State Ex Rel. Hardie v. Coleman

• Decision Date: 26 May 1934
• Citation: 115 Fla. 119,155 So. 129
• Parties: STATE ex rel. v. COLEMAN.
• Court: Florida Supreme Court

155 So. 129

115 Fla. 119

STATE ex rel. v. COLEMAN.

Florida Supreme Court

May 26, 1934

En Banc.

Original proceeding in quo warranto by the State of Florida, on the relation of Dan Hardie, against D. C. Coleman. On demurrer and motion to quash the information.

Demurrer to the information sustained.

COUNSEL

E. F. P. Brigham and Stafford Caldwell, both of Miami, for relator.

James M. Carson, Ben C. Willard, and A. C. Dressler, all of Miami for respondent.

OPINION

TERRELL, Justice.

In November, 1932, the relator, Dan Hardie, was elected sheriff of Dade county. He was commissioned and assumed the duties of said office in January, 1933. In October of the same year, by four consecutive orders of the Governor he was suspended from office under section 15 of article 4 of the Constitution, and the respondent D. C. Coleman was appointed in his stead.

Executive order No. 1 was predicated on 'neglect of duty in office' and 'incompetency,' in that Anne M Corbet, a woman of high character, went to the office of Dan Hardie, in February or March 1933, to protest against the inhuman, unmanly, and cruel manner in which his deputies had made an arrest of Gilbert Jones, but that the said sheriff refused to listen to the protests of the said Anne M. Corbet or to make an investigation of the facts, he further became abusive and insulting to her and permitted one of the deputies, Paulson by name, to insult her, and he instructed Paulson in her presence to see that Gilbert Jones went to the chain gang.

Executive order No. 2 was predicated on 'malfeasance' and 'misfeasance,' in that the said Dan Hardie did in March, 1933, have delivered to him at his home for his personal use many items of food purchased for the consumption of the prisoners in the Dade county jail.

Executive order No. 3 was predicated on 'neglect of duty in office' and 'incompetency,' in that during the month of April, 1933, three ladies called on the said Dan Hardie at his office for the purpose of advising him of facts in connection with the beating to death of an old man by masked men, in the city of Miami, but the said sheriff refused to listen to the facts as proposed to be disclosed to him and he acted in such a discourteous and vulgar manner that the said ladies were forced to leave his presence without revealing their mission which it was his duty to hear and investigate.

Executive order No. 3 also sets up that in the month of July, 1933, on another occasion, three ladies called on Dan Hardie to discuss a certain kidnapping just outside the corporate limits of the city of Miami, but that on this occasion he exhibited such lack of sound judgment and mental stability that he persisted in exhibiting to them different guns and weapons which he was prepared to use in defending himself from imaginary attacks by gangsters, and his entire conduct was such that he was far from being a man of sound judgment and mental stability.

Executive order No. 4 was predicated on 'malfeasance,' 'misfeasance,' 'neglect of duty in office' and 'incompetency,' in that Dan Hardie did prior to March 23, 1933, actively enter into and participate in the making of plans to throw dynamite upon a certain building in the city of Miami, and did aid, counsel, and advise one Warren D. Fletcher in making said plans and did plan with the said Warren D. Fletcher to kill one L. W. Rogers and Emory Burton, they having been induced by Fletcher to go forward with the plans for dynamiting said building.

Executive order No. 4 also alleges that Dan Hardie was fully advised and cognizant of a conspiracy between the said Fletcher Rogers, and Burton to commit the crime as heretofore charged in executive order No. 4, but that he failed and neglected to arrest the said Fletcher, Rogers, and Burton for the said crime as it was his duty to do.

On November 7th, the Governor accorded Dan Hardie a hearing on his application for reinstatement, at which time much testimony was taken concerning the charges against him, as defined in the four executive orders. December 7th, the Governor wrote Dan Hardie a letter advising him that he had found the charges for which he was suspended to be true, that he failed to produce evidence to disprove them, and that his application for reinstatement was denied.

