The State of Florida ex rel. Attorney-General, Relator, vs. Ansel B. Philips, Respondent, 30 Fla. 579

Mabry, J. : The motion for judgment of ouster will be treated in this case as a demurrer to the plea, or to the answer, as it is called in the pleadings. It will be noted that this is a proceeding in behalf of the people of the State, by the Attorney-General, and the information, in substance, alleges usurpation of the office of Municipal .judge of the city of St. Augustine by the respondent, A. B. Philips. It is alleged that said A. B.

Philips for thirteen days last past before the filing of the information had used, enjoyed, exercised and performed, and still does use, enjoy, exercise and perform, without warranty or authority, and in violation of the statutes of the State of Florida, the franchise, functions and powers of the office of Municipal Judge of the city of St. Augustine in this State. There are other allegations in the information, but they do not negative the averment recited, that the holding of said office by the respondent, A. B. Philips, is without authority of law, and hence a usurpation on his part.

The allegations of this information are sufficient to require him to show by what authority he enjoys ^the franchise, or performs the functions of said office, and as against the State he must show a complete and perfect right. State ex rel. Law vs. Saxon, 25 Fla., 342, 5 South. Rep., 801; Town of Enterprise vs. State ex rel. Attorney-General, 29 Fla., 128, 10 South. Rep., 740; High on Ex. Legal Remedies, secs. 712, 713; People ex rel. Larke vs. Crawford, 28 Mich., 88; Clark vs. People ex rel. Crane, 15 Ill., 213.

A reading of the return is sufficient to show that it does not exhibit a perfect right as against the State. Respondent bases his right to the office in question upon an election by the city council of the city of St. Augustine on the 22d day of June, A. 1). 1892, and his official notification of the same by the city clerk. The original charter of the city of St.

Augustine provides that “no person shall be eligible to any of said offices unless he be a registered voter of said city, and a resident thereof, for one year prior to his election,” and also that “no officer shall enter on his office until he shall have taken the oath of office faithfully to discharge the duties thereof.” The Municipal Judge of said city is included among the officers above mentioned.

As against the State, an election alone is not sufficient, but in order to make out a complete title to the office, it must be shown that all the requisites prescribed by law for the qualification of one to take possession of the office have been complied with by him. If eligibility to election can not be questioned after an election by a proper authority, it is clear that the person elected must, before entering upon his office, take the oath required by the charter.

There is nothing before us to show that respondent has complied with the statute in reference to his qualifications to hold the office of Municipal Judge, and hence, in this respect, he has failed to show a perfect right as against the State. The same legal obstacle is encountered in the way of letting W. A. Mac Williams into the office of Municipal Judge of said city, but- his failure to show a perfect right to the office does not aid the respondent in his claims thereto. It is incumbent upon the latter, as we have seen, to show a complete right in himself.

The pleadings before us involve the question of the power and authority of the city council of the city of St. Augustine to fill vacancies that majr happen in the office of Municipal J udge of said city, and as it is apparent to us that this controversy has grown out of a difference'of construction placed upon the acts of incorporation of said city in reference thereto, we will consider this question.

Section 1 of

Article 2 of the city charter of the city of St. Augustine, being

Chapter 8972, Laws of Florida, designates the officers in whom the government and administration of the said city shall be vested, and among them is the officer of Municipal Judge, whose term of office is expressly declared to be two years. The mayor and aldermen of said city are elected, in the manner provided in the charter, by the qualified electors of the city, but the Municipal Judge, as well as certain other officers, are elected by the city council.

Section 6 of

Article 3 of said charter provides that “at its second regular meeting after the election in -Line, 1889, the city council shall elect a city clerk, a marshal, a comptroller, a treasurer, a collector and assessor, a municipal judge of the municipal court, a commissioner of public works, and three police commissioners, one of whom shall be elected for one year, one for two years, and one for three years.

Thereafter at the second regular meeting of the city council, after the annual election, there shall be elected annually one police commissioner, and biennially a commissioner of public works, a city clerk, a marshal, a comptroller, treasurer, collector, assessor and judge of the municipal court. All elections by the city council shall be viva voce on the call of the roll.”

Section 3 provides that “all city officers except the mayor or policemen, unless, suspended or removed, or vacating their offices as herein provided, shall continue in office until their successors, are elected and qualified.” The 5th

section of

Article 4 provides that “the city council may appoint persons, to perform, temporarily, the duties of any absent, suspended or disabled city officer, and shall fill all vacancies in the city offices, including vacancies in the city council itself, until the next regular election, excepting however, the offices of mayor and policemen and subordinate officers herein otherwise provided for. In all cases appointment shall be only until the next annual elecf ion.” Filling a vacancy in the office of Municipal Judge is not otherwise provided for in the charter, and hence it is clear that the city council, by virtue of the fifth

section above recited, has the power and authority to fill vacancies that may occur in the office of Municipal Judge. This power to fill vacan cies is not derived from the first clause in said

section giving the council power to'j'hppoint persons to perform, temporarily, the duties of any absent, suspended or disabled city officei’,” but is included in the express grant that the council “shall fill all vacancies in th< city offices,” with the exceptions mentioned. It- is conceded in the record’ before us that the ci+y council of the city of St. Augustine, at its second regular meeting after the election in June, A. D. 1891, elected. M. R.

