Opinion
May 11, 1951.
Melbourne L. Martin, Ralph H. Ferrell, Henry K. Gibson, J.M. Flowers and John M. Murrell, Miami, for relator.
Jack Kehoe, Hunt, Salley Roman, Miami, and J. Lewis Hall, Tallahassee, for respondent.
On October 16, 1950, the Governor of Florida suspended Jimmy Sullivan, sheriff of Dade County, Florida, stating as the cause of suspension that he "has been indicted by a grand jury of that county on the ground of neglect of duty in office and that said offense for which he has been indicted, if true, constitutes neglect of duty in office as provided by Article IV, Section 15 of the Constitution of the State of Florida [F.S.A.]." The order of suspension recited that the suspension was effective "pending final disposition of the charges contained in said indictment * * * on the ground of neglect of duty in office."
On November 10, 1950, Thomas J. Kelly was appointed by the Governor "to be Sheriff in and for Dade County pending the suspension of Jimmy Sullivan from the tenth day of November, A.D. 1950, until the end of the next session of the Senate unless an appointment be sooner made and confirmed by the Senate."
This Court, by a decision rendered on November 21, 1950, held void the indictment upon which the suspension of Sullivan was based.
Thereafter on April 7, 1951, the Governor issued an executive order reinstating Sullivan, reciting that: "The Supreme Court of the State of Florida, Sullivan v. Leatherman, 48 So.2d 836, on November 21, 1950 held that said indictment did not charge Jimmy Sullivan with any crime under the laws of the State of Florida, or that he wilfully failed to perform any duty imposed on him by law, or that he acted corruptly in the performance of any duty imposed on him, and said indictment was void; and * * * the official transcript of the evidence presented to the Grand Jury which returned the indictment has been examined and does not show the violation of any law of the State of Florida by Jimmy Sullivan, nor does it show that he wilfully failed to perform any duty imposed on him by law, or that he acted corruptly in the performance of any duty imposed upon him by law." Upon reinstatement Sullivan promptly assumed the duties of his office.
Thomas J. Kelly has filed in this Court an information in quo warranto, and in due course writ quo warranto issued, directing Jimmy Sullivan to show by what right he claims to exercise the liberties, privileges, franchises and emoluments of the office of Sheriff. By the information, Kelly claims that the Governor usurped the powers granted the Senate under our Constitution, in that the order reinstating Sullivan was void and of no force and effect because issued at a time when the Senate was in session, the Senate having convened on April 3, 1951.
To this information Sullivan filed his demurrer, challenging the sufficiency of the information as a matter of law in general terms, and subject to the demurrer, filed his answer, also in general terms, stating his claim to the office of Sheriff of Dade County.
The Governor has not communicated to the Senate the fact or cause of suspension of Sullivan, nor has he recommended his dismissal. The Senate will continue in session for sixty days from April 3, 1951.
The sole issue raised by the pleadings is the right of the Governor to reinstate a suspended officer at a time when the Senate is in session. It is conceded that the Governor had the constitutional power to reinstate Sullivan if he had done so before the Senate convened.
The answer to this question turns upon a construction of Section 15, Article IV, of our Constitution, the pertinent parts of which are as follows: "officers * * * may be suspended from office by the Governor * * * and the cause of suspension shall be communicated * * * to the Senate at its next session. * * * Every suspension shall continue until the adjournment of the next session of the Senate * * * but the Governor may reinstate the officer * * * upon satisfactory evidence that the * * * charges against him are untrue. If the Senate * * * fail[s] to take action before its adjournment, the officer suspended shall resume the duties of the office."
Section 15 of Article IV of the Constitution sets forth three separate, distinct and independent grants of power: (1) power to suspend, (2) power to reinstate, and (3) power to remove. The first two are granted exclusively to the Governor without any restrictions or restraint, except that the power to suspend ceases when the Senate convenes. The power to remove is granted to the Governor with the limitation that the removal shall not become effective except upon the consent of the Senate, and may be exercised only while the Senate is in session.
Counsel for the respective parties have exhausted all the available authorities in excellent briefs, upon the question of the power of the Governor to suspend or remove public officers, and the power and function of the Senate in respect thereto. They have presented their views ably in oral argument. As a result, counsel and the Court are, for the purposes of this case, in agreement as to every phase of the application of our Constitutional provisions to the present controversy, except the single question stated. The applicable principles of law which are, for the purposes of this case, conceded, may accordingly be summarized without the necessity of citing numerous authorities.
We have held, and counsel agree that for the purposes of this case it is a settled principle of our law, that the power of the Governor to suspend an officer may not be exercised while the Senate is in session, although he may recommend the removal of such officer to the Senate at such time. In re Advisory Opinion to the Governor, 69 Fla. 508, 68 So. 450.
