Dubose v. Kelly , 132 Fla. 548 ( 1938 )

I cannot concur in the opinion prepared by Mr. Justice CHAPMAN.

An affidavit made and filed by twenty-five qualified electors of the city is a jurisdictional requirement as the basis for the circulation of recall petitions. An affidavit is not made unless an oath is administered by an officer duly authorized to administer oaths. Four of those who signed the alleged affidavits swore that they did not swear to the truth of the contents of the alleged affidavit before any officer authorized to administer oaths. The notary public who purported to have administered the oaths to the signers of the purported affidavit did not testify in the court below that he administered an oath to either of these four persons. The administration of and the making of an oath is a solemn matter and is not accomplished by the mere signing of a paper writing, to which a jurat is attached. There must be also the administration of an oath by a duly authorized officer and a taking and making of such oath by the affiant.

The testimony given by Mr. Keller in the court below was not sufficient to overcome the positive evidence given by the subscribers that they did not make oath to the truth of the contents of the purported affidavits.

We are definitely committed to the doctrine that a public officer has a property right in his office and cannot be deprived of it without due process of law. (State, ex rel. Hatton, v. Joughin, 103 Fla. 877, 138 So. 2d 392) and also that officers may invoke judicial proceedings to protect their rights. See State,ex rel. Landis, v. Tedder, 106 Fla. 140, 143 So. 2d 148.

We are also definitely committed to the doctrine that the recall statutes must be strictly complied with. Platt v. Ross,112 Fla. 596, 150 So. 2d 716.

I think that the contention that there must be a separate petition as to each of the officers sought to be recalled is well founded because the recall affects the property right of each officer in the office held by him and it is elementary that the property right of one individual may not be determined by the property right of another individual where all have different rights affecting different properties. So it is that although the statute is amenable to the construction placed upon it in the majority opinion, to give it that construction would be to violate the protection of due process. For instance, a qualified elector might be so convinced that John Doe should be recalled from office, that to procure Doe's recall he would sign a petition which would also authorize an election for the recall of Richard Roe when he believed that Richard Roe should not be recalled and, therefore, would make it possible to have an election for the recall of Richard Roe when Richard Roe had done nothing to forfeit his property rights in the office held by him.

In the case of State, ex rel. Brown, et al., v. Howell, et al.,134 Tenn. 93, 183 S.W. 571, the Supreme Court of Tennessee said:

"The petition signed by voters constitutes so to speak, the pleading or indictment initiatory to remove an official. It should be directed against a single individual for the reason, first as we think, that it is so contemplated by the act of the Legislature granting this remedy in the city charter. The Act starts out with the provision that the mayor or any commissioner elected by the people under the terms and provisions of this Act may be removed from such office by the qualified voters of the city. All the way through it grants authority to proceed against an officer sought to be removed, and nowhere indicates that the method may be proceeded with against a number of officials jointly. See Priv. Act 1913, ch. 22, Sec. 32.

"The impropriety and injustice of proceeding against a number of persons in one petition is manifest. It is subject to objection on the ground that a voter, when presented with the petition, must judge as to the question of whether he shall ask for a removal of a number of men or else submit to the retention in office of all. He is not given the clear-cut right to pass on each individual and exercise his own individual judgment as to that particular person. The fact that the petition stated the same cause of removal against all does not cure it of this objection. The voter ought to have the right to judge singly against each officer if he so desires. The Legislature evidently so intended.

"The same right to exercise independent judgment on each separate official must exist in the initiatory step of removal, as effectively as that the voter may so exercise at the ballot box his right and duty to elect a new official or recall an old one. As well might it be said that the voter shall be compelled to vote for a number of men jointly and be denied the right to vote as to each one singly, as to say he may not judge of the propriety of holding in office each individual official who had been previously elected.

"The official also should have the right to be judged alone by his fellow citizens as to his own merits or demerits. That the law-making body so intended in providing the recall, we have no doubt. To construe it otherwise would be to attribute to the Legislature the enactment of an unwise and intolerable law."

It is true that the statute under which the recall was proposed indicated that the recall petition should apply to a single officer but the reasoning of the court shows that it should be applied to a single officer although the statute might be amenable to another construction. In that case the Court further said:

"We have been furnished with no citation showing that any State has permitted the practice of including in the petition for recall a number of officials to be considered jointly."

The manifest injustice and violation of due process has been so clear that it appears no other state has attempted to authorize recall petitions to include the name of more than one officer. In McCush v. Pratt, etc., 113 Wash. 7, the same reasoning was followed as that enunciated by the Tennessee court.

To like effect is the case of Bricker v. Banks, as City Clerk,et al., 98 Cal. Appellate Reports 87.

So it is my opinion that the statutes here involved must be construed to require a separate petition applying to each officer sought to be recalled and that to include all officers sought to be recalled or several officers sought to be recalled, in one petition as definitely violates the due process clauses of the State and Federal Constitutions as they would be violated by the attempt to require the elector to vote for or against the recall of two or more officers by one vote and not allowing each officer to be judged separately on his merits or demerits. Each of the officers involved has an individual separate right of property of which he is sought to be deprived and any procedure which commingles his right to enjoy that property right with the right of another to enjoy a property right vested in that other must be deemed a violation of the constitutional rights of both.

Perhaps it is true that if the temporary restraining order had been granted and the proponents of the recall had been required to start over and to proceed in accordance with the statutes in such cases made and provided the result in the end would have been the same. But, we are dealing with questions of law and not with political results and we are determining property rights and dealing with the procedure by which one may in conformity with constitutional rights be deprived of the same.

To have granted the temporary restraining order would not have deprived the proponents of the recall from proceeding lawfully in the effort to deprive the officers involved of their respective offices. But to deny the restraining order allows the proponents of the recall to proceed against the officers in such a manner as to, within the range of probability, deprive one or more of such officers of his property rights in the office because of conditions for which he was in nowise responsible and which were chargeable only to other officers who might be named in the same petition for recall with him.

Therefore, I think, for the reasons stated, the restraining order should have been granted.