Opinion
May 11, 1951. Rehearing Denied May 28, 1951.
Appeal from the Circuit Court, Hardee County, D.O. Rogers, J.
Rosin Paderewski, Arcadia, for appellants.
Bentley Shafer, Lakeland, for appellee.
It appears by the record in this cause that an elisor was appointed under the provisions of Section 47.12, F.S.A., by the Circuit Court of Hardee County and he immediately arrested several persons in Hardee County, Florida, on the charge or charges of selling lottery tickets or conducting a lottery. The persons so arrested were released on bond. A special term of court was held in said County and the persons named therein were arraigned on the aforesaid charges and entered pleas of guilty. The trial court assessed fines against said persons aggregating $17,250, and the further sum of $14,187.90 was seized by the elisor, or some of his deputies, in one of the gambling places and a judgment of forfeiture was entered therein.
The aforesaid sums were not delivered to the Sheriff of Hardee County but to the Clerk of the Circuit Court, who, by law, is ex officio Clerk to the Board of County Commissioners. The fines imposed, totalling in the aggregate $17,250, were by the Clerk placed, after the receipt of same, to the credit of the fine and forfeiture fund of Hardee County, Florida. The further sum of $14,187.90 seized at one of the gambling places by the elisor, or his deputies, was by a judgment of the lower Court forfeited and the amount delivered to the Clerk of the Circuit Court, who is now the legal custodian as ex officio Clerk to the Board of County Commissioners. The Sheriff of Hardee County was without knowledge of the appointment of the elisor; did not render any assistance in arresting those engaged in gambling activities, and the Sheriff was not present at the time of the seizure of the $14,187.90 in one of the gambling houses then situated in Hardee County, Florida. The elisor only was present at the trial of the defendants and at the time the judgment of forfeiture was entered. Counsel for the defendants by-passed the Sheriff's office and paid the money to the Clerk of the Court and the forfeiture sum in a similar manner was placed in the custody of the Clerk.
In a petition for an alternative writ of mandamus filed in the Circuit Court of Hardee County, Florida, on the part of the Honorable E.O. Roberts, as Sheriff of said County, against the Board of County Commissioners and the Clerk of the Circuit Court, it was contended that the relator, as Sheriff was entitled to a statutory fee of 5 per cent on the several fines aggregating $17,250 and the forfeited funds in the sum of $14,187.90. It was further contended that the Sheriff's office was the lawful custodian of all money arising from both fines and forfeitures — that a record thereof in the Sheriff's office was required by law for various reasons. An answer or return was made to the alternative writ, a hearing was had, and a peremptory writ of mandamus issued as prayed for, and the Clerk and the Board of County Commissioners appealed. It is admitted that the aggregate fines in the sum of $17,250 and the forfeited money in the sum of $14,187.90 were by the Clerk of the Circuit Court of Hardee County, Florida, placed to the credit of the fine and forfeiture fund of Hardee County, Florida.
One of appellants' questions posed here is viz.: When in a criminal proceeding in the Circuit Court the defendant pleads guilty, a fine is assessed against the defendant and paid by the defendant to the Clerk of the Court, the Sheriff not being present or represented in the matter, and the Sheriff having no process, order or commitment commanding or authorizing any action on his part as to the collection of the fine and the fine having been then by the Clerk of the Court deposited in the fine and forfeiture fund of the county, can the Sheriff claim the right to handle the money from the fine and be paid five per cent for so doing?
Section 15 of Article 5 of the Constitution of Florida, F.S.A., provides for the election in each county of Florida certain county officials and among them is a Sheriff. Each of said officers shall hold office for four years. Their duties shall be prescribed by law. Section 6 of Article 8 provides for the election by the qualified electors of each county certain designated officials. These officers when elected shall hold office for a period of four years. Their powers, duties and compensation shall be prescribed by law. In the case of State ex rel. Hatton, Jr. v. Joughin, 103 Fla. 877, 138 So. 392, we held that an officer's right to an office and the emoluments thereof are protected by the 14th Amendment. The right to exercise and enjoy the office of Sheriff is a species of property which the law will protect subject to impeachment or suspension by the Governor.
Section 26.49, F.S.A., provides that the Sheriff of the county shall be the executive officer of the Circuit Court of the County. Section 30.23 provides for the compensation of Sheriffs, amounts and manner of payment. The Sheriff is entitled to a fee of five per cent on moneys collected for the State of Florida: fines, fees, costs or other money adjudged to the State. Section 144.01, F.S.A., is viz.:
"To execute process and preserve the peace
"The sheriffs, in their respective counties, shall execute all writs, processes and warrants directed to them, and they shall be conservators of the peace; and they shall, with force and strong hand when necessary, suppress all tumults, riots and unlawful assemblies, and apprehend, without warrant, any person who is in the disturbance of the peace, and carry him before the proper judicial officer, that further proceedings may be had against him according to law."
Also Section 30.21, F.S.A., is viz.:
"Failure to pay over money
"If any sheriff shall fail to collect or pay over fines, fees, costs or other moneys adjudged to the state which he shall have been by proper process directed to collect, he shall forfeit his commissions and also be liable to a fine of fifty dollars, to be recovered by motion before the circuit court, after ten days' notice, and his sureties shall also be liable for the amount of such moneys upon his bond as sheriff."
It is not disputed that E.O. Roberts now holds the office of sheriff of Hardee County; that he was chosen by the qualified electors of Hardee County; he took the prescribed oath; gave a bond conditioned according to law and entered upon the duties of the office. The officer is now responsible to the public for the performance of the duties of the office, and, upon assuming the duties and responsibilities thereof likewise he became entitled to its profits and emoluments. The right of compensation is an incident to the office as the person holding the office is entitled to its compensation. The right of an officer to compensation is not impaired by his occasional or protected absence or a temporary incapacity to perform its duties or the neglect of its duties. 67 C.J.S., Officers, § 83, pages 320-322.
The command of the peremptory writ which directs the respondents to withdraw from the "fine and forfeiture fund" of Hardee County the items of $17,250 and $14,187.90 and deliver the same to the relator so that he, in turn, may place the same to the credit of the above fund would be futile and not within the commands of the petition and alternative writ and the same is reversed and held as naught; but the command of the writ requiring the payment of the five per cent commission is affirmed.
It therefore follows that the judgment appealed from is reversed in part and affirmed in part.
TERRELL, Acting Chief Justice, and THOMAS and ADAMS, JJ., concur.