State v. Joughin

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation138 So. 392,103 Fla. 877
Decision Date12 December 1931
PartiesSTATE ex rel. HATTON v. JOUGHIN.

138 So. 392

103 Fla. 877

STATE ex rel. HATTON
v.
JOUGHIN.

Florida Supreme Court

December 12, 1931


Original proceeding in quo warranto by the State of Florida, on the relation of L. M. Hatton, Jr., against Robert T. Joughin. On demurrer to the respondent's return and on motion for judgment of ouster.

Demurrer overruled, and motion denied.

BROWN, J., dissenting. [138 So. 393]

COUNSEL [138 So. 394]

[103 Fla. 878] Dickenson & Lake, of Tampa, and Haller & Pepper, of Tallahassee, for relator.

Charles F. Blake, P. O. Knight, Sutton, Tillman & Reeves, and Pat Whitaker, all of Tampa, for respondent.

OPINION

PER CURIAM.

This proceeding in quo warranto was instituted by relator, L. M. Hatton, Jr., to test the right of respondent, Robert T. Joughin, to exercise the title, privileges, and franchises of the office of sheriff of Hillsborough county, Fla. The respondent in due course filed his return to the writ, in which he denied any claim or right on the part of relator to hold or exercise title to said office, and asserted that he was holding it by virtue of a lawful and valid commission issued to him by the Governor of the state of Florida. The cause now comes on to be heard on the demurrer of relator to respondent's return and his motion for judgment of ouster.

[103 Fla. 879] The writ and the return thereto disclose that L. M. Hatton Jr., was duly elected sheriff of Hillsborough county at the general election held in November, 1928; that he was commissioned by the Governor as such sheriff for the four-year term beginning in January, 1929; that on October 3, 1929, the Governor, by virtue of section 15 of article 4 of the Constitution, promulgated his executive order suspending the said L. M. Hatton, Jr., from said office for misfeasance, malfeasance, neglect of duty, drunkenness, and incompetency in office; and that on October 5, 1929, the Governor appointed and commissioned the respondent, Robert T. Joughin, as sheriff of Hillsborough county pending the suspension of L. M. Hatton, Jr.

The first question raised by the demurrer to the return is whether or not this court is empowered to or will review the executive order of the Governor suspending the relator from the office of sheriff of Hillsborough county.

The executive order of the Governor was predicated on section 15 of article 4 of the Constitution, the pertinent part of which 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 Governor, be removed; but the Governor may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against him are untrue. If the Senate shall refuse to remove, or fail to take action before its adjournment, the officer suspended shall resume the duties of the office. The Governor shall have power to fill by appointment any [103 Fla. 880] office, the incumbent of which has been suspended. * * *'

The power vested in the Governor to suspend an officer under this section of the Constitution is executive. Owens v. Bond, 83 Fla. 495, 91 So. 686. It is in no sense judicial or quasi judicial. It involves judgment and discretion on the part of the Governor, including the power to hear and decide; and, while the rule seems well settled that so long as the Governor acts within his jurisdiction as charted by organic law, his action will not be reviewed by the courts. State ex rel. Holland v. Ledwith, 14 Fla. 220; State ex rel. Attorney General v. Johnson, 30 Fla. 499, 11 So 855; People ex rel. Johnson v. Coffey, 237 Mich. 591, 213 N.W. 460, 52 A. L. R. 1; In re Guden, 171 N.Y. 529, 64 N.E. 451; 12 R. C. L. 1008, 1010. This general rule, however, is modified by the exception that such exercise of power being that affecting the lawful rights of individuals, the jurisdictional facts, in other words the matters and things on which the executive grounds his cause of removal, [138 So. 395] may be inquired into by the courts. State ex rel. Attorney General v. Johnson, 30 Fla. 433, 439, 11 So. 845, 18 L. R. A. 410; State ex rel. Bridges v. Henry, 60 Fla. 246, 53 So. 742.

In State ex rel. Bridges v. Henry, supra, this court held that the jurisdictional facts on which a removal from office under section 15 of article 4 of the Constitution was accomplished might be inquired into by quo warranto. In fact, when the title to office is involved, quo warranto is the usual method of attack, though a like result may be reached in some cases by mandamus, as in State ex rel. Attorney General v. Johnson, supra, where the appointee proceeded against the suspended officer to require him to turn over the books and office equipment. Mandamus, being a collateral attack on the title to office, may be supported by liberal or general statements of causes for removal; while quo warranto, being a direct attack, must be predicated on direct and positive statements of legal facts supporting the [103 Fla. 881] cause of removal. The scope of the two proceedings being fraught with marked differences, decisions based on them should be considered in the light of these differences.

The second and third assignments of error present the question of whether or not, in his suspension from office, the relator was deprived of any right guaranteed him under section 15 of article 4 of the Constitution.

One's right to office and the emoluments thereof is protected by the Fourteenth Amendment. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. Relator's right to exercise and enjoy the office of sheriff of Hillsborough county is a species of property which the law will protect and will also redress if he is wrongly deprived of it; yet he must bear in mind that he, as well as every other officer appointed or elected in this state who is not subject to impeachment, accepts his appointment or election subject to suspension by the Governor for the causes enumerated in section 15 of article 4 of the Constitution.

