State ex rel. J. C. Donnelly, Relator, vs. Henry R. Teasdale et al., Respondents, 21 Fla. 652

Mr. Justice Raney delivered the opinion of the court: 1st. The Mayor of a city is without doubt an “ officer of the city,” and may, under

section 15, page 248 of McClellan’s Digest, be expelled by “ two-thirds of the Council ” from his officefor disorderly behavior or malconduct in office.” It would be a hopeless task to attempt to show that he was neither a city officer, nor removable under the statute. It is not necessary that a city officer should be a member of the Council, to be so removable. 2d. There is under our judicial system no writ of error or appeal to any court from the action of a City Council expelling a city officer under this statute. The writ of mandamus is the only means of review or remedy for wrong in such cases.

We consider it settled in this State that in such cases the court granting the writ can and should look into the whole case, including the testimony and ascertain whether or not injustice has been done. State ex rel. vs. Kirke, 12 Fla., 278. The question to be disposed of is whether the.record discloses “ disorderly behavior or malconduct in office ” upon the part of the relator. In the charter of Jersey City, in the State of New Jersey, there was a provision authorizing the Common Council to-expel a member for “ disorderly conduct.” In the case of the State ex rel. Tyrrell vs.

The Common Council, 1st Dutcher’s Repts., 536, it was contended for the relator that the words last quoted covered only “ acts of turbulence, violence or disorderly conduct in the body and during the sessions of the Common Council.” The Supreme Court of that State held, however, that receiving bribes for his official influence and votes was disorderly conduct upon the part of a member within the meaning of the charter. The court say: “ But we are to construe the words in reference to the subject matter with which the Legislature was dealing when it used them.

They had reference to the conduct of a member of Council as such, not as a member of -the corporation, nor as a citizen, hut as a member of Council acting in his official character, no matter where or when. He who intrusted with official power violates his public obligations, and abuses the public conhdence by selling his official influence or vote in the body of which he is a member, is guilty of disorderly conduct of a far deeper dye than he who merely forgets the proprieties of official business and intercourse.

The violation of a rule of morals is a more heinous offence than the violation of a rule of order, as crime is more base and malignant than turbulence.

Any conduct which is contrary to .law is within the definition of disorderly conduct as given by standard lexicographers, and any gross violation of official duty on the part of a member of the Common Council is within the legal meaning of the words used in the charter.” The Constitution of the United States (Art. 1, §5, par. 2,) provides as to Congress that “ each House may * * punish its members for disorderly behavior, and with the concurrence of two-thirds expel a member.” “Under this power,” says the opinion above referred to, “ the Senate in .1797 expelled a member of ■ that ■ body for an'offence not committed in his official character.aTs ‘a 'member jnor-during a session of Congress, nor while the member was at the seat of government.

But it is not clear that the power to expel is limited by the Constitution to the cause of disorderly behavior, and .in that respect it differs from the language used in the charter of Jersey City.” By referring to the “Annals of Congress,” p. 43, vol. 1, we see that the member in question was expelled “ for having been guilty of a high misdemeanor entirely inconsistent with his pub-lie trust and duty as a Senator.” The conclusion of the report of the committee recommending such action indicates the character of his offending, and is as follows: “ But when they consider his attempt to seduce Carey from his duty as a faithful interpreter, and to employ him as an engine to alienate the affections and confidence of the Indians from the public officers of the United States residing among ■them; the measures he has proposed to excite a temper which must produce the recall or expulsion of our Superintendent from the Creek nation ; his insidious advice tending to the advancement of his own popularity and consequence, at the expense and hazard of the good opinion which the Indians entertain of this government, and the treaties subsisting between us and them, your committee have no doubt that Mr.

Blount’s conduct has been inconsistent with his public duty and renders him unworthy of a further continuance of his present public trust in this body and amounts to a high misdemeanor.” Both the report and resolution show that the expulsion was for conduct inconsistent- with his public trust and duty as a Senator, and amounting to a high misdemeanor and neither treats his conduct as mere “ disorderly behavior.” In Commonwealth vs. Guardian of the Poor, 6 S. & R., 473, it is said that the offences for which a corporate officer may be removed have been divided into three classes : 1st.

Such as relate to his corporate or official character amounting to breaches of the conditions tacitly or expresslv annexed to his office 2d." Such as have no immediate relation to his official character, but are in themselves of so infamous a nature as to render him unfit to enjoy any public office; 3d. Offences of a mixed nature, being not only against his corporate or official duty, but indictable at common law. See also 1st Dillon’s Municipal Corp., §251.

Judge Dillon says that in offences of the second class (as stated above) the removal can only be made after there has been a previous conviction in a court of law; but that in those of the first-class the corporation may try and if the charge is established remove, without any previous or other proceeding in the court, and that as to the third class the English Judges have differed as to the necessity of a prior conviction in a court of justice. Ibid, 251.

