, State v. Whitman, 116 Fla. 196, 150 So. 136, 156 So. 705, 706, 95 A.L.R. 1416.

Matters to be considered here are whether the municipal action complained of conforms to authority legally conferred, and whether it is a legal and reasonable exercise of administrative judgment predicated upon required procedure and appropriate evidence as shown by the record as made.

Mandamus is an appropriate method of review and remedy when an administrative municipal board is duly charged with illegally depriving relator of his right to continue in the official position he legally holds under authorized ordinances of a municipality, and no other adequate remedy is afformed by the laws of the State. Peremptory writ should be issued only upon evidence duly adduced and clearly sufficient in probative force to prove the right of relator to the writ under the issues made. See Roark v. State, 122 Fla. 843, 165 So. 901; Nichols v. State, 138 Fla....