State Ex Rel. Hatton, Jr. v. Joughin

I have carefully considered the majority opinion and also the dissenting opinion of Mr. Justice Brown, together with the authorities cited in each of the opinions, and I find that I must concur in the majority opinion, and especially for the following reasons:

Section 15 of Article IV of the Constitution provides in part:

"And the Governor by and with the consent of the Senate may remove any officer not liable to impeachment for any cause above named."

This provision is set off in a separate sentence in this section of the Constitution. The report by the Governor to the Senate of a suspension under the provisions of this Article of the Constitution can be but for one purpose and that is to acquire the advice and consent of the Senate to the removal of a suspended officer. The Governor, having suspended an officer, may pursue either one of three courses. He may reinstate the officer or he may withhold any recommendation or advice in regard to the suspension from the Senate and allow the Senate to adjourn without taking action on his suspension, which would result in the automatic reinstatement of the officer suspended, or he may report the suspension under the provisions of the article of the Constitution above named to the Senate for its action.

In this case the record shows that the Governor transmitted the record of the suspension to the Senate pursuant to the provisions of section 15, Article IV, of the Constitution. The Senate, having received the communication from the Governor, as is stated in the majority opinion, held a hearing and allowed the Relator here to produce witnesses and testify himself in controversion of the charges. The Relator appeared before the committee by himself and counsel and offered testimony in his behalf. Evidently it was then conceded by the Governor, *Page 887 the Senate and the Respondent that the Senate had jurisdiction of the matter for the purpose of determining its recommendation to the Governor. After the hearing the Senate Journal shows that on April 28th the following proceedings were had:

"The Senate in executive session on April 28th, 1931, advised and consented to the removal from office by the Governor of L. M. Hatton, Jr., former Sheriff in and for Hillsborough County, Florida."

Thereafter, the Governor filled the vacancy caused by the removal by appointing and commissioning the Respondent to be Sheriff of Hillsborough County until his successor should qualify. This action shows conclusively that it was the construction of the Governor that his communication to the senate in this regard complied with section 15 of Article IV of the Constitution and that the Senate, accepting that communication as such compliance, advised and consented to the removal; that thereupon the office became vacant and the Governor proceeded to fill such vacancy by the appointment of the Respondent.

When the Governor communicates suspension with the charges upon which the suspension is based to the Senate specifically stating that the same is transmitted to the Senate "in pursuance to the provisions of section 15 of Article IV of the Constitution of Florida" he makes the provisions of that section a part of his communication of transmission and, under the provisions of that section, such transmission can only be for the purpose of recommending to the Senate the removal of the suspended officer. Had the Governor's communication not stated that the record was transmitted to the Senate "in pursuance of section 15 of Article IV of the Constitution of the State of Florida" it may be that the provisions of that article of the Constitution would not be construed as constituting a part of his communication and a more serious question *Page 888 would be presented as to whether or not the Senate had jurisdiction to act.

For the reasons stated, I concur in the majority opinion.