Cooper to the office of Municipal J udge of said city for the term of two years, from that date, and that he resigned said office, his resignation to take effect January 1st, A. D. 1892, and that it was. duly accepted by the city council. It was. then wdthin the power of the council to fill the vacancy caused by the resignation of Judge Cooper. Conceding that the council elected an eligible person to the vacant office, would his tenure extend only to the first election thereafter for any purpose in said city, or would he hold to the end of the term that had become vacant ?

No doubt would exist in a case where the office in which the vacancy has happened and which has been filled, expired at the time of the first election that thereafter takes place, but suppose a term of office that does not expire at the next annual election has become vacant before said election, does the filling of such vacancy terminate at the next election, or go to the end of the term?

Speaking in reference to the office of Municipal Judge under the original charter of said city, our construction is that when the city council elects an eligible person to fill a vacancy that has happened therein, he holds his office for the unexpired term, and until the next regular election for filling the office of Municipal Judge. When it is declared that the city council shall fill vacancies until the next regular election, it means until the next regular election provided by the charter for electing the officer whose term has become vacant. Under the charter of the city of St.

Augustine the term of office of Municipal Judge is two years, and it is clearly provided that this office shall be filled by the city council at its second regular meeting after the election in June, A. I). 1889, and biennially thereafter. If a vacancy occurs in this office it becomes the duty of the council to fill it, and when they legally do so,' the incumbent will hold until the expiration Of the two-year term that has become vacant. This construction we think is in harmony with the manifest purpose of the charter.

We are further of the opinion that the amendment of the charter, passed in 1.891, does not change in any respect the term of office, or the time of the election of Municipal Judge under the charter of said city.

Section 1 of the amendatory act, .being

Chapter 4091, Laws of Florida, provides that the government of said city shall be vested in the same officers mentioned in the charter with the exception of comptroller and commissioner of public works, but the term of office for some of the officers are different. On the subject of the tenure of office the

section is as follows: “The term of office of the mayor, aldermen and municipal judge shall be for two years, and those of the city clerk, assessor, collector, marshal and treasurer shall be for one year; the board of police commissioners shall be for. three years as hereinafter provided.” The sixth

section provides that “at its second regular meeting after the election in June of each year the city council shall elect a municipal judge, a city clerk, a marshal, a treasurer, a collector and an assessor, whose term of office shall be for one year, except the municipal judge, whose term shall be for two years, or until their successors are elected or appointed; all elections by the city council shall be viva voce on the call of the roll.” It is entirely clear that the amendatory act did not intend to chanp;e the two-year term for the office of Municipal Judge.

The evident; design, however, was to make some change in reference to the office of comptroller, and, probably, commissioner of public works, and also to change the term of office for the city clerk, marshal, treasurer, collector and assessor from two years to one, but it is expressly provided that the Municipal Judge shall hold his office for two years. The fact that the Municipal Judge is mentioned along with those who are to be elected at the second regular meeting after the election in June of each year, does not require that he be elected until the year in which his office expires.

To hold otherwise would make it necessary to elect the Municipal Judge annually, while his term of office is expressly declared to be two years, which was not intended. The act must be construed to mean that the council shall elect a Municipal Judge every two years, along with those officers who are to be elected at the second regular meeting after the election in June of each year. This construction also harmonizes with the clearly expressed purpose that the Municipal Judge shall hold his office for two years.

It will also be observed that while the name of Municipal Judge is mentioned with those to be elected at the second regular meeting after the election in June of each year, and whose terms of office are declared to be one year, there is an excejjtion as to this office, in the statute. We do not think that the sixth

section of the amendatory act was intended or must be construed to change the term or the time of electing a Municipal Judge for the city of ’ St. Augustine. From what is here said in reference to the power of the city council of the city of St. Augustine to fill vacancies in the office of Municipal Judge, it follows that if W. A. Mac Williams was duly elected to fill the vacancy in the office of Municipal Judge caused by the resignation of M. R.

Cooper, qualified as such, and entered upon and performed the duties of such office, it would not be competent for the city council to elect another person to said office until the expiration of the term for which Judge Cooper was elected. But upon the state of the pleadings before us it does not appear that W. A. Mac Williams is rightfully entitled to the said office of Municipal Judge. It is not alleged that he ever qualified as such judge, or in fact ever entered upon and performed the duties of said office.

The prayer of the information is that he be restored to the office of Municipal Judge of the city of St. Augustine, but it is not alleged that he is entitled to the office. The mere allegation of an election, as we have seen, is not sufficient. His election is called in question, as we understand, on the ground that no lection to fill a vacancy can take place until after the time when the vacancy takes effect. The election here was on the 29th day of December, 1891, and the resignation was to take effect on the first day of January, 1892.

We are not informed definitely when the resignation was tendered or accepted, and if it should be made to appear that a change in the council — the electing body — had taken place between the acceptance of the resignation of M. R. Cooper and the time when it was to take effect, a more important question might be presented, but from what we can see from the record no such change took place. It is, however, clear to us that W. A. MacWilliams is not shown to be entitled to be let into the office if he was duly elected to fill the term made vacant by the resignation of Judge Cooper.

The judgment of the court is that the demurrer must be sustained to the extent that the answer of respondent is insufficient, and shows no right to hold the office in question.