State v. Johnson

• Decision Date: 28 December 1892
• Citation: 11 So. 855,30 Fla. 499
• Parties: STATE ex rel. LAMAR, Attorney General, v. JOHNSON.
• Court: Florida Supreme Court

11 So. 855

30 Fla. 499

STATE ex rel. LAMAR, Attorney General, v. JOHNSON.

Florida Supreme Court

December 28, 1892

Mandamus by the state, on the relation of W. B. Lamar, attorney general, against James E. Johnson to compel defendant to deliver to Edmund W. Gillen, as tax collector for Duval county, the office of county tax collector of said county and all the property, books, and papers belonging to the same. Peremptory writ awarded.

The order of removal appears in the former opinion in this cause. 11 South. Rep. 845. The governor's notification to Johnson of the cause of suspension is as follows:

'State of Florida, executive department. Tallahassee, Fla., Oct 29, 1892. James E. Johnson, Esq., Jacksonville, Fla.--Sir Upon my return to the capitol I find the letters, affidavits, and arguments of counsel in your behalf, all of which have been duly considered. There is no room for doubt that the constitution places in the hands of the executive the power to suspend all officers that have been appointed or elected, who are not liable to impeachment, without reference to when the legislature may meet, the adjournment of the next session of the senate terminating the period of suspension, unless the senate should remove the officer so suspended. This authority involves, as well, a duty on the part of the executive to exercise such power whenever he finds that an officer is guilty of conduct which brings his case within the constitutional grounds set forth for which suspension may be made. Twelve persons, to wit, Messrs. Porcher L'Engle, I. L. Harris, G. E. Wilson, D. E. Thompson, R. F. Bowden, J. A. Peterson, F. F. L'Engle, G. Muller, Uriah Bowden, T. H. Livingston, E. W. Gillen, and Claude L'Engle, make affidavit that, when Mr. Porcher L'Engle made you the tender of money to pay the poll taxes for a large number of persons, he demanded that you receive the list of names and the money, and make out receipts at your leisure, and send them to the parties whose poll tax was thus attempted to be paid, only insisting that such receipts be dated as of September 3, A. D. 1892. Messrs. Porcher L'Engle, George E. Wilson, F. F. L'Engle, D. E. Thompson, Claude L'Engle, T. H. Livingston, Isaac L. Harris, Uriah Bowden, and R. F. Bowden add, in further affidavits, that Mr. L'Engle did not request you to give or send such receipts to him. Messrs. P. B. Bedford, William H. McCurdy, M. Johnson, R. C. Scott, Pleasant A. Holt, and John Price make affidavit that, in making the tender, Mr. L'Engle demanded that the receipts be delivered to him; but they differ otherwise as to the demand for the receipts. Mr. P. B. Bedford says that Mr. L'Engle stated: 'I want their receipts to-day.' Messrs. Johnson, Holt, and McCurdy say that Mr. L'Engle demanded the receipts be issued or delivered to him, dated that day; and Mr. Scott says that Mr. L'Engle demanded that the receipts be made out 'when he [you] could do so,' whether that day or not, and when issued they should be dated September 3. Mr. Price qualifies his testimony as follows: 'I could not pretend to report the exact words used by Mr. L'Engle; but the impression made upon my mind was that he demanded that the receipts, when issued, be dated that day, and, when the receipts were issued, be delivered to him.' Nearly all state, in substance, that there was considerable noise and confusion at the time. On this point Mr. Joseph A. Jackson says there was so much disorder and noise in the room that it would be difficult for any person to tell exactly what other persons were saying. While the testimony on this point is somewhat conflicting, the decided weight of testimony is that the tender was not coupled with the demand that the receipts be delivered to Mr. L'Engle, besides which it is not reasonable to suppose that Mr. L'Engle would have made such demand, in the light of my instructions to you, of which he was advised. Nor does it any where appear that you offered to accept the taxes and send the receipts to the persons for whom paid, or that your refusal to receive the poll taxes so tendered you was based upon the demand of Mr. L'Engle that the receipts be delivered to him; but the ground upon which you refused was, as you stated, that your office was closed, and would not be open again till 9 o'clock Monday morning. I cannot accept as a sufficient excuse for your refusal to receive the poll taxes tendered that some persons on the list were dead or not liable to pay a poll tax, (this you could not know at the time,) or that you did not have time on that day to examine the assessments, or to see from whom poll taxes were due. It is not denied that the poll taxes were due from a large majority of those on the list. There remained still more than eleven hours of the time within which the poll taxes might be paid to enable persons to vote at the state election, whereby a large number would have qualified, even if it were true that you could not properly continue such examination after that date. The facts are that, notwithstanding you had good reason to know that a large number of the citizens of your county had not paid their poll taxes, and that the time within which such poll taxes could be paid, to enable them to vote at the state election, would soon terminate, you unreasonably restricted your office hours to three hours a day, continuing such restrictions up to and on the last day when the payment of a poll tax would enable a person to vote at the state election, well knowing that a large number of persons would thereby be disfranchised. On such day, a few minutes after 12 o'clock, and more than eleven hours prior to the expiration of the time limited by law, a tender of the poll tax was made to you at your office for a large number of the citizens of your county, which you refused to receive, whereby they were denied the right of suffrage,--one among the highest rights and privileges of an American citizen. This by an officer of the state, and himself a candidate for re-election. Such conduct constitutes gross neglect of duty in office, for which you are suspended by executive order, herewith inclosed. Respectfully, F. P. FLEMING, Governor.'

