A petition was filed here for a writ of certiorari to review a final order of the Florida Industrial Commission, a State Administrative board, ratifying and confirming the "dismissal" of the petitioner as Director of the Florida State Employment Service. Such "dismissal" was an executive order of the Governor which "terminated" the "services" of petitioner "as Director of the Florida State Employment Service."
It is in effect alleged as follows:
That on December 1, 1938, petitioner was duly appointed by the then Governor to the office of Director of the Florida State Employment Service *Page 60 as provided by Section 11 of the Florida Unemployment Compensation Law and thereupon immediately entered upon the discharge of his duties as such, and continued to discharge and perform those duties . . . down to 12:00 o'clock noon on March 14, 1941.
That on February 26, 1941, petitioner received from the Governor of Florida an executive communication or notice as follows:
"Your services as Director of the Florida State Employment Service are to be terminated on March 14, 1941, because of inefficient operation of the Service as a whole."
Then follow nine specifications or grounds for the Executive termination of the petitioner's service as such Director.
That on March 13, 1941, petitioner received a further communication from the Governor as follows:
"Dr. Fons A. Hathaway, Director "Florida State Employment Service "Tallahassee, Florida
"Dear Dr. Hathaway:
"Not having been presented with your resignation, it is not necessary to notify you that your services as Director of the Florida State Employment Service are terminated as of Noon, Friday, March 14, 1941.
"My letter of February 26 gave you fifteen days notice of this action with specified reasons therefor in writing as provided by the regulations of the Merit System.
*Page 61"Very truly yours, "(s) Spessard L. Holland "Governor."
That on March 25, 1941, "petitioner pursuant to the provisions and under authority of Amended Regulation No. 6 of the Florida Industrial Commission, Article 13, Section 4, Paragraph 1, filed his appeal to the Merit System Council of Florida, . . . praying that this appeal be heard with the right to present witnesses and give evidence before the Merit System Council, as provided by Amended Regulation No. 6, to the end that it may be determined whether the charge of inefficiency on which appellant was dismissed as Director of the Florida State Employment Service, has been sustained, and if it shall be found that said charge of inefficiency and the reasons specified in the executive communication of February 26, 1941, have not been sustained or are insufficient in law, that appellant be reinstated in his position as Director of the Florida State Employment Service, as contemplated by the Florida Unemployment Compensation Law and Amended Regulation No. 6, adopted pursuant thereto."
That on April 3, 1941, a formal hearing or trial before the Merit System Council of the Florida Industrial Commission was begun and testimony was taken:
That on May 13, 1941, the Merit System Council of the Florida Industrial Commission pursuant to amend Regulation No. 6, Article 13, Section 4, Paragraph 2, of the Florida Industrial Commission, made its recommendation in writing to the appointing authority for consideration by the Commission, the recommendation concluding as follows:
"1. That not less than fifteen days prior to the effective date of his dismissal the appellant was given notice of such dismissal in writing, which notice *Page 62 stated specific reasons therefor, as required by Regulation No. 6, as amended of the Florida Industrial Commission, stating: 'Your services as Director of the Florida State Employment Service are to be terminated on March 14, 1941, because of inefficient operation of the service as a whole.' and enumerating certain specific instances.
"3. That the dismissal of Dr. Hathaway, as Director of the Florida Employment Service was for cause within the meaning of Regulation No. 6, as amended.
"Wherefore, this Council recommends that the dismissal of Dr. Fons A. Hathaway, as Director of the Florida State Employment Service, be sustained."
That on May 23, 1941, the Florida Industrial Commission made and filed in said cause its decision on the trial appeal of Dr. Fons A. Hathaway, wherein it recites, among other things, that:
"(f) The consideration by the Commission of the recommendation of the Merit System Council and the transcript of the testimony and proceedings had at such hearing the said decision of the Florida Industrial Commission thereupon being as follows:
'Now, Therefore, After consideration of the Council's said recommendation, as well as the testimony and proceedings taken and had at such hearing as recorded in the transcript thereof, the Florida Industrial Commission does hereby make its decision, which shall be final and which shall be duly recorded in the permanent records of the Commission, as provided in Regulation No. 6, amended, of the Commission:
'It is hereby found and resolved by the Florida Industrial Commission, in regular meeting duly held at Tallahassee, Florida, this 23 day of May, 1941, that Dr. Fons A. Hathaway was duly dismissed as Director *Page 63 of the Florida State Employment Service for cause, effective March 14, 1941, within the meaning of said Regulation No. 6, as amended, and said dismissal is hereby ratified and confirmed.
