La Tour v. Stone

• Citation: 190 So. 704,139 Fla. 681
• Parties: LA TOUR v. STONE, Sheriff.
• Decision Date: 01 August 1939
• Court: United States State Supreme Court of Florida

190 So. 704

139 Fla. 681

LA TOUR v. STONE, Sheriff.

Florida Supreme Court, Division A.

August 1, 1939

Original proceeding by John A. La Tour for a writ of habeas corpus to procure his release from the custody of S.E. Stone, Sheriff of Volusia County. On motion to quash the return and discharge petitioner.

Motion denied, and petitioner remanded.

COUNSEL

William W. Judge, of Daytona Beach, and Scarlett &amp Futch, of De Land, for petitioner.

George Couper Gibbs, Atty. Gen., Thomas J. Ellis, Asst. Atty. Gen and Murray Sams, State Atty., of De Land, for respondent.

OPINION

BUFORD Justice.

This is a habeas corpus proceeding. The matter is before us on motion to quash the return and discharge the petitioner. The petitioner attacks the information as being void and charging no offense against the laws of the State of Florida.

The information is as follows:

'In the Name and by the Authority of the State of Florida: Murray Sams, State Attorney for the Seventh Judicial Circuit of the State of Florida in and for Volusia County, prosecuting for the State of Florida, in the said County, under oath, information makes that Frank V. B. Couch and Gordon Montgomery of the County of Volusia and State of Florida, in and county and State aforesaid, now are and since January 10th, 1938, continuously last past, have been Commissioners of the City Commission of the City of Daytona Beach, a municipal corporation in Volusia County, Florida.

'That the said Frank V. B. Couch and Gordon Montgomery are and have been guilty of malpractice in their said offices, in this, that they did under color of their said offices, obtain sums of money on dates from persons and in amounts as follows:'

Then follows descriptions of amounts of money with the dates and from whom the sums are alleged to have been received. Then follows: 'aggregating in all the sum of Eleven Thousand Three Hundred Fifty-four and 68/100 ($11,354.68) Dollars, of the value of Eleven Thousand Three Hundred Fifty-four and 68/100 ($11,354.68) Dollars, for their personal profit and gain and that John La Tour who from January 10th 1938 to June 10th, 1938, was Building and Electrical Inspector of the said City of Daytona Beach and who since June 10th 1938 has also continuously been a Commissioner of the City Commission of the aforesaid City of Daytona Beach, and W. P. Preer, who since January 10th 1938 has continuously been City Manager of the aforesaid City of Daytona Beach, late of the County of Volusia aforesaid, at the time of the committing of the crime aforesaid with force and arms at and in the County aforesaid and State aforesaid, were then and there unlawfully and feloniously present, and did unlawfully and feloniously aid and abet, counsel, hire and otherwise procure the said Frank V. B. Couch and Gordon Mortgomery to do and commit the said crime in the manner and form aforesaid, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida.'

The question to be determined is whether or not the information charges an offense either under sections 5024, R.G.S., section 7126, C.G.L.; or section 5025, R.G.S., section 7127, C.G.L., or under section 5354, R.G.S., section 7489, C.G.L.

Section 5024, R.G.S., section 7126, C.G.L., is as follows:

'The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this State where there is no existing provisions by statute on the subject.'

Section 5025, R.G.S., section 7127, C.G.L., provides for penalties in cases coming within the purview of the former section.

Section 5354, R.G.S., section 7489, C.G.L., is as follows:

'Any officer of this State who wilfully charges, receives or collects any greater fees than he is entitled to charge, receive or collect by law, or who is guilty of any malpractice in office not otherwise especially provided for, shall be punished by imprisonment not exceeding one year, or by fine not exceeding five hundred dollars.'

The information cannot be upheld under the latter section because the allegations thereof show that the persons charged are not officers of this State.

Section 15 of Article XVI of our Constitution provides:

'No person holding or exercising the functions of any office under any foreign Government, under the Government of the United States, or under any other State, shall hold any office of honor or profit under the government of this State; and no person shall hold, or perform the functions of, more than one office under the government of this State at the same time: Provided, Notaries Public, militia officers, county school officers and Commissioners of Deeds may be elected or appointed to fill any Legislative, executive or judicial office.'

In Attorney General, etc., v. Connors, 27 Fla. 329, 9 So. 7, 8, in construing the effect of this Constitutional provision, we said:

'It is contended for the respondent that section 1 of chapter 3607, entitled: 'An act to amend section 9 of an act to dissolve municipal corporation,' etc. approved February 12, 1885, which provides, among other things, that 'it shall be the duty of the sheriff for the county in which such city shall be situated to perform the duties of marshal for such provisional municipality, and to appoint, subject to the approval and removal by the board, such numbers of policemen as may be authorized by the board,' etc., is obnoxious to that clause of section 15, art. 16, of the constitution of 1885, which provides that 'no person shall hold or perform the functions of more than one office under the government of this state at the same time.' And in this connection it is urged for the respondent that a city marshal is a state officer, in the sense of the Constitutional provision invoked, and that to put the performance of the duties appertaining to his office upon the sheriff of a county, comes within the Constitutional inhibition above quoted, With this contention of the respondent's counsel we cannot agree, and it seems to us that the plain meaning of the language used in the clause of the constitution invoked clearly negatives this theory. The language of the constitution is: 'No person shall hold or perform the functions of more than one office, under the government of this state, at the same time.' The inhibition is aimed solely and entirely against offices held under, or whose duties appertain to, the government of the state. After careful and exhaustive search, we have been unable to find any authority that holds that the government of municipalities forms any part of the government of the state, as such, considered in the broad sense of the term 'state government.' The government of the state, as such, is reared upon and provided for in all of its departments by the constitution, but nowhere in our constitution are the governments of municipalities, or their officials, either created or established as any part of our state government; but their very creation, together with all provisions for 'their government,' are reserved to the legislative branch of the state government, as erected by the constitution. Section 8, art. 8, of the constitution, provides that 'the legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time.' From this provision it will be seen that to the legislature is reserved the power, not only to create, but to abolish, municipal governments. It could hardly be contended that our constitution intended to clothe the legislature with the power to wipe out of existence any part of the great frame-work of state government; yet such would be the inference were we to hold that the government of municipalities formed, strictly speaking, any part of the government of the state. Again, section 14, art. 16, Const.1885, provides as follows: 'All state, county, and municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified.' From this distinct denomination of officers as being state, county, and municipal, we think our constitution clearly recognizes a contradistinction between state officers, county officers, and municipal officers. County officers, being in express terms created and provided for by the constitution of the state as part of the machinery of the state's government in their respective counties, are to be regarded, strictly speaking, as officers of the state.

'Again in enumerating what courts shall constitute the judicial power 'of the state,' the constitution (article 5, § 1) says, 'The judicial power of the state shall be vested in a supreme court, circuit courts, criminal courts, county courts, county judges, and justices of the peace.' In this specific enumeration and grouping of the courts that are to be considered as constituting the judicial power or branch of the state government as such, there is a striking absence of any mention of municipal courts, the creation of which is also reserved to the legislature in section 34, art. 5, of the constitution. Had it been the intention of the framers of our constitution to have the officers of a municipality considered as officers 'under the government of the state,' certainly, in this specific mention of the courts in whom the judicial power of the state was to be lodged, so important a municipal official as one exercising the jurisdiction and powers of a court within the municipality would have been specifically included as part of the state's judicial power. While the officers of a municipality can be and are, in a confined and limited sense, considered as officers of the state...