Under section 15 of article 4, Constitution of Florida, officers may be suspended from office by the Governor for malfeasance, misfeasance, neglect of duty in office, the commission of a felony, for drunkenness, or incompetency, and, if the Senate advises and consents to such suspension at its next session, the officer is removed. It therefore takes the joint action of the Governor and the Senate to remove an officer; the action of the Governor being limited to suspension. The power of removal being executive and in no sense judicial, the courts will not interfere with the executive or the Senate in the performance of this function. When, however, the function has been exercised as in this case, it by no means follows that the power of the courts may not be invoked to determine which of two commissioned claimants has the legal right to exercise and enjoy the title to the office brought in question.

But the relator contends that he was not given a hearing [103 Fla. 882] and an opportunity to disprove the charges against him, nor were the causes of his suspension communicated to him as contemplated by section 15 of article 4 of the Constitution.

The record discloses that, prior to his suspension, the Governor summoned the relator before him and reviewed the charges against him; that the order of suspension was served on relator October 4, 1929, and transmitted to the Senate with supporting affidavits April 9, 1930; that a committee was appointed from the Senate which considered the grounds of such suspension, took testimony, heard relator in person, and by counsel in his defense, and furnished him a copy of all proceedings had before said committee, after which the committee made its report to the Senate, which, in executive session on April 28, 1930, advised and consented to the removal of relator from office.

We think this procedure on the part of the executive and the Senate met every requirement of the Constitution. The relator had no constitutional right to a notice and hearing of the charges against him prior to suspension. State ex rel. Attorney General v. Johnson, 30 Fla. 433, 11 So. 845, 18 L. R. A. 410. The Governor may, after suspension, reinstate the officer suspended on satisfactory evidence that the charge or charges against him are untrue; but this fact the Governor may determine in any way that may seem to him just and proper. This provision does not contemplate a second hearing and examination of the charges, unless...

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31 practice notes
  • Patten v. Miller, Nos. 13218, 13217.
    • United States
    • Supreme Court of Georgia
    • April 10, 1940
    ...197 S.E. 225; State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 92 A.L.R. 988, annotation, 998; State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392; Id., 107 Fla. 850, 145 So. 174; Village of Kendrick v. Nelson, 13 Idaho 244, 89 P. 755, 12 Ann.Cas. 993; State ex rel. Nagle ......
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...right in his office and the emoluments therefrom. State ex rel. v. Sheppard, 192 Mo. 497, 91 S.W. 481; State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392, rehearing denied, 107 Fla. 850, 145 So. 174. The aforesaid provisions of the State and Federal Constitutions are designated to e......
  • Chamski v. Cowan, No. 76.
    • United States
    • Supreme Court of Michigan
    • March 9, 1939
    ...senate power of removal without cause, even though the sheriff was appointed for a fixed term. See, also, State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392. In People ex rel. Brundage v. Hansen, 234 Ill.App. 483, it was held that a statute providing ‘the appointive members of said ......
  • State ex rel. Nagle v. Sullivan, No. 7364.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 18, 1935
    ...Other cases take the opposite view. State v. Sanchez, 32 N. M. 265, 255 P. 1077, and cases therein cited; State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392;State ex rel. Kennedy v. McGarry, 21 Wis. 502. In most of the cases holding that notice and hearing are essential, the statute......
  • Request a trial to view additional results
31 cases
  • Patten v. Miller, Nos. 13218, 13217.
    • United States
    • Supreme Court of Georgia
    • April 10, 1940
    ...197 S.E. 225; State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 92 A.L.R. 988, annotation, 998; State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392; Id., 107 Fla. 850, 145 So. 174; Village of Kendrick v. Nelson, 13 Idaho 244, 89 P. 755, 12 Ann.Cas. 993; State ex rel. Nagle ......
  • State ex Inf. McKittrick v. Williams, No. 36718.
    • United States
    • United States State Supreme Court of Missouri
    • November 9, 1940
    ...right in his office and the emoluments therefrom. State ex rel. v. Sheppard, 192 Mo. 497, 91 S.W. 481; State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392, rehearing denied, 107 Fla. 850, 145 So. 174. The aforesaid provisions of the State and Federal Constitutions are designated to e......
  • Chamski v. Cowan, No. 76.
    • United States
    • Supreme Court of Michigan
    • March 9, 1939
    ...senate power of removal without cause, even though the sheriff was appointed for a fixed term. See, also, State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392. In People ex rel. Brundage v. Hansen, 234 Ill.App. 483, it was held that a statute providing ‘the appointive members of said ......
  • State ex rel. Nagle v. Sullivan, No. 7364.
    • United States
    • Montana United States State Supreme Court of Montana
    • February 18, 1935
    ...Other cases take the opposite view. State v. Sanchez, 32 N. M. 265, 255 P. 1077, and cases therein cited; State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392;State ex rel. Kennedy v. McGarry, 21 Wis. 502. In most of the cases holding that notice and hearing are essential, the statute......
  • Request a trial to view additional results

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