'It is further resolved that Dr. Fons A. Hathaway be promptly notified of this decision, as provided in Section 4 of said Regulation No. 6, amended, and that this decision be duly recorded in the permanent records of the Commission.
'This 23 day of May, A.D. 1941.' "
The petition for certiorari concludes as follows:
"Your petitioner, therefore, is advised and believes and respectfully represents unto this Honorable Court that the said decision of the Florida Industrial Commission is erroneous, is not supported by the evidence, is in violation of the established principles of law, is a palpable miscarriage of justice, and results in substantial injury to petitioner, and petitioner assigns the following reasons relied on for granting of a writ of certiorari:
"I. In the said decision or order and the antecedent proceedings upon which it is based, there was a failure to accord to uncontradicted credible testimony taken before the Merit System Council and by it reported to the Commission, the probative effect attributed to it by law to the prejudice of petitioner and in deprivation of rights accorded him by law.
"II. In the said decision or order and the antecedent proceedings upon which it is based, there was a failure to comply with the essential requirements of law resulting in a palpable miscarriage of justice and a substantial injury to petitioner, and petitioner, has no other remedy. *Page 64
"III. The said decision of the Florida Industrial Commission ratifying and confirming petitioner's dismissal as Director of the Florida State Employment Service was contrary to and in violation of the provisions of Chapter 18402, Laws of Florida, Acts of 1937, as amended by Chapter 19637, Acts of 1939, known as the Florida Unemployment Compensation Law, and Amended Regulation No. 6 promulgated under authority thereof, and particularly that part of Section 12 D of Chapter 18402, Acts of 1937, which reads as follows: 'The Commission shall establish and enforce fair and reasonable regulations for the appointments, promotions, and demotions based upon rating of efficiency and fitness for terminations for cause.'
"IV. The said decision of the Florida Industrial Commission was contrary to and in violation of the spirit and intent of the Act of Congress entitled 'An Act to provide for the establishment of a National Employment System and for the cooperation with the States in the promotion of such system and for other purposes,' approved June 6, 1933, the provisions of which Act of Congress as amended were accepted by the State of Florida in the enactment of Chapter 18402, Laws of Florida, Acts of 1937, and to the observance of which said Act of Congress the State is pledged, as appears in Section 13A of Chapter 18402, Laws of Florida, Acts of 1937, as amended by Chapter 19637, Acts of 1939, as follows:
" 'The provisions of the said Act of Congress, as amended, are hereby accepted by this State, in conformity with Section 4 of said Act, and this State will observe and comply with the requirements thereof.' *Page 65
"V. The reasons stated for petitioner's dismissal and which were ratified and confirmed by the said decision of the Florida Industrial Commission do not constitute 'cause' within the contemplation, intent, or spirit of Chapter 18402, Laws of Florida, Acts of 1937, as amended, or Amended Regulation No. 6 of the Florida Industrial Commission promulgated under authority of said Act.
"VI. The said decision of the Florida Industrial Commission violates the spirit and purpose of the Merit System authorized by and set up and established under Chapter 18402, Laws of Florida, Acts of 1937, as amended.
"Petitioner submits herewith copies of Amended Regulation No. 6, of the Florida Industrial Commission, relating to Merit System and personnel administration, effective April 4, 1940, and Revised Regulation No. 27, establishing administrative units and functions thereof, effective December 5, 1939, and asks that the same be taken and considered by the Court in connection with the Florida Unemployment Compensation Law and applicable provisions of the Federal Law in a consideration of this petition and of the rights of petitioner under the showing here made.
