Opinion
March 25, 1952.
Appeal from the Circuit Court, Dade County, William A. Herin, J.
Robert L. Achor, Miami, for appellant.
Cushman, Gay Woodard, Miami, for appellee.
The appellee on April 2, 1951, filed a complaint seeking relief against Lewis M. Schott, as Director of the State Beverage Department of the State of Florida. He alleged that he was appointed as Supervisor of the State Beverage Department by Fuller Warren, as Governor, on April 1, 1949, to hold "said office" at the pleasure of the Governor, at a salary of $200 per month. He alleged that he was never discharged as such Supervisor by the Governor but that the defendant (Schott, as Director), refused to permit him to continue to exercise the duties of his "office" and refused to pay him any further salary to which he was entitled.
He prayed that the Court decree that the action of Schott was unlawful and that he was entitled to receive all of the pay and emoluments from "said office" from June 29, 1949, to the date of the Court's decree, etc.
The appellant answered the bill and alleged that the appellee had been lawfully discharged and also filed a motion to dismiss and an amended motion to dismiss. After further proceedings and requests for admissions, interrogatories and answers thereto, and an affidavit filed by Fuller Warren, as Governor, upon motion for a summary judgment a decree was entered in which it was found and decreed that the appellee was appointed by Fuller Warren, as Governor of the State of Florida, as a Supervisor of the State Beverage Department to hold "office" at the pleasure of the Governor, and that he continued to discharge the duties of the said office until June 29, 1949; that the appellee was not discharged by Fuller Warren, as Governor; that at the time the suit was filed appellee was a duly appointed and qualified Supervisor and was entitled to all of the rights, privileges, pay and emoluments of "said office" from June 29, 1949, to and including the date of the decree; and that appellee's "term", as Supervisor for the State, had never been lawfully terminated from the time of his appointment.
The important sections of the statute controlling this situation are Sections 561.05, 561.06 and 561.11. Section 561.05 was Section (1) of Chapter 23746, Laws of Florida, 1947, and Section 561.06 and Section 561.11 were Sections (3) and (4), respectively, of Chapter 22663, Laws of Florida, 1945.
Section 561.05 provides that the Director shall be appointed by the Governor; he is the head of the department; extraordinary and discretionary powers are vested in him, such as those provided for by Section 561.29 to revoke licenses.
Section 561.11, F.S.A. should be read in connection with other provisions of the statute and particularly, Section 561.07, F.S.A.
The first question necessary to determine in this case is whether or not supervisors are officers or mere employees. State ex rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508, is controlling in this case. There is no power or authority vested in supervisors which would indicate a legislative intent that they should be officers of the state. It is unnecessary to detail here the requirements necessary to make supervisors state officers. It is clear that they are "employees" and "assistants", and the fact that they may be named supervisors does not change this status.
It should be noted that under Section 561.11 it is provided: "The director by and with the approval and consent of the governor shall have the power to employ such employees and assistants as may be necessary for the proper operation of the beverage department".
There was filed in this case an affidavit from the Governor which was before the Court below as a part of the record at the hearing on the motion for a summary judgment. This affidavit contained the following:
"That by authority vested in me as Governor of the State of Florida, on January 5, 1949, I appointed Lewis M. Schott as Director of the State Beverage Department in and for the State of Florida, and the said Lewis M. Schott has held said public office and discharged the duties thereof continuously since that date.
"That as Director of the State Beverage Department the said Lewis M. Schott possesses the authority granted by me as my deputy in the appointment of supervisors of the State Beverage Department and other employees thereof, and in the discharging of such supervisors and other employees.
"The appointment of Edward R. Lynch as a supervisor with the State Beverage Department during the year 1949, and his subsequent discharge from said position by my deputy Lewis M. Schott was never within my personal knowledge until the said Edward R. Lynch so informed me sometime during the year 1950."
When the Governor granted authority to the Director to appoint supervisors (employees and assistants) and also to discharge "such supervisors and other employees", he gave his "consent and approval" to the Director, not only to appoint the appellee, but also to discharge him.
The Governor of the State of Florida has many and multitudinous duties to perform. It would be an unreasonable construction to place upon Section 561.11 to say that every time an employee or an assistant of the Beverage Department was to be appointed, employed, or discharged, it would be necessary to bring it to the personal attention of the Governor and obtain his approval and consent in each case.
Acting under the authority of Section 561.05 the Governor appointed a Director of the Beverage Department, and acting under the authority of Section 561.11, the Governor gave his approval and consent to the Director to appoint (employ) supervisors of the Department and "other employees thereof", and to discharge "such supervisors and other employees".
The complaint filed by the appellee prayed for a decree that he was "entitled to receive all of the pay and emoluments of said office from June, 1949". The final decree adjudged and decreed that the appellee "is entitled to all the rights, privileges, pay and emoluments of the said office from June 29, 1949," etc. The decree was against Lewis M. Schott, as Director for the Beverage Department of the State of Florida.
Reversed.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS and HOBSON, JJ., and PARKS, Associate Justice, concur.