State v. Philips

• Decision Date: 14 November 1892
• Citation: 11 So. 922,30 Fla. 579
• Court: Florida Supreme Court
• Parties: STATE ex rel. ATTORNEY GENERAL v. PHILIPS.

11 So. 922

30 Fla. 579

STATE ex rel. ATTORNEY GENERAL v. PHILIPS.

Florida Supreme Court

November 14, 1892

Quo warranto proceedings by the state, on the relation of the attorney general, against Ansel B. Philips, to decide by what right respondent exercised the functions of municipal judge of the city of St. Augustine. To the answer of respondent the relator demurred. Demurrer sustained.

Syllabus by the Court

SYLLABUS

1. An allegation, in an information in proceedings by quo warranto in behalf of the attorney general, that the respondent uses enjoys, and performs the functions of a public office without warrant or authority of law, charges usurpation of said office, and is sufficient to require him to show by what right or authority he exercises or performs the functions thereof; and, as against the state, he must show a complete and perfect right.

2. The office of municipal judge of the city of St. Augustine, under the charter of said city, is filled by election by the city council of said city; and, before entering upon the duties of said office, the person elected thereto is required to take the oath of office. In answer to an information, on behalf of the attorney general, charging respondent with usurpation of said office, he set up an election, alone, as a defense. Held to be insufficient, as against the state, in not showing that all the requisites prescribed by law to entitle one to take possession of said office had been complied with.

3. The term of office of municipal judge, under the charter of the city of St. Augustine, is two years, and the power to fill vacancies that may occur in said office devolves upon the city council by election; but, when the city council elects an eligible person to a vacancy that has happened in said office, the person so elected is entitled to hold said office for the unexpired portion of the two-year term that has become vacant.

4. The amendment of the charter of the city of St. Augustine passed in 1891, being chapter 4091, does not change the term of office or the time of election of municipal judge under the original charter of said city.

5. Though a respondent fail to exhibit a clear right to exercise the functions of a public office in answer to an information in quo warranto proceedings instituted by the attorney general against him, to show by what authority he performs the duties of said office, yet a third person will not be let into the office, where the information fails to allege that he is entitled to the same.

COUNSEL

William B. Lamar, Atty. Gen., and William MacWilliams, for relator.

Ansel B. Philips, in pro. per.

OPINION

The other facts fully appear in the following statement by MABRY J.:

The proceeding here is in quo warranto, on the information of the attorney general, filed in this court on the 6th day of July, A. D. 1892, on behalf of the people of the state of Florida, and against A. B. Philips.

It is alleged in the information that A. B. Philips, for the space of 13 days last past, had used, enjoyed, exercised, and performed, and still does use, enjoy, exercise, and perform without warrant or authority, in violation of the charter of the city of St. Augustine and the statutes of the state of Florida, the franchise, functions, and powers of the office of municipal judge of the said city of St. Augustine, in said state.

It is further alleged that the city council of the said city of St. Augustine, in council assembled, in compliance with the provisions of the charter, (chapter 3972, Laws Fla.,) at its second regular meeting after the election in June, 1891, said election being held for the purpose of electing a mayor and five aldermen for said city, elected, among other officers for said city, M. R. Cooper, to the office of municipal judge, to hold for two years from June, A. D. 1891; that said M. R. Cooper resigned his said office as municipal judge, his resignation to take effect January 1, A. D. 1892, which was duly accepted by the said city council, and said council, at its last regular meeting in December, A. D. 1891, proceeded to fill the vacancy in said office of municipal judge, caused by said resignation, and thereupon duly elected W. A. MacWilliams to the said office of municipal judge of the said city of St. Augustine, to fill the unexpired term of the said M. R. Cooper, to wit, to June, A. D. 1893, as will appear by a certified copy of an abstract of the proceedings of said city council, and the official paper writing sent to said MacWilliams by the clerk of the said city of St. Augustine under the seal of said city, which are made exhibits to the information.

