State v. Sheats

• Citation: 78 Fla. 583,83 So. 508
• Parties: STATE ex rel. HOLLOWAY v. SHEATS, State Superintendent of Public Instruction.
• Decision Date: 11 December 1919
• Court: United States State Supreme Court of Florida

83 So. 508

78 Fla. 583

STATE ex rel. HOLLOWAY v. SHEATS, State Superintendent of Public Instruction.

Florida Supreme Court

December 11, 1919

Proceedings for mandamus by the State, on the relation of W. M. Holloway against William N. Sheats, State Superintendent of Public Instruction. On demurrer to alternative writ. Demurrer sustained.

Syllabus by the Court

SYLLABUS

The term 'office' implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an 'employment' does not comprehend a delegation of any part of the sovereign authority.

An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed independent authority of a governmental nature; and this constitutes perhaps the most decisive difference between an employment and an office, and between an employé and an officer.

Some offices are merely clerical or ministerial; but they are useful in enforcing the powers conferred on other officers or tribunals, and they are usually designated as offices by the law, and have features of tenure and duration and of duties prescribed by law, which differentiate an office from a mere employment.

The intent of a valid statute is the controlling law; and such intent is presumed to accord with organic law.

Unless offices are created there can be no officers.

The 'positions' of 'rural school inspectors' 'created' by chapter 6539, Acts of 1913, are, in view of the duties assigned to such inspectors, employments and not offices. As no part of the sovereign power of the state is delegated to the rural school inspectors authorized to be appointed by said statute, such inspectors are not officers but employés; and, as the provisions of the Constitution relative to the appointment and salaries of officers are not applicable to employés, the provisions of the statute authorizing the appointment of rural school inspectors, and providing the method of paying their salaries, must be observed.

COUNSEL W. J. Oven, of Tallahassee, for relator.

Glenn Terrell, of Tallahassee, and George T. Morgan, of Pensacola for respondent.

OPINION

WHITFIELD J.

The alternative writ of mandamus issued herein alleges in effect that the relator was appointed rural school inspector by the Governor, under chapter 6539, Acts of 1913, without the nomination of the state superintendent of education, as required by the mentioned statute; that the duties of rural school inspector were performed for a stated time by the relator, and that the respondent declines to make requisitions upon the comptroller for payment of the salary and traveling expenses of relator as rural school inspector in accordance with the requirements of the statute. The command is that the respondent do make requisitions upon the comptroller for the payment of the salary and traveling expenses of the relator, or show cause for not doing so.

The respondent demurred to the alternative writ on the grounds that the statute does not create any office, but provides for the employment of rural school inspectors, and that the statute has not been complied with in the employment of the relator. A return to the alternative writ was also filed. Relator moved to strike portions of the return, and also moved to quash the return. The statute to be considered is as follows:

'Chapter 6539 (No. 119).

'An act providing for the betterment of the rural schools by creating rural school inspectors and prescribing their duties and making appropriation for their compensation and expenses.

'Be it enacted by the Legislature of the state of Florida:

'Section 1. Two rural school inspectors are hereby created by this act who shall be appointed by the Governor upon the nomination of the state superintendent of public instruction and shall hold their positions subject to the state board of education. It shall be the duty of each of these inspectors to devote all of his time and attention to the work of visiting and supervising rural schools, and shall perform such educational work, when the rural schools are not in operation, as may be required of them by the state board of education, and shall work under the direction and advice of the state superintendent of public instruction to whom reports shall be made as required. The sum of two thousand dollars ($2,000.00), for the salary of each is hereby appropriated and twelve hundred and fifty dollars ($1,250.00), for the traveling expenses of each, out of any funds in the state treasury not otherwise appropriated, for each of the two years beginning July 1, 1913 and 1914, which shall be paid in monthly installments upon the requisition of the state superintendent of public instruction upon the comptroller of the state.

'Sec. 2. All laws and parts of laws in conflict with this act are hereby repealed.

'Sec. 3. This act shall take effect immediately upon its passage and approval by the Governor.

'Approved June 5, 1913.'

Chapter 6539, Acts of 1913.

The Constitution contains the following provisions with reference to officers:

'The Legislature shall provide for the election by the people or appointment by the Governor of all state and county officers not otherwise provided for by this Constitution, and fix by law their duties and compensation.' Section 27, art. 3, Constitution of 1885.

'Each and every officer of this state, including the members of the Legislature, shall before entering upon the discharge of his official duties take the following oath of office: 'I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and government of the United States and of the state of Florida; that I am duly qualified to hold office under the Constitution of the state, and that I will well and faithfully perform the duties of ----- on which I am now about to enter. So help me God.” Section 2, art. 16, Constitution.

'The salary of each officer shall be payable quarterly upon his own requisition.' Section 3, art. 16, Constitution.

'The Legislature shall not create any office, the term of which shall be longer than four years.' Section 7, art. 16, Constitution.

'When any office, from any cause, becomes vacant, and no mode is provided by this Constitution or by the laws of the state for filling such vacancy, the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term.' Section 7, art. 4, Constitution.

'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 office the incumbent of which has been suspended. No officer suspended who shall under this section resume the duties of his office, shall suffer any loss of salary or...