As long ago as 1892 this Court, speaking through Chief Justice George P. Raney, discussing the power of the Governor in the matter of suspensions and removal from office, held that the Governor is the exclusive judge, insofar as the Courts are concerned, of the sufficiency of the proof of the charges advanced against an officer, not merely because the Courts have been given no power of review, but for the further reason that the Senate has been granted such power. And it is as much the duty of the Governor to reinstate an officer against whom a charge warranting suspension has been made, and who has been by him suspended, if the evidence does not sustain the charge, as it is to suspend him in the first instance. And the courts may not inquire into the factual basis for reinstatement, any more than they may inquire as to the sufficiency of the evidence for suspension. See State ex rel. Attorney General v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410.
It has also been held that the power of review exists in the Senate only upon recommendation by the Governor that the officer be removed. The fact that the Governor has suspended the officer, without making such recommendation, leaves nothing for determination by the Senate, even though the suspension continues throughout the entire session. In re Advisory Opinion to the Governor, supra. See also State ex rel. Davis, Attorney General v. Collins, 101 Fla. 371, 134 So. 595.
It is the contention of Kelly that since under settled law, the Governor may not suspend an officer while the Senate is in session, he may not, while the Senate is in session, reinstate an officer who was suspended by him at a time prior to the convening of the Senate.
Kelly also contends that once an officer has been suspended, such suspension, if it continues to a time when the Senate has convened, must continue in effect until the adjournment of the Senate.
We reject the validity of both of these contentions.
The Governor alone has the power to suspend a public officer. He has the power and it is his duty to reinstate a public officer suspended by him upon satisfactory evidence that the charges against the officer are untrue. The Governor may not suspend an officer while the Senate is in session, but may recommend his removal to the Senate, and if the Senate concurs, the removal is effected. It is the duty of the Governor to communicate the fact and cause of the suspension to the Senate, but this may be done at any time while the Senate is in session. If the Governor communicates the fact and cause of the suspension to the Senate, together with a recommendation for removal, and the Senate fails to take action before its adjournment, the officer is entitled to resume the duties of his office immediately. It is the function of the Senate, and never that of the Courts, to review the evidence upon which the Governor suspends an officer in the event the Governor recommends his removal from office.
If the Governor suspends an officer, and communicates the fact and cause of the suspension to the Senate, but fails to recommend his removal, the Senate has no power to remove the officer. Removal from office must be the result of the joint action of the Governor and Senate — the Governor recommending, and the Senate consenting. There is no specific provision of the Constitution restricting the right of the Governor to reinstate an officer suspended by him to a time when the Senate is not in session. There is a specific provision to the effect that suspension shall continue until the adjournment of the Senate, unless before that time the Governor recommends, and the Senate consents to, his removal. There is also a specific provision that the Governor may reinstate the officer upon satisfactory evidence that the charges against him are untrue; and if the Governor avails himself of this provision to reinstate an officer removed by him before the Senate convenes, the Senate has no right, power, or voice in relation to the matter.
Assuming the principles stated in the last two paragraphs as conceded, we turn now to the question which arises in the instant case: Has the Governor, while the Senate is in session, the constitutional power and authority to reinstate an officer suspended by him prior to the convening of the Senate, when he has determined that the charges upon which he was suspended are untrue? Or must the Governor (and the officer) await the adjournment of the Senate?
Although there is no specific provision of the Constitution which in terms forbids the Governor from exercising his right of suspension while the Senate is in session, this Court, in 1915, in an advisory opinion, rendered to the then Governor, decided that the power of the Governor to suspend an officer exists only between sessions of the Senate, and that while the Senate is in session he cannot, during such session, suspend an officer, but can during such time only recommend to the Senate then in session a permanent removal of such officer. See In re Advisory Opinion to the Governor, 69 Fla. 508, 68 So. 450.
It is the argument of the relator, Kelly, that because it was held in the foregoing advisory opinion that the Governor might not suspend an officer during a session of the Senate it now should be held that he is precluded from reinstating an officer during a session of the Senate.
We find nothing either in the spirit or the context of the constitutional provision involved to warrant us in reaching such a conclusion. In State ex rel. Attorney General v. Johnson, 30 Fla. 433, 11 So. 845, 18 L.R.A. 410, decided in 1892, it was pointed out by this Court that it is just as much the duty of the Governor to reinstate an officer who has been suspended, if the evidence does not sustain the charge, as it is to suspend him in the first instance. For us now to hold that the Governor was restricted in this duty so that he could not perform it while the Senate is in session would be a pronouncement in direct violation of an apparently clear mandate of the Constitution.
In addition, it is clear from what has already been said that the Senate is granted no power to remove an officer. That power is vested solely in the Governor. It is true that the Senate must concur in the recommendation of the Governor before the officer may be removed, but beyond that it may not go. How can it be successfully maintained that any power of the Senate is usurped when by the fact of reinstatement itself, the Governor has manifested his determination not to recommend removal?