If we give the words “ disorderly behavior ” a wider meaning than that which the counsel for relator in the Jersey City case contended for, we still find nothing in the authorities which would extend them beyond either acts done in the particular official capacity, or inconsistent with official trust and duty, or amounting to a breach of the condition tacitly or expressly annexed to the office. "We do not find it necessary, however, in the case before us, to draw the line of distinction between “ disorderly behavior,” and “ malfeasance in office,” under our statute.

The appointment of Knight as a policeman, while not prudential, nor to be commended, cannot, we think, be held to be either disorderly behavior, or malconduct in office. There is nothing disqualifying him in law to be a policeman ; no violation by the mayor of any city ordinance éither as to Knight’s qualifications to be a policeman, nor as to the power of the mayor to make the appointment (if the latter point can be considered,) has been shown. We do not take judicial knowledge of city ordinances, and if any have been violated the burden was upon the city to show what they are, and the violation. Freeman vs.

State, 19 Fla., 552. It is not shown that the mayor, in making the appointment, had any purpose to violate his duty, or believed that Knight would make a bad or inefficient policeman, nor is there any complaint that Knight performed his duties as a policeman other than efficiently, or that any injury was intended or resulted to the city from such appointment. There is no proof that Donnelly knew Knight was a frequent disturber of the peace and good order of society, although he had, as mayor, fined Knight once for disturbing the peace.

Knowledge that Knight had violated the peace several times did not, of itself, render the appointment malfeasance in office, or disorderly behavior, nor did such violation of the peace ipso facto prove that the appointment was neeessarity a breach of the mayor’s official duty. The appointments made of Knight were but two, lasting but one day each.

Looking at what Donnelly did and the circumstances of his'action, we do not see any such willful or gross violation of official duty as should necessitate a removal from office. •The second specification is that the appointment of Knight was made while the latter was under arrest for a criminal offence, to wit: Knowingly and willfully offering and doing violence to an officer in the lawful execution of his legal duty. It is not alleged that the relator knew that Knight was under such ai’rest at the time he made the appointment.

Upon this, however, we are not disposed to put stress, in view of the disposition which has been manifested that the case should be considered on its merits. It is, moreover, a rule that in the charges in such cases the •technical nicety required in the indictment is not necessary. •1 Dillon, sec. 255. What is the evidence that Knight was under arrest for the offence alleged at the time he was appointed, or that, if he was so under arrest, the relator knew it ? The first appointment was on the 8th, and the second on the 9th day of May, of the present year.

On the 8th Perry resigned and Lassiter reported the fact to the mayor. An hour afterwards Knight reported to Lassiter, (whose testimony we are now stating,) that he, Knight, was on the police force, and showed to Lassiter the police badge he, Knight, was then wearing. Sheriff Zehnbar had arrested .■Knight for carrying concealed weapons, and rowing about and disturbing election at the polls on the day of election. The election, we may remark, was on the 5th of May. Witness made affidavit on which warrant was issued for the arrest of Knight.

On the cross-examination Lassiter says : “I did not arrest him; he was turned over to me by Sheriff Zehnbar; affidavit was made-by me :on the morning of the 8th of May before Judge Haughton.” Sheriff Zehnbar testifies that he does not recollect time exactly, but it was sometime about the election of the Constitutional Convention. Knight came to witness’ office, and demanded the pistol, which witness had taken from him the day he arrested “ him by order of the inspector of electionsaid to me he was a policeman; “ showed me the police badge which he was wearing, said he was appointed by Ur.

Donnelly, the Mayor.” Witness told him he could not have the pistol. Knight has been arrested on several occasions. He was arrested on charge of disturbing election for Constitutional Convention ; again, for carrying concealed weapons; and again, tor resisting officer. “ I had Knight in custody for disturbing election, carrying concealed weapons and resisting an officer. He was under arrest for these crimes on the 8th, 9th and 10th of May.’’ . A. Y.

Mount testified that Knight was on May 7th under arrest under’ a criminal charge. ' It. was, as he “ presumes,” for riotous proceedings and disorderly conduct at. the polls at the election on the 5th day of May. Lassiter’s testimony does not show that Knight was arrested or under arrest for the special offence alleged in the charge, (sec. 1, ch. 3276, Laws Florida,) nor can it be said that Zehnbar does. It does not go far enough. Mount speaks only as to the 7th of May, the day before the first appointment, and not as to. .the offence alleged.

There is no proof that the relator knew that any arrest had been made of Knight for the alleged offence when he made either appointment. We think it material that the testimony should have shown that Knight was under arrest for the particular of-fence alleged. In the absence of such a showing it is unnecessary to say anything as to whether such proof would have constituted disorderly behavior or malfeasance in ■office. The third specification is that the relator did endeavor to prevail on B. E.

Lassiter, on whose affidavit the warrant was issued for the arrest of Knight for the perpetration of ■said crime, to withdraw said prosecution. There is no proof that there was any affidavit made by Lassiter as to the alleged crime. This disposes of this feature of the case, yet we may remark that we hardly think the testimony •shows any endeavor amounting necessarily to disorderly behavior or malconduct in office. We think the testimony fails entirely to support the ■charges. The peremptory writ is granted.