Opinion
January 15, 1952. Rehearing Denied February 12, 1952.
Appeal from the Circuit Court, for Dade County, Stanley Milledge, J.
Roberts, Holland Strickland, Miami, for appellants.
Harry W. Prebish, Miami, for appellee.
The appellants as members of the City Council of North Miami Beach instituted a suit against the appellee as mayor of that city seeking an injunction against his suspension of the city manager and city attorney, a declaration of the legality of an ordinance creating the office of manager, and a definition of this officer's duties.
By Chapter 26056, Laws of Florida, Special Acts of 1949, the council was empowered to create the office of city manager, to elect a manager and to prescribe his powers and duties. The council, 1 May 1951, passed such an ordinance, No. 232, and selected John D. Hansell for the post.
We pass now to Section 26, Chapter 15824, Laws of Florida, Special Acts of 1931, where we find that the mayor may suspend employees and officers, except a councilman, and submit to the council at its next meeting the cause of his action. It is there provided that if the suspension is sustained by a majority of that body the officer or employee "shall be dismissed, otherwise he shall be reinstated."
Section 23 of the same act provides for the election by the council of the city attorney whose duties shall be those prescribed in the act and, from time to time, by ordinance. On 24 April 1951 John W. Estes, Jr., had been chosen for this position.
The very day the manager was selected it appears that a feud was started between the council and the mayor by the latter's removal of the manager on the grounds that the "appointment [was] a waste of the tax payers money," the majority of the voters in the municipality was opposed to such form of government and the ordinance was "contrary to the charter," hence illegal. Three days later the council voted not to sustain the suspension of Hansell so Hansell was reinstated. The following day the mayor again suspended the manager, giving but one new ground this time, namely, the usurpation by the manager of "the office of the Mayor." Three days passed and the council again voted not to approve this action by the mayor, therefore Hansell was again reinstated. The very next day the mayor suspended Hansell for the third time on the ground that the ordinance was invalid.
Meanwhile the mayor had also turned his guns on the attorney, removing him May 1 by verbal order for causes that do not appear in the record. The council, three days thereafter, disapproved this action and the following day the mayor again suspended the attorney because he was "unqualified" and so biased and prejudiced that he could not "fairly represent the City impartially." The council refused to confirm and the attorney was consequently reinstated, whereupon the mayor, the same day, removed the attorney on the same grounds and added one more — that he was "inexperienced."
But these unusual goings on as they were detailed in the bill did not stop here. From an amendment it appears that both manager and attorney were continued in office by vote of the council and immediately suspended by the mayor, all since the bill was filed.
The mayor in his answer directly attacked the ordinance and the act under which it was passed. By way of cross bill he asked for a determination of the validity of the ordinance, also one numbered 233, and sought allied relief. Although the parties prayed primarily for construction of the ordinance creating the city managership, they seem rather in accord on the two questions answered here: the validity of Chapter 26056, and of ordinance No. 233 which we will presently analyze. In any event answers from this court should settle all phases of the controversy and put an end to a situation that appears to have reached a point of absurdity, and to have unsettled the proper administration of the city's affairs.
Before discussing the first matter we will digest the chancellor's comment on the law involved. He considered it too broad because it authorized the council "to repeal all or any part of Chapter 15824 which the Council [saw] fit to do, including the delegation to a City Manager not only the duties previously exercised by the Mayor, but the powers exercised by the Council." He apprehended that the council "could" even delegate the power to enact ordinances. He pronounced such a "construction * * * impossible [because] the Legislature cannot be held to have delegated to its own creations the power to repeal an act of the Legislature." So he held that the law had "no meaning whatever," consequently the ordinance was "ineffectual."
Under Section 8 of Article VIII of the Constitution, F.S.A., the legislature may establish municipalities, provide for their government, and make alterations or amendments at any time. This is precisely what was done by the passage of the act now challenged authorizing the city council to originate the office of city manager, fix the duties of the incumbent, and, incidentally, repealing all laws or parts of laws in conflict. There is no occasion now to be concerned with any attempt the council might make to place inordinate power in the manager. What the mayor has done in repeatedly undertaking to remove the officer brings into focus only the validity of the creation of the office. This is obvious from the mayor's reasons for his efforts to thwart the city's legislative body. Under his authority to suspend an officer for cause, he has tried to impose on the council his idea of the unwisdom of establishing the office. Such was not his function or his province. He did not suspend because of anything that would even indicate that the officer was unfit to serve or that he had served improperly, but solely because the mayor held the opinion that there should be no such office.
Obviously there could have been no "cause" chargeable to the appointee Hansell for he was never given an opportunity to perform his duties. We are unable to find in the law or system of government anything to justify the mayor's arrogating to himself such authority.
His power was limited to suspensions and to interim appointments until the council had reviewed the reasons given. Final authority was reposed in that body: to remove if good reason was established, to reinstate if it was lacking. If they decided that the cause was well-founded, the suspension ripened into a removal.
We conclude that the actions were invalid, the continued suspensions wholly unwarranted.
Although the point is not included in the formal questions, we think it well to decide, as the chancellor did, the propriety of the treatment the city attorney received at the hands of the mayor. The chancellor thought that no cause whatever was shown for his suspensions; that the mayor's reasons for them were nothing more than mere opinions; and that the mayor's defiance of the council's vote rejecting his actions amounted to improper interference with both the council and the attorney. We quite agree with that decision.
This brings us to ordinance No. 233, enacted 8 May 1951 while the suspensions and reinstatements were in full career. Passed as an emergency measure it contained the provision that all ordinances, resolutions and orders of the council should be obeyed by all city officials and that any official who should be found guilty of disobedience "by a two thirds vote of the City Council" should be fined or imprisoned, or both, and removed from office. (Italics ours.) We will forego any curiosity about the emergency feature. The measure providing for the imposition of fine, imprisonment or both by a majority vote of the city council strongly resembles an attainder and its operation would constitute deprivation without due process of law. The provisions are not strengthened by the further stipulation that removal could also be imposed. Even if the council had the power to discipline all "officers" this manner of exercising it would be improper.
Reversed in part and affirmed in part.
SEBRING, C.J., and CHAPMAN, HOBSON, ROBERTS and MATHEWS, JJ., concur.
TERRELL, J., not participating.