State Ex Rel. Hatton, Jr. v. Joughin

It is quite plain that, under Section 15 of Article IV of the constitution, in order for the Senate to acquire jurisdiction to concur in the removal of an officer, the Governor must first recommend to the Senate such removal. Of course, the Governor, if it is his intention to secure the Senate's consent to the removal of an officer, is not required to use the exact word used in the constitutional provision, but he should use a word or words of similar import. This is too important a matter to be left open to mere conjecture. It is true, as stated in the majority opinion, the richness and variety of the English language is such that the same meaning may be expressed in different words. Thus the Governor need not be required to say in his communication to the Senate that "it is my recommendation," or "I recommend" that the suspended officer be removed. Perhaps it would be sufficient to say that 'I advise" or "I request" or to use any language which fairly and reasonably amounts to a recommendation to the Senate that they consent to or concur in the removal of the officer. It is not, however, sufficient to merely say that, as was done in this case: "In pursuance of section fifteen of Article IV of the Constitution of the State of Florida, I have the honor to transmit herewith Official copy of the Executive Order of Removal of L. M. Hatton, Jr., Sheriff of Hillsborough County, Florida, together with affidavits supporting the same." (It might be quoted, parenthetically, that the words "order of removal" of course referred to and meant "order of suspension," as, up to that time, no order of removal had been, or could have been, made, and the order accompanying the communication was merely the order of suspension.) Obviously, to say, "I * * * * * transmit herewith * * * * * * * copy of order" etc., is not at all synonymous in meaning *Page 889 with "I recommend the removal of". Nor is the ambiguity or insufficiency of the language used removed by construing it in connection with the introductory phraseology, "In pursuance of section fifteen of Article four of the constitution of the State of Florida, I have the honor to transmit herewith," etc., because the language thus used in the Governor's communication is entirely consistent with and appropriate to the discharge of the duty imposed upon the Chief Executive by the first sentence of the constitutional provision, which gives the Governor the power to suspend officers for certain causes, and requires that "the cause of suspension shall be communicated to the officer suspended and to the Senate at its next session." The Governor's communication to the Senate complied with this requirement, and hence it was made "In pursuance of section 15 of Article IV of the constitution." But, in order to invoke, and authorize the exercise of, the potential jurisdiction of the Senate to take such action by that body as, under the constitution, is essential to the removal of the suspended officer from the office in question, the constitution requires that the Governor must go further than merely communicate or transmit a copy of the order of suspension, together with the affidavits supporting the same, to the Senate; for, by the very clear and easily understood language of the Constitutional provision, the Senate cannot take any effective action for removal except "upon recommendation of the Governor." Without such recommendation, the Senate cannot acquire jurisdiction of the subject matter of removal, and any such action would be void. Nor can the suspended officer confer such jurisdiction upon the Senate by personally appearing before the Senate or one of its committees and defending himself against the charges made. It is elementary law that jurisdiction of the subject matter cannot be conferred by consent of parties. Lovett v. Lovett, 93 Fla. 611, 112 So. 2d 768.

To my mind, the clearest and most logical and accurate *Page 890 interpretation of this section 15 of Art. IV of the constitution, to be found in all the former records of this court, is that contained in the Advisory Opinion to the Governor, filed April 22, 1915, and reported in 69 Fla. 508,68 So. 2d 450, and I think it fully supports the views which I have expressed. This Advisory Opinion was concurred in by all the members of this Court, and it reads in part as follows:

"It must be observed that the words "suspension" and "removal" are both used in this section, and that the penalties, i. e. suspension from office or removal from office, are imposed for identically the same acts of commission or omission on the part of the official, in other words the acts of commission or omission on the part of the official that will justify his suspension from office will also justify his permanent removal from the same office. The true intention of this provision in the organic law is that the Governor has no power to permanently remove an officer from his office unless it be done by and with the consent and concurrence of the Senate. The constitution makers, taking cognizance of the fact that an official not subject to impeachment, might, during the time when the Senate was not in session, be guilty of some act of commission or omission that would justify his removal from office, in order to preserve to the Senate the power delegated to it to concur in such removal before it became permanently effectual, delegated to the Governor the power, during such recess of the Senate, not to remove, but simply to suspend such officer, enjoining upon him the duty of reporting such suspension with the cause thereof to the Senate at its next session thereafter. If the Governor at the time of his report of such suspension to the Senate at its next session, or at any time during such next session of the Senate, shall recommend to the Senate the removal of such suspended officer, and such Senate consents thereto and concurs with the Governor in such recommendation for removal, the officer becomes eo instanti permanently removed, but if such Senate affirmatively refuses to consent to the removal recommended by the Governor, then such previous suspension from office expires and comes to an end eo instanti upon the affirmative refusal of the Senate to consent to or concur *Page 891 in the removal recommended. But if the Senate to whom such suspension and recommendation for removal has been reported simply fails to take affirmative action thereon, and so failing adjourns, then upon such adjournment of the Senate such previously made suspension eo instanti comes to an end, and the suspended officer at once resumes his office."

"As it requires the joint action of both the Governor and the Senate to effect a permanent removal of an officer from his office, if the Governor does not recommend to the Senate the removal of such officer, then such previous suspension likewise terminated with the adjournment of such session of the Senate held next subsequently to such suspension." * * * *

"It must be observed also that the section under discussion makes no provision for any action by the Senate whatsoever upon a report or communication by the Governor of a simple suspension of an officer without any recommendation for removal."

While the Chief Executive and the legislative department are vested with great power and authority, the fact remains that the members of all departments of the State government are bound by the mandates of the constitution as much so as the private citizen. In the case of State v. Chase, 91 Fla. 413,107 So. 2d 541, decided by this court in 1926, the Governor's warrant of extradition was, by reason of the omission of certain material words required by law, held defective and invalid and the prisoner ordered discharged. In that case, it was said:

"We notice that it has been contended in some of the cases in the books that, on account of the high office held by the chief executive of a state, the validity of his warrant of arrest in extradition cases should not be closely questioned upon hearings before the courts on writs of this kind. No such contention is made in this case. Counsel representing both the state and the defendant concede that this is a government of laws and not of men, and that even an instrument of such dignity as an executive warrant is open to full inquiry as to its legal sufficiency upon the hearing on the ancient writ *Page 892 of habeas corpus at the suit of the humblest of individuals."

It is a well settled rule of constitutional construction in this State that where the constitution expressly provides the manner in which a thing shall be done, it impliedly prohibits any other manner of doing it. So where, as here, the constitution provides that an officer (not of the class subject to impeachment proceedings) may be removed by the Senate "upon the recommendation of the Governor", such officer cannot lawfully be removed by the Senate without suchrecommendation by the Governor. No set form of words is required, but whatever language the Governor may see fit to use in his communication to the Senate, it must, in order to comply with the constitution, when fairly and reasonably interpreted, amount to a recommendation of removal. This is vital, and jurisdictional, and absolutely essential before the Senate can take any effective actions for removal. In the instant case, to my mind, the Governor's communication, even when liberally construed, does not contain any recommendation for removal from office, thus rendering the Senate's action nugatory. Holding these views, I cannot do otherwise than dissent.