State v. Givens
| Decision Date | 19 July 1904 |
| Citation | 48 Fla. 165,37 So. 308 |
| Parties | STATE ex rel. ELLIS, Atty. Gen. v. GIVENS. |
| Court | Florida Supreme Court |
In Banc. Petition of the state, on the relation of William H Ellis, Attorney General, for writ of mandamus to Darwin B Givens. Granted.
Syllabus by the Court
1. The legal presumption is that the Legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. An interpretation leading to such a result should not be adopted unless it be inevitable. The canon of construction in such cases is that if the courts can by any fair, strict, or liberal construction find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject, it is their duty to do so.
2. The duties of the office of clerk of the circuit court are of such a nature that public policy demands that there shall always, without any intermission, be some one to discharge them. The filling of a vacancy therein by the Governor in the regular way may be, owing to many contingencies, attended with serious delay. To avoid the results of such a delay, the Legislature enacted section 1393 of the Revised Statutes of 1892, empowering the circuit judges to appoint a clerk ad interim to discharge the duties of the office until, but only until, a regular appointee of the Governor to fill the vacancy, under the provisions of section 217, Rev. St. 1892 could qualify. Such an appointment by the circuit judge is only designed to meet a temporary emergency, and after such emergency has been provided for by a regular appointment and commissioning of an incumbent to fill the vacancy by the Governor, under the provisions of section 217, Rev. St. 1892, the interim appointment by the circuit judge becomes functus officio, and the official powers and authority of such ad interim appointee as clerk at once cease and determine.
3. Where a regularly elected clerk of the circuit court dies before the expiration of his term of office, and a party is appointed by the circuit judge under the provisions of section 1393, Rev. St. 1892, to be clerk ad interim, and the Governor afterwards appoints and commissions an incumbent to fill the vacancy in the office, under the provisions of section 217, Rev. St. 1892, upon the refusal of the judge's ad interim appointee to deliver the office, with its books, records, and files, to the Governor's appointee, mandamus is the proper remedy to compel such delivery; and the eligibility to the office of the Governor's appointee cannot be set up as a defense in such mandamus proceeding.
F. M. Simonton, T. E. Lucas, and Gunby & Gibbons, for plaintiff.
W. A. Carter, John P. Wall, and Solon B. Turman, for defendant. This case was instituted in this court, being one over which it has original jurisdiction. The alternative writ is as follows:
--And which appointment was made 'ad interim,' and the said Darwin B. Givens gave bond as required by law, and entered upon the duties of the clerk of the circuit court of Hillsborough county, Florida.
'Your petitioner further shows that subsequent to the 12th day of May, A. D. 1904, to wit, on the 7th day of June, A. D. 1904, W. S. Jennings, the Governor of the state of Florida, appointed Daniel J. Galvin of Hillsborough county, Florida, clerk of the circuit court of Hillsborough county, Florida, and that the said Daniel J. Galvin duly qualified according to law, and who was on the 24th day of June, A. D. 1904, duly commissioned by W. S. Jennings, the Governor of the state of Florida, as clerk of the circuit court in and for Hillsborough county, Florida, and the said commission was delivered to him, the said Daniel J. Galvin, under the seal of the state of Florida, duly attested by the Secretary of State, all of which will more fully appear by a certified copy of the commission hereto attached, and made a part of this petition.
'Your petitioner further shows that upon the receipt of said commission by Daniel J. Galvin, that he, the said Daniel J. Galvin, on the 4th day of July, A. D. 1904, made demand upon said Darwin B. Givens for the possession of said office, and the books, records, papers, seals, insignia, and property of the clerk of the circuit court for Hillsborough county, Florida, all of which was necessary in order that he might exercise the rights and perform the duties thereof of said office, but that the said Darwin B. Givens refused to deliver to the said Daniel J. Galvin possession of said office, or its books, papers, records, seals, or other insignia of office, and still refuses to deliver the same to the said Daniel J. Galvin as aforesaid. That the said Darwin B. Givens is in possession of and holding the keys to the office rooms in the courthouse building in the county of Hillsborough, set apart for the use of the clerk of the circuit court of said county, and refused to deliver possession of the same to the said Daniel J. Galvin, clerk of the circuit court, although demand for the same has been made upon him, the said Darwin B. Givens, by said Daniel J. Galvin.
'Your petitioner further shows that the action of the said Darwin B. Givens in withholding possession of the office of the clerk of the circuit court, and its books, records, seals, paraphernalia, and insignia of office as aforesaid, tends to embarrass the proper administration of the office of clerk of the circuit court in and for Hillsborough county. That said Darwin B. Givens still demands and receives, claiming to be clerk of the circuit court of Hillsborough county, the mail directed to the clerk of the circuit court, and assumes and claims to be clerk, notwithstanding the fact that by the appointment of said Daniel J. Galvin by the Governor of the state of Florida, as hereinbefore set out, the appointment 'ad interim,' heretofore set out, and made by the Honorable Joseph B. Wall, judge of the circuit court, as stated, ceased and determined.
'Now therefore, you, the said Darwin B. Givens, are hereby commanded forthwith to surrender to the said Daniel J. Galvin the possession of the said office of clerk of the circuit court of Hillsborough county, Florida, and the rooms or offices in the courthouse building in Tampa, Hillsborough county, Florida, set apart and used as the office of the clerk of the circuit court for Hillsborough county, Florida, and the keys thereto, together with all the books, papers, records, seals, files, and property of every kind and description belonging or appertaining to said office which are now in your possession; or that you appear before the Justices of our Supreme Court sitting within and for the state of Florida, at the courtroom in the city of Tallahassee, on Tuesday, the 12th day of July, A. D. 1904, at 10 o'clock a. m. of said day, and show cause why you refuse to do so, and have you then and there this writ.'
On the return day of this writ the respondent filed both a demurrer and an answer thereto, which pleadings are as follows:
'Now comes the respondent by W. A. Carter, John P. Wall, and Solon B. Turman, his attorneys, and says that the alternative writ issued in the above-entitled cause is bad in substance.
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