State ex rel. Mann v. Burns, A-274

• Decision Date: 26 February 1959
• Docket Number: No. A-274,A-274
• Citation: 109 So.2d 195
• Parties: STATE of Florida ex rel. Harold D. MANN, Relator, v. Haydon BURNS, as Mayor-Commissioner of the City of Jacksonville Florida, Dallas L. Thomas, Louis H. Ritter, J. Dillon Kennedy and Claude Smith as City Commissioners of the City of Jacksonvillee, constituting the City Commission of the City of Jacksonville, and City of Jacksonville, a municipal corporation, Respondents.
• Court: Florida District Court of Appeals

Page 195

109 So.2d 195

STATE of Florida ex rel. Harold D. MANN, Relator, v. Haydon BURNS, as Mayor-Commissioner of the City of Jacksonville Florida, Dallas L. Thomas, Louis H. Ritter, J. Dillon Kennedy and Claude Smith as City Commissioners of the City of Jacksonvillee, constituting the City Commission of the City of Jacksonville, and City of Jacksonville, a municipal corporation, Respondents.

No. A-274.

District Court of Appeal of Florida, First District.

Feb. 26, 1959.

Harry B. Fozzard, Walter G. Arnold and M. H. Myerson, Jacksonville, for relator.

W. M. Madison, Jacksonville, for respondents.

STURGIS, Chief Judge.

An alternative writ of mandamus issued out of the Circuit Court of Duval County on the relation of Harold D. Mann, the appellant, a former police officer of the City of Jacksonville, requiring the respondent appellees, in their relation as City Commissioners and constituting the City Commission of the City of Jacksonville, to pay the relator a sum of money alleged to be due for salary as such police officer or to show cause why a peremptory writ of mandamus should not issue in the premises. This appeal is prosecuted from an order quashing the alternative writ and finally dismissing the cause.

Relator's petition and the alternative writ of mandamus based thereon reflect: That on January 14, 1953 the respondent city's Chief of Police formally notified the City Commission by letter that on January 9, 1953 he suspended the five officers, including the relator, 'after an investigation, and on advice of the Duval County Solicitor that he was filing criminal charges against them,' and requested the Commission to approve the suspensions until such time as disposition was made of the charges by the Duval County Criminal Court of Record; that on January 15, 1953 the City Commission formally approved the suspension; that on the same date as the letter the county solicitor of Duval County filed criminal informations against the relator and four of his fellow police officers, charging them with crimes arising out of an alleged robbery; that after that date sundry court proceedings were had on the several criminal charges involving the appellant, resulting in disposition without conviction of some of them, and on April 9, 1956 all criminal charges then remaining were on motion of respondent dismissed pursuant to Section 915.01 Florida Statutes, F.S.A., hence the relator was not convicted of any of the crimes with which he was charged and which formed the basis for his suspension on January 9, 1953; that on August 7, 1956 the Chief of Police filed with the City Commission formal charges against the relator for his removal on the ground of conduct unbecoming an officer, specifying matters connected with the identical transactions upon which the mentioned criminal charges were based; that on the trial before the City Commission relator was found guilty and on September 10, 1956 was discharged from the Police Department. The petition does not contest the result of this trial.

The record reflects that the petitioner was at all times between the date of his suspension on January 9, 1953 and the date of the filing of the formal charges on August 7, 1956, ready, willing and able to discharge his duties as a patrolman, and asserts that since no formal charges were lodged against him prior to August 7, 1956, the suspension of January 9, 1953 was illegal and without legal effect. It is on that basis that he asserts the right to be paid the amount to which he would have been entitled for salary during that period.

The relator-appellant relies on his status as a civil employee of the city and the provisions of chapter 16866, Laws of 1935, establishing a civil service code for such employees. He also relies on the following provisions of the city charter:

'The members of the police force shall be appointed by the City Commission, and confirmed by the City Council, as now provided by law. The City Commission shall establish general provisions and requirements for the control and suspension of members of said department by the Chief of Police and other officers of said department but no member who has served one year or more shall be removed from office without cause and without having been given a hearing by the City Commission on written charges for his removal from office. Upon the trial of the member of the police force for the removal from office, the City Commission may suspend him from office without pay, reduce him in work or remove him from office as they may deem just and proper.' Section 11, Chapter 7659, Acts of the Legislature of the State of Florida, 1917.

'The Mayor shall have the power to preserve the peace within the city; to bid in property for the city at all tax sales and under due process of law when the city is a party; to direct and control the police force under such rules and regulations as the City Commission may prescribe; to fill vacancies caused by sickness, absence or other disability of any city officer, and to suspend any city officer for misconduct in office or neglect of duty, reporting his actions with his reasons therefor in writing to the next meeting of the City Council for its approval or rejection. All suspensions by the Mayor of members or officers of the Police Department shall be reported to the City Commission within 5 days after the date of such suspension, together with such evidence, papers, or documents as the Mayor may see fit to submit, for such action as the City Commission may deem advisable. It shall be the duty of the City Commission to hold a public trial upon such suspension as early as practicable, giving due notice to the suspended member or officer of the time and place of the trial; and in passing upon such suspensions, the City Commission may suspend such officers from office without pay, reduce them in work or rank, may enlarge or shorten the time of suspension and may if in their judgment the facts warrant, remove him from office. The Mayor shall not have the power to suspend members of the City Commission of of the City Council, or any officers under them, except members of the Police Department.' Chapter 23349, Laws of Florida, 1945.

In addition, appellant relied on the following provision of Rule 69 adopted by the City Commission pursuant to the city charter 'The Chief of Police may suspend any member of the Police Department for a period not exceeding 15 days for incompetency, neglect of duty, immorality, drunkenness, failure to obey...