State Ex Rel. Wilcox v. Armstrong

• Decision Date: 23 February 1937
• Citation: 172 So. 861,127 Fla. 170
• Parties: STATE ex rel. WILCOX v. Armstrong [*]
• Court: Florida Supreme Court

172 So. 861

127 Fla. 170

STATE ex rel. WILCOX v. Armstrong ^[*]

Florida Supreme Court

February 23, 1937

Rehearing Denied March 10, 1937.

Original quo warranto proceeding by the State, on the relation of Harry Wilcox, against Irene Armstrong, etc., and others.

Demurrer to information sustained.

COUNSEL

George M. Powell, of Jacksonville, W. B. Dickenson of Tampa, Millard B. Conklin, of Daytona Beach, D. Stuart Gillis, of De Funiak Springs, and Louis Ossinsky and W. W Judge, both of Daytona Beach, for relator.

Leon J C. Harton, H. B. Hodgden, and H. E. Couchman, all of Daytona Beach, and Davis & Davis, of Madison, for respondents.

OPINION

TERRELL Justice.

The Legislature of 1933 enacted chapter 16386, Special Laws of Florida, title as follows:

'An Act to Authorize, Regulate and Control the Assessment and Levy of Taxes in the City of Daytona Beach, Volusia County, Florida, and Providing for the Regulation of the Budget of Said City, and Providing a Method for Giving the Freeholders of the City of Daytona Beach the Right to Amend the Budget by Petition and Election of the Freeholders, and Also Providing for a Referendum for the Ratification or Rejection of This Act, and for Other Purposes.'

Section 6 of said act is as follows:

'That any governing power or officer of the City of Daytona Beach, Florida, that shall contract, expend or permit to be paid out during said budget year, an amount in excess of the budget appropriation as provided for in this Act, except in an emergency caused by a dangerous public calamity or by an act of God, shall be subject to be removed forthwith by the Governor of the State of Florida and a successor shall be appointed by the Governor of the State of Florida for such unexpired time.'

Exercising the authority vested in him under the quoted section, the Governor on December 30, 1936, promulgated an executive order removing from office respondent Irene Armstrong, as mayor commissioner and commissioner at large of the city of Daytona Beach, for malfeasance, misfeasance, neglect of duty, and incompetence, in that as such officer she permitted to be expended during the budget year 1936 an amount in excess of the budget appropriation provided in said act. The executive order removing respondent designated and appointed relator, Harry Wilcox, to fill out the unexpired term ending December 7, 1937.

Respondent refusing to comply with the terms of the order of removal, relator, Harry Wilcox, on the 7th day of January, A. D. 1937, filed in this court his petition for writ of quo warranto charging that respondent was without authority of law holding and usurping the office of mayor commissioner and commissioner at large of the city of Daytona Beach and that he, the said Harry Wilcox, by virtue of the executive order removing respondent and appointing him thereto is justly and legally entitled to hold said office. Information in quo warranto was granted.

January 12, 1937, respondent filed her demurrer to the information, challenging the power of the Governor to remove her under section 6 of chapter 16386, Special Laws of Florida, on the ground that said section 6 was, in view of section 16 of article 3 of the Constitution of Florida, null and void.

On the same date respondent filed her demurrer she also interposed an answer to the information in which she set up the circumstances that led to and the authority for her election as mayor commissioner and commissioner at large of the city of Daytona Beach and her authority as such. The answer also denied in toto the charge lodged against her and for which she was attempted to be removed, it asserted that she was without authority to contract for expenditures beyond the budget appropriation, that her authority as mayor commissioner was limited by section 36 of chapter 10466, Special Laws of Florida 1925, that she had complied with the provisions of said act, that she had not been notified of any charges against her, nor was she given an opportunity to be heard in her defense prior to her removal.

On the 6th day of January, A. D. 1937, the Governor promulgated an executive order revoking, annulling, and declaring null and void the executive order of December 30, 1936, removing the respondent from office of mayor commissioner and commissioner at large of the city of Daytona Beach and appointing relator as her successor thereto. The said executive order divested relator of all power and authority as mayor commissioner, declared the executive order appointing him as such to be void ab initio, and reappointed and reinstated respondent as commissioner at large and mayor commissioner of the city of Daytona Beach. There was a change in the occupant of the Governor's office between the time the first and second executive orders of removal were promulgated so both orders were promulgated by different Governors, but that fact is not material.

The cause is before us for disposition on the issue made by the demurrer and return to the information. There are several theories on which the case could be disposed of, but all lead to the same conclusion. We will not attempt to treat all the questions raised which have been very ably presented on both sides. Our view is that section 6 of chaper 16386, Sp. Laws 1933, under which the Governor promulgated both executive orders, must fall under section 16 of article 3 of the Constitution so we limit our discussion to that question.

Section 16 of article 3 of the Constitution provides that every law enacted by the Legislature shall embrace but one subject and matter properly connected therewith, which...