Tappy v. State ex rel. Byington

• Decision Date: 08 July 1955
• Citation: 82 So.2d 161
• Parties: Thomas N. TAPPY, Appellant, v. STATE of Florida, by Richard W. Ervin, as Attorney General of said State, onthe Relation of John S. BYINGTON, Relator, Appellee.
• Court: Florida Supreme Court

Page 161

82 So.2d 161

Thomas N. TAPPY, Appellant, v. STATE of Florida, by Richard W. Ervin, as Attorney General of said State, onthe Relation of John S. BYINGTON, Relator, Appellee.

Supreme Court of Florida, En Banc.

July 8, 1955.

Rehearing Denied Sept. 12, 1955.

Bedell & Bedell, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., Howard S. Bailey and Fred M. Burns, Asst. Attys. Gen., Thomas T. Cobb, Melvin Orfinger and Frank L. Byle, Daytona Beach, for appellee.

SEBRING, Justice.

The Attorney General of Florida, on the relation of John S. Byington, brought this quo warranto proceeding to determine whether or not the appellant, Thomas N. Tappy, was entitled to hold the office of county judge of Volusia County, Florida. The information in the cause was filed on January 27, 1955. On the return day Tappy moved to quash the information and with said motion filed his answer. Tappy's motion to quash the information was denied and on motion of Byington for the entry of a final judgment of ouster notwithstanding the answer a judgment of ouster was entered. Tappy has appealed from the judgment.

The information upon which the judgment was entered contained, in substance, the following averments: The Honorable Dan McCarty, then Governor of Florida, died on September 30, 1953. Upon his death, the powers and duties of the office of Governor devolved upon The Honorable Charley Johns, then holding the office of President of the Florida Senate, until the installation in said office of Governor LeRoy Collins, who had been elected to the office at the 1954 general election, for the unexpired portion of the regular term to which the late Governor McCarty had been elected, to wit, for the part of said term beginning January 4, 1955, and ending the first Tuesday after the first Monday in January, 1957.

At the 1952 general election Honorable Robert H. Wingfield was elected County Judge of Volusia County for the four-year term beginning on the first Tuesday after the first Monday in January, 1953. While holding this office, Judge Wingfield was elected, at the 1954 general election, to the office of Circuit Judge for the Seventh Judicial Circuit of Florida for the regular 6-year term beginning on Tuesday, January 4, 1955.

Prior to December 30, 1954, Judge Wingfield duly qualified for the office of circuit judge and thereupon received his commission; and in a letter to Acting Governor Johns, dated December 30, 1954, (stamped as received in the Governor's office on Monday, January 3, 1955) he notified the Acting Governor that he was resigning his office of County Judge to take effect 'as of midnight on (Monday) January 3, 1955.' Thereafter, on January 3, 1955, said letter of resignation was filed in the office of the Secretary of State with the endorsement thereon by Acting Governor Johns that he had accepted the resignation.

Meanwhile, by letter dated December 28, 1954, Acting Governor Johns notified the Secretary of State that he had, as of said date, appointed the appellant, 'Thomas N. Tappy, Colunty Judge of Volusia County, to succeed Robert H. Wingfield, until the first Tuesday after the first Monday in January, 1957, to fill vacancy created by election and qualification of Robert H. Wingfield, to office of Circuit Judge, Seventh Judicial Circuit,' and requested of the Secretary of State that he 'prepare the necessary papers and forward the same to' the appellant. As appears from a notation on this letter, the letter was received in the office of the Secretary of State on December 30, 1954, and the 'necessary papers' were immediately sent to the appellant.

On Monday, January 3, 1955, Tappy filed in the office of the Secretary of State his oath of office as said county judge, and a bond, dated January 4, 1955, in the principal amount of $5,000, executed by Tappy as principal and Continental Casualty Company as surety, conditioned that he, Tappy, would faithfully perform the duties of the office. Endorsed on the bond was a notation by the Comptroller of Florida, 'Approved as to surety and amount, Jan. 3, 1955, C. M. Gay, Comptroller. Attention is called to the fact that the bond has not been approved by County Commissioners.'

On January 3, 1955, there was issued to Tappy a commission signed by Charley E. Johns, as Acting Governor of Florida, and attested by R. A. Gray as Secretary of State, reciting his appointment as County Judge of Volusia County for the period from midnight of Monday, January 3, 1955, to the first Tuesday after the first Monday in January, 1957. Thereafter, on January 18, 1955, Tappy filed in the office of the Secretary of State another bond dated January 4, 1955, which bore the notation 'Duplicate' and was stamped 'Jan. 3, 1955, Secretary of State, Tallahassee, Fla.' This bond bore the written approval of the Chairman and members of the Board of County Commissioners of Volusia County, and of C. M. Gay, Comptroller of the State of Florida.