Under our Constitution, public officers may be removed by two methods. For certain offices, impeachment is prescribed. For all other appointive and elective officers removal is effected by the joint action of the Governor and Senate — the governor being the initiator and movant, and the Senate the reviewing and consenting body. There is a striking resemblance in the two methods, in the respect that in neither instance has the Senate the slightest power to initiate the proceedings. In the case of impeachment, the House of Representatives prefers the charges, and prosecutes the proceedings before the Senate. In all other cases, the Senate may not adjudicate removal except on the express recommendation of the Governor. In neither case has the Senate any power, right or prerogative to exercise its functions as a reviewing body upon its own motion or initiative. The potential power of the Senate to hear and adjudicate the merits of a charge against a public officer can only be invoked by a formal charge in impeachment proceedings, or a formal recommendation of removal by the Governor, and such potential power is not activated by an order of suspension standing alone.
The words in the Article, "and the cause of suspension shall be communicated * * to the Senate at its next session. * * * Every suspension shall continue until the adjournment of the next session of the Senate" are not so compelling in nature and effect as to require that these words be taken out of their context with the section as a whole, and justify us in relieving the Governor of his constitutional duty to reinstate an officer when he has ascertained that the charges made against such officer are untrue. And, as we have already pointed out, the good faith of a Governor, or lack thereof, in making his findings and acting thereon, cannot be questioned by the courts. Under our system of government, and the theory of checks and balances in its administration, certain responsibilities are cast upon the executive, others upon the legislative, and still others upon the judicial, departments, with the intention and purpose, at least in part, that the responsibility for the performance of their respective functions may be ascertained, and each made accountable therefor to the forum of public opinion. By the action of the Governor in reinstating Sullivan, the Senate has lost no prerogative or function vested in it by the Constitution, and hence its powers have not been usurped by the Governor's action.
Again, for us to hold that, after the Governor is satisfied that the charges against him are untrue, an innocent suspended officer must await reinstatement until the adjournment of the Senate, would permit the commission of a grave injustice; especially if the failure to reinstate is based upon such a tenuous thread of construction as to be meaningless in purpose. What useful purpose could possibly be served if the Governor is required, in spite of a conviction that the charges against the officer are untrue, to continue the suspension though the Senate is in session? The Senate has no power, duty, or prerogative to act upon the report to it of a suspension, nor can it take action to reinstate the officer — that is exclusively the prerogative of the Governor. Consequently, the public would be required to compensate him for the time he was deprived of his office awaiting, unnecessarily, the adjournment of the Senate. The words "the Governor may reinstate * * * upon satisfactory evidence that the * * * charges * * * are untrue" may and should be given their natural meaning and liberally construed so as to avoid a penalty. The word "upon" may be read and understood to mean "as soon as he has received", without doing violence to the language used.
Of what is the Senate itself deprived by the reinstatement of the officer while it is in session? It has no function, power, or prerogative in the case of the communication to it of a suspension, absent a recommendation of removal. It can only receive the communication — it may not take any action thereon recognized by law or the Constitution. If we assume that it might at least desire to take measures to satisfy itself of the good faith of the Governor in suspending the officer, it may do this after the event of reinstatement as well as before.
We can conclude only that the power to reinstate a suspended officer is not abrogated by the intervention of a session of the Senate, and it necessarily follows that the demurrer to the information should be sustained, and the writ quashed.
We have not overlooked the second question propounded in the brief of the relator, Kelly, which attempts to raise the question of the sufficiency in form and substance of the order reinstating the respondent, Sullivan. We consider that this issue was not raised by the information, but if we were to regard it as properly before the Court, it would be our view that such issue should likewise be determined against the relator; for it is manifestly plain that Sullivan was suspended by the Governor solely because of the fact that an indictment had been returned against him charging him with neglect of official duty, and that Sullivan was reinstated by the Governor because the indictment was held void.
SEBRING, C.J., TERRELL, CHAPMAN and ADAMS, JJ., and PARKS, Associate Justice, concur.
THOMAS, J., dissents.
I agree to the majority opinion prepared by Mr. Associate Justice FABISINSKI. It appears that the Governor, pursuant to authority vested in him by Section 15, Article IV of the Constitution, suspended the Sheriff of Dade County. The point for determination is whether or not the Governor is authorized to reinstate the Sheriff while the Senate is in session.
The answer to this question is inherent in Section 15, Article IV of the Constitution, as quoted in the majority opinion. If this provision of the Constitution is susceptible to more than one interpretation, certainly the most satisfactory answer to the question should be found in the interpretation given it by those who took part in the convention that composed and promulgated the Constitution.