Information in the nature of quo warranto was then filed in this cause. D. C. Coleman, the sheriff appointed to succeed Dan Hardie, was named respondent and a writ of quo warranto was issued, directed to him without prejudice to the determination hereafter of any jurisdictional question which may be involved affecting the character, scope, and extent of the jurisdiction to be exercised. A demurrer and motion to quash the information were entered, and the cause now comes on for disposition on that demurrer and motion.

We are first confronted with the question of whether or not this court will, on quo warranto, review the act of the Governor in suspending sheriff Hardie by virtue of the power vested in him under section 15 of article 4 of the Constitution.

Section 15 of article 4 is as follows:

'All officers that shall have been appointed or elected, and that are not liable to impeachment, may be suspended from office by the Governor for malfeasance, or misfeasance, or neglect of duty in office, for the commission of any felony, or for drunkenness or incompetency, and the cause of suspension shall be communicated to the officer suspended and to the Senate at its next session. And the Governor, by and with the consent of the Senate, may remove any officer, not liable to impeachment, for any cause above named. Every suspension shall continue until the adjournment of the next session of the Senate, unless the officer suspended shall, upon the recommendation of the Governor, be removed; but the Governor may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against him are untrue. If the Senate shall refuse to remove, or fail to take action before its adjournment, the officer suspended shall resume the duties of the office. The Governor shall have power to fill by appointment any office, the incumbent of which has been suspended. No officer suspended who shall under this section resume the duties of his office, shall suffer any loss of salary or other compensation in consequence of such suspension. The suspension or removal herein authorized shall not relieve the officer from indictment for any misdemeanor in office.'

Under this provision of the Constitution, the Governor may suspend any officer not liable to impeachment, for malfeasance, misfeasance, neglect of duty in office, commission of any felony, drunkenness or incompetency, and for no other causes.

Malfeasance has reference to evil conduct or an illegal deed, the doing of that which one ought not to do, the performance of an act by an officer in his official capacity that is wholly illegal and wrongful, which he has no right to perform or which he has contracted not to do. 'Words and Phrases, First, Second, Third, and Fourth Series, malfeasance; Webster's New International Dictionary.'

Misfeasance is sometimes loosely applied in the sense of malfeasance. Appropriately used, misfeasance has reference to the performance by an officer in his official capacity of a legal act in an improper or illegal manner, while malfeasance is the doing of an official act in an unlawful manner. Misfeasance is literally a misdeed or a trespass, while nonfeasance has reference to the neglect or refusal without sufficient excuse to do that which was an officer's legal duty to do.

Neglect of duty has reference to the neglect or failure on the part of a public officer to do and perform some duty or duties laid on him as such by virtue of his office or which is required of him by law. It is not material whether the neglect be willful, through mailce, ignorance, or oversight. When such neglect is grave and the frequency of it is such as to endanger or threaten the public welfare it is gross. Attorney General v. Jochim, 99 Mich. 358, 58 N.W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606.

The commission of a felony as ground for removal from office has reference to a felony as distinguished from a misdemeanor under our statute, and, as such, comprehends any crime punishable by death or imprisonment in the state prison. Section 5006, Revised General Statute of 1920, section 7105, Compiled General Laws of 1927. Suspension and removal for the commission of a felony is not predicated on the current use of that term.

Drunkenness, as ground for suspension and removal, has reference to such use of spirituous, vinous, or malt liquors as impairs or incapacitates an officer in the efficient discharge of his official duties. The impairment or incapacity may be slight, temporary, or permanent. It has been said to be a self-imposed disability, and in consequence is not to be regarded with that kindness and indulgence which we concede to blindness, deafness, or any other physical infirmity.

Incompetency as a ground for suspension and removal has reference to any physical, moral, or intellectual quality, the lack of which incapacitates one to perform the duties of his office. Incompetency may arise from gross ignorance of official duties or gross carelessness in the discharge of them. It may also arise from lack of judgment and discretion or from a serious physical or mental defect not present at the time of election, though we do not imply that all physical and mental defects so arising would give ground for suspension.

In State v. Joughin, 103 Fla. 877, 138 So. 392, this court held that the power vested in the Governor to suspend an officer under Section 15 of article 4 of the Constitution is executive. Owens v. Bond, 83 Fla. 495, 91 So....