State v. Henry

• Decision Date: 30 November 1910
• Citation: 60 Fla. 246,53 So. 742
• Parties: STATE ex rel. BRIDGES v. EHNRY.
• Court: Florida Supreme Court

53 So. 742

60 Fla. 246

STATE ex rel. BRIDGES v. EHNRY.

Florida Supreme Court

November 30, 1910

Headnotes Filed Jan. 4, 1911.

In Banc. Error to Circuit Court, Leon County; John W. Malone Judge.

Quo warranto by the State, on the relation of B. H. Bridges against A. M. Henry. From an order denying the writ, relator brings error. Reversed.

Syllabus by the Court

SYLLABUS

Removal from office being authorized only for certain causes, the court may inquire into the existence of the jurisdictional facts; that is, whether the facts upon which the removing power acted were legal cause for removal.

A writ of error lies to the refusal to issue a writ of quo warranto.

COUNSEL Neeley & Simmons, for plaintiff in error.

F. T Myers, for defendant in error.

OPINION

PARKHILL, J.

We think the writ ought to issue in this case, and that the circuit judge erred in denying the petition.

Removal from office is authorized only for certain causes in this state, and the court may inquire into the existence of the jurisdictional facts; that is, whether the facts upon which the removing power acted were legal cause for removal. 23 Am. & Eng. Ency. Law (2d Ed.) 429; State ex rel. Attorney General v. Johnson, 30 Fla. 433, 11 So. 845, 18 L. R. A. 410. A writ of error lies to the refusal to issue the writ of quo warranto herein.

The petition herein seeks to present the jurisdictional fact whether the conduct of relator upon which he was removed from office was a legal cause for removal under the Constitution of this state. A prima facie case at least is made by the petition.

The order denying the writ will be reversed. It is so ordered. All concur, except SHACKLEFORD, J.

DISSENTING

SHACKLEFORD J. (dissenting).

B. H. Bridges filed an information in the nature of quo warranto, wherein he sought the issuance of a writ to A. M. Henry, requiring him to show by what warrant or authority he held the office of assistant state chemist, exercised the functions and received the emoluments thereof, and to make answer to the allegations of the information; the informant claiming that he was rightfully and legally entitled to such office, and reciting and alleging the facts upon which he based such claim. The cause coming on to be heard upon the application of the informant for such writ, a judgment was pronounced and rendered by the circuit court denying such application and refusing to issue the writ. The informant seeks to have this judgment reviewed here by writ of error.

Right at the outset we find ourselves confronted with the question as to whether or not the judgment so rendered is of such a nature as to support a writ of error; the defendant in error earnestly contending that it is not. We have repeatedly held that a writ of error will lie only to a final judgment; the only exception being to orders granting new trials. See section 1691 of the General Statutes of 1906, and the construction placed thereon in Mizell Live Stock Co. v. J. J. McCaskill Co., 57 Fla. 118, 49 So. 501, wherein prior decisions of this court will be found cited. As we held in the cited case, under this statute, as at the common law, two prerequisites to the right of review by writ of error existed, there must have been not only a finality of the cause in the inferior court, but there must have entered into that judgment the element of involuntariness. Are such prerequisites to be found in the instant case? There can be no doubt as to element of involuntariness being present, and, tested by the rule laid down in Harrison v. Thurston, 11 Fla. 307, which has been approved and followed in subsequent decisions, I think that the element of finality must be said to be also present. It 'is such a judgment as leaves nothing undetermined and pending in the court below.' Having reached the conclusion announced, nothing more could have been done by the trial court. Still earlier decisions of this court to the same effect will be found referred to in the cited cases. Also see Jeffreys v. Coleman, 20 Fla. 536. Watkins v. Venable, 99 Va. 440, 39 S.E. 147, will be found to be very much in point.

Having determined this point, I am now called upon to decide whether or not the trial court erred in refusing the writ. I do not consider it necessary to set out the information, or the five exhibits attached thereto and made a part thereof. Very briefly stated, it is alleged that the informant had been appointed and commissioned by the Governor, under chapter 5662, Laws of Florida of 1907, assistant state chemist, for the term of four years from the 2d day of September, 1907; that on the 21st day of May, 1909, he was arrested, at the instance of the Governor, and presented before a special committee of the state Senate, which was then in session. Then follows a statement of the proceedings had before such committee, which we shall presently discuss, in so far as we deem the same necessary, after which it is alleged that the informant was removed from his office by the Governor, on the 25th day of May, 1909, the Senate then and for 10 days thereafter being in session, and that on the 28th day of May, 1909, the respondent was appointed and commissioned to fill the unexpired term of the informant. The informant contends that his removal from office was without warrant or authority of law, consequently such appointment of the respondent was illegal, basing such contention upon the matters and things contained in the information and the accompanying exhibits, and the informant seeks reinstatement in his office. It is further alleged that the informant had presented to the Attorney General 'a sworn relation and petition for an information in the nature of quo warranto, which petition the said Attorney General has refused.'

Section 15 of article 4 of the state Constitution, upon which the action of the Governor was based, 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...