The power conferred by Section 15, Article IV is vested solely in the Governor and the Senate, the power of each being clearly defined. Unless it be charged that the ground of suspension is not a legal one as defined in the Constitution, the courts are powerless to interfere with the action of the Governor or the Senate. State ex rel. Attorney General v. Johnson, 30 Fla. 499, 11 So. 855; State ex rel. Bridges v. Henry, 60 Fla. 246, 53 So. 742.
The grounds on which the Governor may suspend an officer are "malfeasance, or misfeasance, or neglect of duty in office, for the commission of any felony, or for drunkenness or incompetency." "But the Governor may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against him are untrue."
The crucial point here is when the power of the Governor to reinstate a suspended officer is concluded. Is it cut off when the Senate convenes or does it continue till the Senate adjourns? Since no date is fixed for the Governor to transmit the suspension order to the Senate, I must conclude that he may transmit it to the Senate any time during the session and that the jurisdiction of the Senate attaches when the order is received by it. When the Senate receives the order of suspension it proceeds to determine whether or not the suspension was made in compliance with the Constitution. If an affirmative answer to this question is reached the Senate consents to the suspension, the Governor is advised and he may then remove the officer. If a negative answer is reached, the Governor is also advised and the officer is reinstated. If the Senate fails to consider the order or the Governor fails to transmit it to the Senate the suspended officer automatically resumes his duties.
A fair consideration of one coordinate branch of the government for another would require that the Governor transmit all suspension orders to the Senate in ample time for it to give them due consideration before it adjourns, but there is no limitation on his power to do so. Any time the Governor comes into possession of "satisfactory evidence that the charge or charges" against the suspended officer are not true, he may reinstate him. Such evidence may be submitted to the Governor any time before the suspension order goes to the Senate. Even if he receives it after the suspension order goes to the Senate, it would not be inappropriate for the Governor to request the Senate to return the order for further action. As a member of the Senate I have known this request to be made and met with compliance. It is a courtesy unusually extended the Governor by the Senate.
Suspending or removing one from office is a very serious matter. The function of the Governor and the Senate in doing this is a grave responsibility. They do not act at cross purposes in performing this duty, each accords the other full opportunity to exercise its constitutional duty in a fair and impartial manner. A suspension order is an indictment of the officer suspended and the Senate examines and tries it with a view of arriving at the truth of the charge. The Governor is in no sense on trial but the charge he brings against the suspended officer is the issue that the Senate tries. Section 15, Article IV, is nothing more than a rule to guide the Governor and the Senate as honorable men in their deliberations. In either case the issue turns on the evidence to support the suspension, so to me it is perfectly logical for the Governor to reinstate the suspended officer at any time he is convinced that he made an error. He is the judge of the sufficiency of the evidence to suspend. The Senate not only passes on the sufficiency of the evidence but it may review the constitutional basis of the suspension,
My answer to the question presented is not only the result of interpretation, it is based on (1) knowledge absorbed from Justices of this Court, who were members of the Constitutional Convention and who were in a large measure responsible for the procedure by which suspensions are now handled, (2) my experience in the Senate where I served on committees that considered suspension orders and (3) my experience as a member of the legislature, where I served with three very able members who were also members of the Constitutional Convention. It is a significant fact that every Senate from the adoption of the constitution to the 1913 Senate was composed in part of men who were members of the Constitutional Convention. The evidence is replete that these men had much to do with shaping this and many other constitutional questions.
Judge R.F. Taylor was a member of the Constitutional Convention and became a Justice of this Court within four years after the Constitution became effective. Judge W.A. Hocker was also a member of the Constitutional Convention, was a Commissioner and a Justice of this Court soon after Judge Taylor became a Justice of it. Judge J.B. Whitfield for many years a Justice of this Court, attended the Constitutional Convention as a reporter and reported its proceedings to some of the leading papers of the Country. One or more of these three Judges participated in all the decisions construing Section 15, Article IV bearing on the question in hand. Judge Taylor and Judge Hocker participated in drafting Article IV of the Constitution and I think they approved the interpretation applied in this opinion.
As a member of the Senate I served on a number of Committees whose duty it was to examine the merits of the Governor's suspension orders. In these examinations the rights of the suspended officer, the jurisdictional facts supporting the suspension and every other legal aspect essential to its constitutional validity were gone into. Unless these were regular and revealed that the Governor had acted within the power delegated to him, the Senate refused to consent to the suspension. The procedure followed in these investigations was that prescribed by the early sessions of the Senate after the Constitution became effective and they have not been materially changed over the years.
There is positively no reason in logic why the power of the Governor to reinstate a suspended officer should not extend through the session of the Senate. The Governor and the Senate are both bound by the evidence to support the grounds of suspension, it has nothing more to stand on. This fact accounts for the language of Section 15, Article IV. The makers of the Constitution took this view of it, this Court has so construed it and the Senate has adjudicated suspensions for 65 years, guided by this interpretation.
For the reasons so stated I concur in the majority opinion.