Opinion
March 16, 1951.
Appeal from the Circuit Court for Palm Beach County, C.E. Chillingworth, J.
Paty, Warwick Paul, West Palm Beach, for appellant.
Drew, Burns, Middleton Rogers and C. Robert Burns, West Palm Beach, for City of West Palm Beach.
Jordan Johnson, Ernest Metcalf and M.D. Carmichael, West Palm Beach, for Richard M. Allshire.
The appellee, City of West Palm Beach, filed a bill for declaratory decree because of a situation arising from the death of its chief of police. The charter contains the provision that should such official die "the senior officer in the police department * * * shall act as chief of police * * * until another chief of police is elected * * *." (Italics supplied.) Sec. 4(21) (i), Chap. 24981, Sp. Acts 1947.
There were four officers in the department with the rank of lieutenant, the highest rank next to that of chief. We shall hereafter refer to the two of these who had served the longest in that position.
Inasmuch as there will be no general election for many months and no provision is contained in the charter for a special election, the designation of the man who was "senior officer" at the time the chief of police passed away and who is to perform the duties of that important office until the election is held is a matter of grave concern to the appellee city and its citizens. Of course the practical effect of the decision will determine a controversy, actual or potential, between the appellant, Lieutenant Lockleer, and the appellee, Lieutenant Allshire.
Both became lieutenants the same day, and both have served continuously in that capacity since, while their services in lesser capacities vary. Lieutenant Allshire was a member of the department from November, 1925, until April, 1928, and from January, 1931, until the present time, while Lieutenant Lockleer has been a member of the department since 1936. The appellee city asked the court to decide which of these was the "senior officer" at the time the chief of police died and therefore should act as such until a successor was elected. The chancellor answered the question in a summary decree by naming Lieutenant Allshire, the one who had longer been a member of the department.
At the outset it seems to us fitting to clear away certain factors that are urged by the appellant as favoring his claim. He places some reliance on the fact that he received a higher grade than Allshire in the fitness test conducted by the Board of Civil Service preparatory to listing sergeants who were eligible for promotion to the rank of lieutenant. We agree with the chancellor that there was no advantage in securing the higher grade because the chief of police had the discretion of promoting those shown to be proficient by passing the test, regardless of the grade, and he exercised it by nominating both Allshire and Lockleer. Right there the matter of relative grades seems to us to have become inconsequential.
Nor do we attach any importance to the action of the chief of police shown by the pleadings to have been taken when he retired to his home because of the illness that proved fatal. He told Lockleer to act for him, but that could have no bearing on what should now be done. He was chief of police until he expired, and he had no authority under the charter either to designate some one to perform his duties for him while he lived or to carry on should he die. Responsibility and power of the head of the police department are of the utmost importance and seriousness, and certainly they cannot be translated from one person to another save in the formal manner set out in the city charter. The minute the chief passed on, the mantle fell from his shoulders to those of the senior officer, and the identity of that individual must be determined by construction of the charter provisions, regardless of the attitude of the predecessor, uncertain though those provisions may be. That the lieutenant chosen informally by the chief still undertakes to perform the duties of the place adds no strength whatever to his claim.
The chancellor came to the conclusion that since both the lieutenants became eligible for advancement at the same time and both had been actually appointed lieutenants on the same day and the seniority had not been dependent on any difference in grades, the man longest in service in the police department had the advantage; and he therefore named Lieutenant Allshire. From our study of the record and the chancellor's reasoning we have concluded that it was entirely logical and that there is no occasion to disturb it.
The appellant has challenged the appropriateness of the statute providing for declaratory decrees in a situation like this. It is his contention that thus to use the remedy, where "such vacancy is filled by operation of law by the senior officer in the Police Department, and * * * a lieutenant [Lockleer] * * * is acting and * * * another lieutenant [Allshire] * * * is claiming the right" so to act, is but an attempt to substitute the remedy for quo warranto.
We have quoted from the question appellant poses in his brief and have supplied the italics. The very fact that, as the question suggests, two men lay claim to the post only emphasizes the importance of appealing to the courts for interpretation of the city charter. The predominent concerns are the welfare of the citizens and the proper functioning of an important department of the city government, not the contest between two men who are both qualified to act. Obviously the question whether the law operated to the advantage of the appellant or the appellee Allshire is so debatable as to justify a decision by the courts, and we think, as the circuit judge thought, that any doubt about the identity of the person clothed with the powers of a chief of police should be dispelled as quickly as possible, for the good of the public.
The claim of the appellant to the office so far as it may be based on anything the chief of police may have done or said prior to his death is so tenuous, the statuses of himself and the appellee Allshire so indistinct because of the similarity of service and the identicalness of rank, and the charter provisions covering the succession in the event of the death of the chief of police are so inadequate that we think it was proper for the city to appeal to the courts for a definition of its rights and its power in the circumstances. This would be accomplished by a judicial determination of who automatically succeeded to the headship of the department. As we have said, the removal of this doubt in the interest of the city and the people transcends any claim of one lieutenant against the other.
It seems to this writer that this is an appropriate instance for recourse by the city to the remedy of a declaratory decree, the welfare of the community being the important consideration and the fortunes of Allshire and Lockleer being purely incidental.
In any event, the statute, Section 87.12, Florida Statutes 1941, and F.S.A., expressly provides that "The existence of another adequate remedy shall not preclude a decree * * * for declaratory relief." So, even though the remedy of quo warranto might be invoked to decide the right of Lockleer to hold the office, it would not preclude the city from seeking a determination of its rights under the declaratory procedure.
The statute, Section 87.01, provides that "The circuit courts may render declaratory decrees * * * as to the existence * * * Of any * * * power * * * or * * * any fact upon which the existence * * * of such * * * power * * * may depend * * *," also, in Section 87.02, that "Any person * * * whose rights, status or other equitable or legal relations are affected by a statute * * * may have determined any question of construction or validity arising under such statute * * * and obtain a declaration of rights, status" and so forth. Of course the law is, by Section 87.13, applicable to municipal corporations, and we have the view that the quoted provisions entitle the city to an adjudication of its rights to act and to function through the police department because of the obvious doubt growing out of the inadequacy of a statute, that is, the city charter, as to who shall direct the activities of that particular department.
Certainly the municipal corporation acts and exercises its powers through its officers. It now asks the court who shall direct the police department in the performance of very important functions in the name and on behalf of the municipality.
We conclude that the statute was available to the city as such.
We think our comment has disposed of all questions presented by the appellant except the challenge of the court's order that the appellee, Lieutenant Allshire, not only act as chief of police but receive the salary of that office. We do not find any reason to interfere with the ruling. If he is to assume the responsibilities and perform the duties of that office, it seems only reasonable that he should receive the corresponding compensation.
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.