State ex rel. Reynolds v. Roan

• Decision Date: 26 June 1968
• Docket Number: No. 36944,36944
• Citation: 213 So.2d 425
• Parties: STATE of Florida ex rel. W. D. REYNOLDS, Appellant, v. John D. ROAN, Appellee.
• Court: Florida Supreme Court

Page 425

213 So.2d 425

STATE of Florida ex rel. W. D. REYNOLDS, Appellant, v. John D. ROAN, Appellee.

No. 36944.

Supreme Court of Florida.

June 26, 1968.

Rehearing Denied Sept. 13, 1968.

Wm. Terrell Hodges of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

Thomas C. MacDonald, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, and Robert B. McDaniel, of Condon & McDaniel, Naples, for appellee.

ROBERTS, Justice.

This is an appeal from a judgment of the Circuit Court for Collier County entered in a proceeding in Quo Warranto filed October 24, 1967, by relator-appellant W. D. Reynolds to determine the effect of Section 6A of Article VIII of the Constitution of Florida, F.S.A. This constitutional provision was adopted in 1966 and provides as follows:

'In those counties authorized to appoint a superintendent of public instruction under Article XII of the state constitution the superintendent shall serve at the pleasure of the board provided that the board may enter into a contract of employment with such appointed county superintendent which contract shall not extend beyond the thirtieth day of June in the year in which the terms of a majority of the members of the board of public instruction shall expire. The county superintendent shall not be commissioned by the governor but shall be required to file with the county board of public instruction a good and sufficient bond and in such sum and upon such condition as the legislature by law shall prescribe for elective superintendent as provided by Section 7, Article VIII of the state constitution. Added, general election, Nov. 8, 1966, eff. Nov. 9, 1966.'

Prior to this amendment under the then applicable provisions of Section 6, Article VIII, Florida Constitution, appellant was elected as Superintendent of Public Instruction of Collier County in the general election of 1952 and re-elected for successive four-year terms commencing in 1957 and 1961. His last elective term expired in January, 1965. During appellant's last elective term the Florida Legislature adopted a resolution proposing an amendment to Section 2 of Article XII, Constitution of Florida, providing that the county superintendent in fifteen counties, including Collier, would be appointed by the county board of public instruction should the amendment be adopted statewide and approved by special referendum in the several counties. The proposed amendment, Section 2B of Article XII, was adopted at the general election held November 6, 1962, and approved in Collier County on November 5, 1963.

At a meeting of the Board of Public Instruction of Collier County held March 2, 1964, a resolution was passed appointing Mr. Reynolds to a term of two years commencing at the expiration of his elective term in January, 1965. This action was ratified by the Board on January 18, 1965, following the expiration of his elective term; however, the Secretary of State declined to issue a commission to Mr. Reynolds, under the then applicable provisions of Section 7, Article VIII, on the ground that the term of office prescribed by Section 6, Article VIII, was for four years and the two-year term was inconsistent therewith. Thereafter, Mr. Reynolds served without commission until the Board appointed him to a term beginning May 31, 1966, and ending on the first Monday in January 1969--thereby, in effect, appointing him to the full four-year term prescribed by Section 6, Article VIII. Upon presentation of a copy of these minutes to the Secretary of State, a formal commission, dated May 31, 1966, was issued to Mr. Reynolds signifying his right to the office for the stated term.

In the November 1966 general election--some five months after Mr. Reynolds was commissioned--Section 6A of Article VIII, quoted above, was adopted by the people and became a part of our organic law. On August 2, 1967, some fifteen months after the issuance of Mr. Reynolds' commission and approximately nine months after the adoption of the amendment, the Board by appropriate motion declared the office of Superintendent of Public Instruction of Collier County to be vacant and appointed the respondent, John D. Roan, to the office. This proceeding in Quo Warranto, testing the right and authority of Mr. Roan to hold the office, was instituted by the appellant, as Relator, and the Alternative Writ was issued, directed to Mr. Roan. By the judgment here reviewed, the Circuit Judge construed the constitutional provisions referred to above and concluded that Mr. Reynolds was not entitled to the office and that Mr. Roan was 'duly and properly' appointed to the office and is the rightful holder thereof. This appeal by Mr. Reynolds followed, as authorized by Section 4(2), Article V, Florida Constitution.

The question here is whether Section 6A, Article VIII, supra, was properly interpreted by the Board, and by the Circuit Judge in the judgment Sub judice, as authorizing the summary removal from office of an incumbent superintendent of public instruction who is serving an unexpired term under a valid appointment by the Board and under a properly issued and unexpired commission signed by the Governor of this state. This question must be answered in the negative.

As noted above, Section 2B, Article XII, adopted in the general election of 1962, amended the constitutional provision (Section 6, Article VIII) under which county officers--including the office of county superintendent of public instruction--were required to be elected for a four-year term, by providing that in those...