Further, that said city council, at its second regular meeting after the election of June, A. D. 1892, said election being held for the purpose of electing four aldermen for the said city of St. Augustine, elected, in compliance with the amendment to the charter of said city, (chapter 4091, Laws Fla.,) certain persons to fill certain offices for the said city, and did further attempt to elect A. B. Philips, defendant herein, to the office of municipal judge of the said city of St. Augustine, as will appear by a certified copy of an abstract of the proceedings of the said city council, attached hereto as Exhibit C, while the term to which said W. A. MacWilliams had been elected had not expired, and will not expire until June, 1893, the time of holding the next regular election to fill the office of municipal judge, as prescribed by the said charter of the said city of St. Augustine; and it is alleged that the said A. B. Philips, during all the time aforesaid, has usurped, and still does usurp, the said franchise, functions, and powers of the said office of municipal judge of the said city of St. Augustine, to the great damage and prejudice of the people of the state of Florida.

The information concludes as follows: 'Whereupon the said attorney general prays advice of this court in the premises, and due process of law against the said A. B. Philips in this behalf, to answer the said people by what warrant or authority he claims to use, enjoy, exercise, and perform the franchise, functions, and powers aforesaid, and that, upon his failure thereof, a judgment of ouster be entered against the said A. B. Philips, and that in said judgment the said W. A. MacWilliams be restored to the said office of municipal judge of the said city of St. Augustine, Fla.'

The record of the proceedings in reference to the election of W. A. MacWilliams, attached as an exhibit to the information, is as follows: 'Alderman Ingraham moved that the board go into the election of municipal judge, to fill the vacancy caused by M. R. Cooper, resigned. Ald. Arnau nominated W. A. MacWilliams, Esqr. Ald. Ingraham nominated G. A. Crocker, Esqr. Nominations being then closed, the clerk called the roll, with the following result: For W. A. MacWilliams: Aldermen Arnau, Colee, Iwanowski, Pacetti, and Papino--5. For G. A. Crocker: President Philips, Ald. Masters and Ingraham--3. Mr. MacWilliams having received a majority vote, he was declared duly elected municipaljudge.'

The notification sent W. A. MacWilliams of his election is as follows:

'St. Augustine, Fla., Dec. 30th, '91. Hon. W. A. MacWilliams--Dear Sir: At a regular meeting of the city council held on the 29th day of December, 1891, you were duly elected municipal judge of the city of St. Augustine, to serve the unexpired term of M. R. Cooper, resigned. J. A. USINA, City Clerk. [Seal.]'

The record in reference to the election of A. B. Philips is as follows: 'On motion of Alderman Masters, the board went into the election of city officers. On the call of the roll, A. B. Philips received eight (8) votes for municipal judge.' This action of the city council is certified to have taken place June 22, A. D. 1892.

The answer of Ansel B. Philips is, in substance, as follows: He admits that the extracts from minutes of the council of said city, copies of which are attached to the information, are correct; but he says the notification by the city clerk to W. A. MacWilliams that he was elected municipal judge to serve the unexpired term of M. R. Cooper, resigned, was, as to such alleged term, a mistake of the city clerk, and not sustained by the action or minutes of the council. He alleges that he was elected municipal judge of said city, as shown by the minutes of said council, and was officially notified of his election, as appears by a copy of the same, attached as Exhibit A. It is admitted that M. R. Cooper was elected municipal judge, and resigned, as alleged in the information. He alleges that the city council of said city, on the 29th day of December, 1891, attempted to elect or appoint said MacWilliams to the office of municipal judge; that under section 5, art. 4, c. 3972, Laws Fla., if the election or appointment to fill such vacancy was valid at all, it could only be until the next annual election; that the next annual election of councilmen, after said attempted appointment of said MacWilliams, was on the second Tuesday in June, A. D. 1892, and the next annual election of officers elected by the council after said attempted appointment or election of MacWilliams to fill said vacancy was on the 22d day of June, 1892; and it is alleged that the election or appointment of MacWilliams, as aforesaid, if valid, did not extend to anything beyond the said annual elections, or either of them, and that said respondent, Philips, was lawfully elected to succeed him, and so holds said office.

It is also alleged that under section 6, c. 4091, Laws Fla 'an election was required to be held at the second regular meeting of said council, in the next June thereafter, for all the officers named in said section, and an election for a municipal judge...