"Wherefore, your petitioner prays that a writ of certiorari be issued out of and under the seal of this Court directed to the respondents as members of and constituting the Florida Industrial Commission to certify and send to this Court a full and complete transcript of the record of all proceedings in the said cause wherein the said Florida Industrial Commission on the 23rd day of May, A.D. 1941 made and entered its decision on the appeal of Dr. Fons A. Hathaway to the Merit System Council of the Florida Industrial *Page 66 Commission from the said order of dismissal dated March 13, 1941, and that said transcript of the record of proceedings include all papers and orders referred to in said decision of the Florida Industrial Commission dated May 23, 1941, as having been submitted by the Merit System Council for consideration by the Commission, including a transcript of the testimony and proceedings taken and had at the hearing before the Merit System Council and which was stated to have been considered by the Florida Industrial Commission in arriving at and making its said decision, to the end that said cause be reviewed and determined by this Court as provided by law and the rules of this Court, and that the said decision or order of the Florida Commission in said cause may be quashed by this Honorable Court."
An Act of Congress provides:
Sec. 49c. Acceptance by States; creation of State agencies
"In order to obtain the benefits of appropriations apportioned under section 49d of this chapter, a State shall, through its legislature, accept the provisions of this chapter and designate or authorize the creation of a State agency vested with all powers necessary to cooperate with the United States Employment Service under this chapter. (June 6, 1933, c. 49, sec. 4, 48 Stat. 114.)" 29 United States Code Annotated p. 14 of 1940 Cum. Ann. Pocket Part.
Section 44 of Chapter 17481, Acts of 1935, as amended by Chapter 18413, Acts of 1937, effective July 1, 1937, contains the following:
"(a) As a guide to the interpretation of this Act, the Legislature takes due notice of Federal Social and Labor Acts and hereby creates an agency to administer *Page 67 such Acts passed for the benefit of employees and employers in Florida industry, and desires to meet the requirements of such Federal Acts wherever not inconsistent with the Constitution and Laws of Florida.
"(b) There is hereby created the Florida Industrial Commission, to consist of the Workmen's Compensation Division and such other divisions as may be created by law. The Commission shall consist of a Chairman and two other members to be appointed by the Governor. . . .
"(c) Except as otherwise specifically provided the Florida Industrial Commission shall administer the provisions of this Act and for such purpose the Commission is authorized (1) to make such rules and regulations as may be necessary to effectuate the purposes of this Act; (2) to appoint and fix the compensation of such temporary technical assistants and medical and legal advisors, and, subject to existing laws regulating the selection, grading and compensation of employees of other State Departments, to appoint and fix the compensation of clerical assistants and other officers and employees; . . ." (Acts of 1937, p. 1367).
Chapter 18402, Acts of 1937, effective June 9, 1937, expressly repealed Chapter 17270, Acts of 1935, and contains the following:
"Section 11. Administrative Organization. — A. There are hereby created in the Florida Industrial Commission two coordinate divisions, the Florida State Employment Service division, created pursuant to Section 13 of this Act, and a division to be known as the Unemployment Compensation division, each of which shall be administered by a full-time salaried *Page 68 director, who shall be subject to the supervision and direction of the Commission. . . . The Commission is authorized to prescribe the duties of the director of the Unemployment Compensation Division and of the Florida State Employment Service.
"The Governor shall appoint the directors of the Unemployment Compensation Division and of the Florida State Employment Service. Such officers shall hold office at the will of the Governor. The Governor shall fix the compensation of such officers in a sum not exceeding $5,000 per year for their services, to be paid as the salaries of the employees under this Act are paid. . . .
"Section 12. A. Duties and Powers of Commission. — It shall be the duty of the Commission to administer this Act; and it shall have power and authority to adopt, amend, or rescind such rules and regulations, to employ such persons, make such investigations, and take such other action as it deems necessary or suitable to that end. Such rules and regulations shall be effective upon publication in the manner, not inconsistent with the provisions of this Act, which the Commission shall prescribe. . . .
