Renshaw v. State ex rel. Hickland

• Decision Date: 20 January 1942
• Citation: 149 Fla. 342,5 So.2d 700
• Parties: RENSHAW, City Manager, et al. v. STATE ex rel. HICKLAND.
• Court: Florida Supreme Court

5 So.2d 700

149 Fla. 342

RENSHAW, City Manager, et al. v. STATE ex rel. HICKLAND.

Florida Supreme Court

January 20, 1942

J. Harvey Robillard, of Miami Beach, and L. A. Schroeder, Jr., of Miami, for plaintiffs in error.

Jack Kehoe, of Miami, and A. Samuel Bender, of Miami Beach, for defendant in error.

CHAPMAN, Justice.

From an order awarding a peremptory writ of mandamus entered by the Circuit Court of Dade County, Florida, directed to the City of Miami Beach, the respondent below, commanding it to restore Albert G. Hickland, the relator below, to the position of Taxi Cab Inspector formerly held with said city, and pay to him the sum of $5,890 on account of back salary at the sum of $190 per month from October 1, 1938, to May 1, 1941, an appeal has been perfected to this Court.

Chapter 18696 Special Acts of 1937, Laws for Florida, created a Civil Service System for designated officers and employees of the City of Miami Beach. The Act was made effective by a majority of the qualified voters of the City of Miami Beach voting at an election held for that purpose during January, 1938.

Section 10 of the Act provided that any person holding an office of position in the classified service of the city and having been so employed for a period of nine months prior to the time that the Act became effective by ratification and approved by the voters should be retained and not subject to the working test set out in the Act. The relator below is admitted to be within this classification as he had been an employee of said city since 1935. He was paid by the respondent below for his services previously rendered to the City monthly, inclusive of June, 1938. He was away on a vacation for the months of July, August and September, 1938, and did not claim compensation for these months. The relator was an employee of the classified service and it is contended that he was removed arbitrarily and not in conformity with the several provisions of Chapter 18696, supra, and the personnel rules proposed by the Personnel Board and adopted by the City Council of Miami Beach, Florida.

The relator was given employment as a Motor Vehicle Inspector by the City of Miami Beach during the year 1935 by the City Manager and retained the employment until July 1, 1938, under Ordinance No. 368:

'Be it ordained by the City Council of the City of Miami Beach, Florida:

'That Ordinances numbered 251 and 356 of the City of Miami Beach Florida, be and they are each hereby amended by adding thereto immediately after Section 14 thereof the following Section 'Section 1: 'Section 14-A: It shall be the duty of the Operator of each such motor vehicle to present same to the City Manager or such officer as he may designate, at least once each month during the life of said permit for inspection to ascertain as to whether or not such motor vehicle is in good and sufficient mechanical condition. Notation of such inspection shall be made by the inspector upon the permit carried by said operator. Failure to present said motor vehicle for inspection, or if upon inspection same shall be found not to be in good and sufficient mechanical condition, shall render the permit for same to operate subject to revocation. The fee for each such inspection shall be Two Dollars ($2.00) to be paid by the operator of said motor vehicle and shall go into the City Treasury. The salary of said Inspector shall be $150.00 per month.'

'Section 2: Whereas, an emergency exists, this Ordinance is hereby declared to be an emergency measure on the ground of urgent public need for the preservation of peace, health, safety, welfare, and property in the City of Miami Beach.

'Section 3: All Ordinances and parts of Ordinances in conflict herewith are hereby repealed.

'Passed and adopted this 2nd day of January, 1935.'

The duty of inspecting motor vehicles by Ordinance No. 521 enacted August 17, 1938, by the City of Miami Beach was changed from the City Manager to the Police Department of the city. The Ordinance No. 368 under which employment was given the relator by the City Manager was repealed and the duties of car inspector transferred to the Police Department. It is not contended that the City was without the power to enact Ordinance No. 521, thereby repealing Ordinance No. 368.

Ordinance No. 521 provides:

'Be it ordained by the city of Miami Beach, Florida:

'Section 1: That Section 14-A of Ordinance No. 356 of the City of Miami Beach, Florida, be and the same is hereby amended to read as follows:

'Section 14-A: It shall be the duty of the operator of each such motor vehicle to present same to the Police Department of said City at least six times during each year on notice by said department, during the life of said permit, for inspection to ascertain as to whether or not such motor vehicle is in good and sufficient mechanical condition. Notation of such inspection shall be made by said Police Department upon the permit carried by said operator. Failure to present said motor vehicle for inspection, or if upon inspection same shall be found not to be in good and sufficient mechanical condition, shall render the permit for same to operate, subject to revocation. The fee for each inspection shall be Two ($2.00) Dollars, to be paid by said operator of said motor vehicle and shall go into the City Treasury.

'Section 2: Ordinance No. 368 of the City of Miami Beach, Florida, and all ordinance and parts of ordinances in conflict herewith are hereby repealed.

'Passed and adopted this 17th day of August, A. D. 1938.'

The record discloses that the relator was by the respondent paid for his services until July 1, 1938. The ordinance transferring the duties of Car Inspector from the City Manager to the Police Department was enacted August 17, 1938. It was suggested that the duties of Car Inspector were increasing and more efficient service could be effected by inspection of the cars by the Police Department rather than by the City Manager, under whom the relator performed his services. The relator testified that he was advised in September, 1938, that his employment had been abolished. Relator had rendered at one time services as Liquor Inspector.

The alternative writ of mandmaus issued on July 19, 1940, approximately two years after relator received his last salary check. The reasons assigned for not filing suit earlier appear in the record and have been carefully considered. The question presented for adjudication is: Is the relator, from this state of the record, by his conduct and failure to institute action within the two year period, now barred by lapse of time from maintaining this action?

The case of Landis, Atty. Gen. ex rel. Quigg v. Reeve, 106 Fla. 28, 142 So. 654, 655, involved the office of Chief of Police of the City of Miami, Florida. The incumbent was removed and another appointed and assumed the duties of the office and had discharged them for a period of approximately three years when suit was filed seeking reinstatement. The lower court denied the order sought and on appeal here the same was affirmed, when this Court, in part, said 'Even when one is illegally removed from an office he must act with reasonable diligence to have himself reinstated. He cannot acquiesce for more than three years during which another has been appointed to fill the vacancy caused by his removal, has performed the duties and drawn the compensation, and...