The other facts are stated in the opinion.

Syllabus by the Court

SYLLABUS

1. Under the statute regulating the payment of poll taxes since June 12, 1892, a tax collector has no right to refuse to receive such taxes when tendered by a party on behalf of others from whom they are due, although the person making the tender is not authorized by the other persons to pay the same; and the refusal of a tax collector to receive poll taxes so tendered is within the grounds for which a governor may, under section 15, art. 4, of the constitution, suspend an officer.

2. The comptroller, under the power implied by the provisions of section 363, Rev. St., that tax collectors shall pursue the instructions which from time to time may be transmitted to them by him, may give any reasonable instruction for carrying out the law as it is, but cannot give collectors any power which the law does not give them.

3. Should, as is claimed by the answer and admitted by the demurrer in this case, the governor instruct a tax collector, who is subject to suspension by him, to pursue a stated course of action in the performance of an official duty, involving private rights, and the comptroller advise such officer to pursue a contrary course, and the tax collector pursue the latter course, and the governor suspend him for doing so, and the courts find that the course advised by the governor was that prescribed by law, and that claimed to have been advised by the comptroller contrary to law, and that such violation of law was within the grounds for which the governor is authorized to suspend such officer, they could not review the action of the governor in making the suspension. The power of review is in the senate alone. The same would also be true if both the attorney general and comptroller had advised such contrary course.

4. Where a governor, acting on a case which is within his constitutional power, has suspended an officer, questions such as the reasonableness of the office hours of the officer suspended, and the bona fides of a person making the tender of payment of poll taxes, for refusing which the officer was suspended, are entirely within the exclusive jurisdiction of the governor and senate, and cannot be considered by the courts.

COUNSEL

William B. Lamar, Atty. Gen., for plaintiff.

J. M. Barrs and A. W. Cockrell & Son, for defendant.

OPINION

RANEY C.J.

The defendant has filed an answer which is demurred to by the state, through the attorney general, as insufficient in law. Upon the law of the case as it has been settled by the former opinion, (11 South. Rep. 845,) there is but one inquiry which this court can now make, and that is whether or not the act for which the alleged suspension was made is, as matter of law, a ground for removal, within the grant of power made to the governor. It is admitted on all sides that the courts cannot inquire into the sufficiency or insufficiency of the evidence to prove that the defendant did or did not do what he is charged to have done, and has been suspended for doing if the charge is, in its nature, one for which the constitution authorizes suspension; and this principle removes from our consideration a large portion of the record. We have, of course, decided that what is stated in the order of suspension is at least neglect of official duty. The cause of suspension communicated to the defendant by the governor under date of October 29th of this year is clearly the same as that stated in the order of suspension of like date. So, whatever may be the power of the court where the causes communicated did not, in judgment of...