Roark v. State Ex Rel. Mcdaniel

• Decision Date: 20 February 1936
• Citation: 165 So. 901,122 Fla. 843
• Parties: ROARK, City Manager of Pensacola, et al. v. STATE ex rel. McDANIEL.
• Court: Florida Supreme Court

165 So. 901

122 Fla. 843

ROARK, City Manager of Pensacola, et al. v. STATE ex rel. McDANIEL.

Florida Supreme Court, Division B.

February 20, 1936

Rehearing Denied March 14, 1936.

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Action by the State, on the relation of F. P. McDaniel, for a writ of mandamus against George J. Roark, as City Manager of Pensacola, and others. To review a judgment awarding peremptory writ of mandamus, the defendants bring error.

Affirmed.

COUNSEL Ernest E. Mason and William Fisher, both of Pensacola, for plaintiffs in error.

Coe &amp McLane, of Pensacola, for defendant in error.

OPINION

BUFORD Justice.

The writ of error here brings for review judgment awarding peremptory writ of mandamus. The command of the writ is:

'It is therefore ordered that the respondent George J. Roark as City Manager of the City of Pensacola, do cause the relator to be re-instated in his employment as motorcycle officer in the service of the City of Pensacola upon the police force thereof as of February 7, 1935, and do cause to be paid to him his compensation as such employee and that the said J. E. Frenkel, as Clerk-Comptroller of the City of Pensacola do issue warrant upon the City Treasury for compensation to relator at the rate prescribed by law for his rank and grade of employment, towit, the sum of $147.50 per month, covering the period from February 7 1935, to date of his reinstatement, and that the said George J. Roark do countersign the same, or that they and each of them do make return hereto showing their compliance with the commands herein, to this court on the 3rd day of August, A. D. 1935.'

The record shows relator, defendant in error here, was appointed motorcycle officer on the police force of the city of Pensacola January 8, 1932; that he was so appointed from an 'eligible' civil service list, the existence of which is provided for by the city charter. He was removed from his office or employment on February 7, 1935. He was removed without trial. The alternative writ of mandamus was issued July 1, 1935.

We do not find that the relator was barred by laches. That mandamus is the proper remedy to be invoked in such case is well settled. See Roark, City Manager, v. State ex rel. Waters, 107 Fla. 659, 145 So. 867. As to laches, see Shelby v. City of Pensacola, 112 Fla. 584, 151 So. 53, and cases there cited.

The controlling question presented for our determination is:

'Was relator removed from the position of motorcycle officer of the police force in a lawful manner so as to effectuate his discharge from such police force?'

The charter act is chapter 15425, Special Acts 1931. Sections 15, 16, 27, 80, the first paragraph of section 90, paragraph G of section 90 and section 90 1/2, are as follows:

'Section 15. Responsibility of Manager--Powers of Appointment and Removal.--The city manager shall be responsible to the council for the proper administration of all affairs of the city placed in his charge, and to that end, subject to the civil service provisions of this charter and except as otherwise provided herein, he shall have the power to appoint and remove all officers and employees in the administrative service of the city; and the manager may authorize the head of a department or office responsible to him to appoint and remove, with the same limitations, subordinates in such department or office. Appointments made by or under the authority of the city manager shall be on the basis of the executive and administrative ability and of the training and experience of such appointee in the work which they are to perform. All such appointments shall be without definite term unless for temporary service not to exceed sixty (60) days.'

'Section 16. Removal of Officers and Employees. Officers and employees appointed by the city manager, or under his authorization, may be removed by him, or by the officer by whom appointed, at any time. In case the employee is a member of the Civil Service by reason of Section 90, the procedure for removal shall be as provided in Section 90 of this charter. All other employees who are members of the Classified Civil Service shall be removed as provided in Section 80 of this charter and the decisions under the provision of such section final.'

'Section 27. Suspension and Removal of Chief of Police, Fire Chief, Policemen and Firemen.--The city manager shall have the exclusive right to suspend the chief of police and fire chief for incompetence, neglect of duty, immorality, drunkenness, failure to obey orders, given by proper authority, or for any other just or reasonable cause. If either of such chiefs be so suspended the city manager shall forthwith certify the fact, together with the cause of suspension, to the council, who within five (5) days from the date of receipt of such notice, shall proceed to hear such charges and render judgment thereon, which judgment shall be final. Provided, however, that such removal from the office of chief of police or fire chief shall not have the effect of discharging the said person from the classified civil service unless a trial is had in accordance with the provisions of Section 80 of this Act.

'The chief of police and fire chief shall have the right and power to suspend any of the officers and employees in their respective divisions who may be under their control and management for incompetence, neglect of duty, immorality, drunkenness, failure to obey orders given by proper authority, or for any just or reasonable cause. If any officer or employee be suspended as herein provided the chief of the division concerned shall forthwith in writing certify the fact together with the cause of suspension to the director of public safety. The latter shall refer it immediately to the director of civil service, who, five (5) days from the receipt of such communication, shall summons the civil service board to convene and hear such charges and render judgment, which judgment shall be final.'

'Section 80. Removals.--Any officer or employee of the city appointed by the manager, or upon his authorization, may be laid off suspended or removed from office or employment either by the manager or the officer by whom appointed. Verbal or written notice of lay-off, suspension or removal given to an officer or employee, or written notice left at or mailed to his usual place of residence, shall be sufficient to put any...