"D. Personnel. — Subject to other provisions of this Act, the Commission is authorized to appoint, fix the compensation, and prescribe the duties and powers of such employees, accountants, attorneys, experts, and other persons as may be necessary in the performance of its duties under this Act; provided, however, the Commission shall pay no employee a monthly compensation exceeding $300. No person shall be employed by the Commission nor shall the Commission authorize the payment of any compensation to any person employed under this Act who has *Page 69 not been a resident of the State of Florida for at least five years immediately preceding his employment. The Commission may delegate to any person such power and authority as it deems reasonable and proper for the effective administration of this Act, and may in its discretion bond any person handling monies or signing checks hereunder, the cost of such bonds shall be paid from the unemployment compensation administration fund. The Commission shall classify positions under this Act and shall establish salary schedules and minimum personnel standards for the positions so classified. It shall provide for the holding of examinations to determine the qualifications of applicants for the positions so classified, and except for temporary appointments of not to exceed six months in duration, such personnel shall be appointed on the basis of efficiency and fitness as determined in such examinations. The Commission shall establish and enforce fair and reasonable regulations for appointments promotions, and demotions based upon ratings of efficiency and fitness and for terminations for cause." Par. D Sec. 12, 18402, Acts of 1937.)
"Section 13. State Employment Service. — A. The Florida State Employment Service is hereby established in the Florida Industrial Commission as a division with a separate administrative unit with respect to personnel, budget, and duties, except insofar as the Commission may find that such separation in local offices is impractical because of the small size of the territory served or of the volume of work done, which division shall be responsible for the discharge of its distinctive functions. The Commission, through such division, shall establish and maintain free public employment offices in such number and in such places *Page 70 as may be necessary for the proper administration of this Act and for the purposes of performing such duties as are within the purview of the Act of Congress entitled 'An Act to provide for the Establishment of a National Employment System and for Cooperation with the States in the promotion of such System, and for Other Purposes,' approved June 6, 1933 (48 Stat. 113; U.S.C. Tit. 29, Sec. 49 (c), as amended. It shall be the duty of the division to cooperate with any official or agency of the United States having power or duties under the provisions of the Act of Congress, as amended, and to do and perform all things necessary to secure to this State the benefits of said Act of Congress, as amended, in the promotion and maintenance of a system of public employment offices. The provisions of the said Act of Congress, as amended, are hereby accepted by this State, in conformity with section 4 of said Act, and this State will observe and comply with the requirements thereof. The Florida Industrial Commission is hereby designated and constituted the agency of this State for the purpose of said Act. The Commission is authorized and directed to appoint sufficient employees to carry out the purposes of this section."
Amended Regulation No. 6 referred to is quite lengthy and need not be quoted here.
The Constitution provides that:
"The legislature shall provide for the election by the people or appointment by the Governor of all State and County officers not otherwise provided for by this Constitution, and fix by law their duties and compensation." Sec. 27, Art. III.
The statute creates "the Florida State Employment Service division" in the Florida Industrial Commission *Page 71 "which shall be administered by a full-time salaried director." "The Governor shall appoint the director," who "shall hold office at the will of the Governor." For the prior law see Section 3, Chapter 17270, Acts of 1935, repealed by Section 22, Chapter 18402, Acts of 1935.
When the petitioner accepted appointment as Director by the Governor he took only the tenure that is specifically and separately prescribed by the statute which created the position of Director. Such tenure is "at will of the Governor." The statutory provisions for the appointment of a Director of the State Employment Service under the Florida Industrial Commission and the tenure of such Director are separate and distinct from other provisions of the statute and are complete in themselves without dependent reference to other provisions of the statute; and general provisions relating to the authority and duties of the Florida Industrial Commission are expressly made subject to other provisions of the statutes. See first lines in paragraphs (c) and (D), quoted above. Specific enactments of statutory provisions determine questions of policy involved in the enactments. Section 3 Chapter 17270 Acts of 1935, provides for the appointment of the Director of the Florida State Employment Service to be made by the administrative board, Chapter 18402 Acts of 1937, provides for the appointment of such Director by the Governor, and by Section 22 expressly repeals Chapter 17270.
It is in effect contended for the Petitioner that though the Florida statute provides that "the Governor shall appoint the Director of the Florida State Employment Service;" and that "such officer shall hold office at the will of the Governor," yet in view *Page 72 of other provisions of law "the Petitioner's tenure is by law during good behavior and the satisfactory performance of his duties as required by this service rating."