After Governor Collins took office on Tuesday, January 4, 1955, he notified the Secretary of State, in writing, dated January 10, 1955, that he had, as of January 10, 1955, appointed 'John S. Byington, County Judge of Volusia County, succeeding Robert H. Wingfield, until the first Tuesday after the first Monday in January, 1957, to fill the vacancy created by the election and qualification of Robert H. Wingfield to the office of Circuit Judge of the Seventh Judicial Circuit.' Accompanying the notification was a letter directed to the Secretary of State in which Governor Collins took notice of the prior appointment of Tappy by Acting Governor Johns, and stated, with reference thereto, as follows: 'I take the position that the said office of County Judge has remained and is now vacant notwithstanding the purported appointment and commission issued by the Acting Governor to Mr. Tappy, because (1) of the want of authority in the Acting Governor to fill a vacancy commencing during or concurrent with the commencement of my term of office; and (2) due to the fact that the official bond of the said Thomas N. Tappy was not approved by the Board of County Commissioners for Volusia County, Florida, as required by Section 7, Article VIII, of the State Constitution (F.S.A.), prior to the issuance of the commission to him by the Acting Governor.'

On January 17, 1955, John S. Byington filed in the office of the Secretary of State his oath of office as County Judge of Volusia County, a loyalty oath executed pursuant to the provisions of Section 876.05 to 876.10, Florida Statutes, F.S.A., and a properly executed surety bond in the principal amount of $5,000, dated January 13, 1955, upon which was endorsed the written approval of the State Comptroller and the Board of County Commissioners of Volusia County. On the same day a commission was issued to John S. Byington reciting his appointment to the office as of January 17, 1955.

Upon these allegations of the information it was charged by the Attorney General that the commission issued to Tappy by Acting Governor Johns was invalid and of no effect, and vested no right in Tappy to the office of County Judge for the period stated therein, for the reasons: '(a) that no vacancy existed in the said office of County Judge until (Tuesday) January 4, 1955; that the exercise of the powers and discharge of the duties of the office of Governor by Acting Governor Johns terminated on January 4, 1955, upon installation to, and assumption of duties by, Governor Collins of that office; that while Governor Collins was not installed in, and did not assume the duties of his said office until approximately noon, January 4, 1955, the official unexpired term to which he was elected commenced immediately after midnight, January 3, 1955; that the vacancy in said office of County Judge and the term of office of Governor Collins commenced simulataneously, and the power to fill said vacancy was not vested in Acting Governor Johns but was vested in Governor Collins.

'(b) That said commission issued to (Tappy) notwithstanding that the said bond filed by him had not been approved by the County Commissioners of Volusia County, Florida, and in violation of the provisions in Article VIII, Section 7, Florida Constitution, to the effect that no Commission shall issue to any county officer until he shall have filed with the Secretary of State a bond, as required, 'approved by County Commissioners of the county in which such officer resides, and by the Comptroller.''

The answer filed by Tappy to the information in the cause admitted virtually all of the facts set forth in the information but denied the legal effect thereof so far as they pertained to his right to hold the office, and averred, with respect to his failure to secure the approval of the County Commissioners of his official bond until after Governor Collins had appointed Byington, 'that on Wednesday, December 29, 1954, in the absence of (the) Chairman of the Board of County Commissioners, (he, Tappy,) requested (the) vice chairman of said board to call a special meeting * * * for the purpose of approving (his) bond as County Judge and the said * * * vice chairman promised and agreed to call such a meeting for that purpose to be held on Friday, December 31, 1954. On Thursday, December 30, 1954, the * * * vice chairman informed (Tappy) that there would be no meeting for the purpose of approving (the) bond for the reason that the County Attorney * * * had advised the County Commissioners that there was no vacancy in the office of the County Judge and no legal requirement for holding a meeting for the purpose of approving such a bond. Respondent (Tappy) therefore had his bond in the sum of $5,000, which had already been executed by (him) and by a surety company duly qualified and authorized to do a surety business in the State of Florida and in Volusia County, approved by the * * * Comptroller, and filed the same in the office of the Secretary of State without approval at that time by the...