It is argued in support of the above contention that other statutory provisions than those quoted in the last preceding paragraph are based upon an Act of Congress approved June 6, 1933, Chapter 49, Section 4, 48 Statutes 114, Title29 U.S.C. Section 49c, and afford a basis for the contention made. Reference is made to Sections 12 and 13, Chapter 18402, Acts of 1937, above quoted, and to regulations adopted by the Florida Industrial Commission. Portions of Chapter 18413, Acts of 1937, above quoted, and the repeal of Chapter 17270, Acts of 1935, are also pertinent here. Such statutes relate to the duties of officers and of employees, to administrative matters, and to appointments of employees and other persons such as "temporary technical assistants and medical and legal advisors" and accountants "except as otherwise specifically provided" or "subject to other provisions of this Act," paragraphs (c) and (D), above quoted. Officers, members of the Commission, and the Directors are required by the statute Chapter 18402 to be appointed by the Governor. Chapter 18402, Acts of 1937, Section 22, expressly repealed Chapter 17270, Acts of 1935, which in its section provided otherwise for the appointment of a Director of the Florida State Employment Service.
The quoted Act of Congress does not purport to regulate the executive powers and duties of the Governor, or the tenure of any person appointed by the Governor under the Constitution and laws of the State of Florida; but the Act specifically provides that "to *Page 73 obtain the benefits of Federal appropriations" "a State shall, through its Legislature, accept the provisions of" the Act of Congress "and designate or authorize the creation of a State agency vested with all powers necessary to cooperate with the United States Employment Service under the" Act. Such provisions contemplate State actions pursuant to State powers.
The rules and regulations authorized by the statute to be adopted by the Florida Industrial Commission, a statutory administrative board, do not and cannot legally control or regulate appointments by the Governor or the tenure of such appointees under the constitution and laws of Florida. Such rules and regulations do not apply when it is "otherwise provided" in the Act, paragraph (c) quoted above, and are "subject to other provisions of this Act," paragraph (D), above quoted. The merit system operates under the statute but it does not affect the power to appoint or the tenure of those appointed by the Governor, under the express specificprovisions of the statute which create the position and fix the tenure of the appointee who accepts an appointment under the statute.
Though the Florida Industrial Commission may, within its statutory authority, regulate the duties of Directors of the State Employment Service, the Commission does not under the statute have authority to regulate appointments of such Directors or their tenure of service, when the statuteexpressly provides for appointment of them by the Governor and fixes their tenure, and also provides that the authority conferred on the Commission is "subject to other provisions of this Act." Paragraphs (c) and (D) above. *Page 74
The fact that a review by an administrative board was had of the executive order terminating the services of the Governor's appointee which is fixed by the statute to be "at the will of the Governor," does not control a judicial construction or interpretation of the entire statute under the constitution, as to the authority for such review, or afford authority to make such review by appeal or otherwise to the Merit System Council or to the Florida Industrial Commission.
The Director of the State Employment Service is expressly required to be appointed by the Governor, and the tenure of such Director is by the statute made to be "at the will of the Governor." There is no showing of a superior law changing or regulating the tenure of such Director; nor is such statutory tenure of the Director shown to be modified by anything in the statutes. General authority conferred upon the Florida Industrial Commission by the statute is expressly made subject to other specific statutory provisions for the appointment of and fixing the tenure of service of the Director of the State Employment Service. See par. (c), Sec. 44, Ch. 18413, and par. (D), Sec. 12, Ch. 18402, both being quoted above.
When the tenure of an appointee of the Governor is "at the will of the Governor," the appointee accepts subject to the expressed limitation of tenure, and the termination of such tenure by appropriate executive order of the Governor is not subject to review by an administrative board.
In this case the statute created the position of Director of the State Employment Service, required the Governor to appoint the Director, and specifically made the tenure to be "at the will of the Governor." *Page 75 The executive order of the Governor terminated the services of the Director as of a time certain, thereby causing a vacancy. The "appeal" taken from the Governor's order terminating the service of the Director whose tenure of office was "at the will of the Governor," was not authorized or contemplated by law in this class of cases and has no effect upon the executive order terminating the service of the then Director. The order of the Florida Industrial Commission dated May 23, 1941, quoted above, being unauthorized by law and purporting to be an official act, should be quashed on certiorari granted herein.
THOMAS, J., concurs.