Hammond v. Curry

Officer L.G. Hammond was found guilty by the Director of Public Safety and dismissed and discharged from the service of the City on four charges preferred by the Chief of Police in writing, as follows:

"(1) You were guilty of conduct unbecoming an officer of the Division of Police in that on Saturday night, May 9, 1942, between the hours of 9:30 P.M. and 11:30 P.M., at one or more places on Biscayne Boulevard between N.E. 5th Street and East Flagler Street and at one or more places on East Flagler Street between Biscayne Boulevard and N.E. 2nd Avenue, Miami, Florida, you made without just cause or provocation indecent and lewd proposals to one . . . and molested and continued to molest and to make such indecent and lewd proposals to said . . . without just cause or provocation.

"(2) You exceeded your authority as a police officer in the Division of Police in that you placed said . . . under arrest without just cause or provocation on Saturday, May 9, 1942, at or about 11:30 o'clock P.M., at or near the intersection of N.E. 2nd Avenue and Flagler Street in the City of Miami, Florida.

"(3) You were guilty of gross neglect of your duty as a police officer in the Division of Police in that after bringing about the arrest of said . . . as hereinbefore described, you made an investigation into her character and reputation, and, although you were informed that said . . . Was a young woman of good character and reputation and could not have been a prostitute, for which reason you had placed her under arrest, you took no action to bring about her release from custody but continued to prosecute her in the Municipal Court of the City of Miami without just cause or provocation.

"(4) You were guilty of conduct unbecoming an officer of the Division of Police in that subsequent to the arrest of said . . . at or about 11:30 P.M. on May 9th, 1942, as hereinabove set forth, and subsequent to your investigation into her character and reputation, as hereinbefore set forth, you wrote a statement which charged said . . . with being a prostitute and which stated that if she would be willing to leave the City of Miami she should be released from custody."

My construction of the statutes referred to in the majority opinion prepared by Mr. Justice Thomas and of the decisions of this Court therein cited, leads me to the conclusion that there is no conflict between the enunciations in the Nelson case and those in the Bryan case and others of like import which were cited in the Bryan case. As I construe these opinions and judgments, we have uniformly held that "Jurisdictionalfacts" must be shown and not that allegations of "jurisdictional cause" only is required. Nelson v. Lindsey,10 So. 2d 131, 151 Fla. 596; Bryan v. Landis ex rel. Reave,142 So. 650, 106 Fla. 19; State v. Joughin, 138 So. 392, 103 Fla. 877;

There is a vast difference between the two propositions. If the establishments of jurisdictional facts rests upon conflicting evidence, then the courts may not weigh the probative force pro and con of such evidence, but if there is an utter failure to allege jurisdictional cause or an utter failure to prove the alleged conduct which would establish the required jurisdictional facts, the courts may so determine. Gretton v. City of Pittsburg, 25A.2d 351, 344 Pa. 219; Singer v. Graves, 4 N.Y.S.2d 318, 254 A.D. 37; Gipner v. State Civil Service Comm. of Cal., 56 P.2d 535, 13 2d Cal. App. 100; 43 C.J. Secs. 1366, 1367, 1374 46 C.J. Secs. 173, 174; 19 R.C.L. Sec. 233.

The very purpose of the establishment of civil service regulations by statute is to protect officers and employees from demotion, suspension or removal, except for specified cause after not only written sufficient charge with the opportunity granted to be heard but also only after proof of such charges. Jurisdictional facts are not established until a charge of misconduct sufficient to constitute jurisdictional cause is made and the charge so made is proved by some substantial evidence or admitted to be true. Garvin v. Chambers, 232 P. 696, 195 Cal. 212; Anderson v. Bd. of Civil Service Comm'rs. of Des Moines, 290 N.W. 493; 227 Iowa 1164, 127 A.L.R. 489; Howard v. Bell County Bd. of Education, 57 S.W.2d 466, 247 Ky. 586.

The courts, when properly appealed to, may review the record to determine whether or not jurisdictional facts are made to appear therefrom and if on review it appears that jurisdictional cause is alleged then due process of law has been observed, and if the proof submitted may reasonably be construed to establish the truth of the jurisdictional allegations, then the jurisdictional facts appear to be present and the court may go no further. Bryan v. Landis, supra; State ex rel. Nelson v. Henry, 266 N.W. 227; 221 Wis. 127; Coane v. Geary, 18 N.E.2d 719; 298 Ill. App. 199; 43 C.J. Sec. 1130.

The rights to such review by the courts arises because of the existence and application of the Civil Service Statutes. Were the rights and duties not fixed by statute, the courts would be without jurisdiction to review or grant relief, because then the municipality could fix and enforce its own rules and regulations in regard to hiring and discharging employees.

We certainly do not fall short of rendering highest regard for pure womanhood, but here we are dealing with the discharge of duty by a police officer and not with the defense of feminine virtue. This must be true because all people are equal before the law and are entitled to like protection of the law.

This police officer was charged with the specific duty of apprehending a woman who was plying the trade of a prostitute. The description given him by his superior officer of the woman whom he was ordered to apprehend was completely and in minutest detail reflected in the young woman accosted. Her appearance and her conduct as reflected by the record before us, without contradiction, was such as to have caused any careful and experienced officer to believe that she was the woman whom his superior officer had directed him to apprehend.

If this officer had been given as minute a description of bank robber and had contacted a man who as fully fitted that description as this woman did the description of the prostitute whom he was directed to apprehend, and that man so contacted had refused to give any information about himself as this woman did refuse to do, the officer certainly would have been justified in pursuing such course as would appear to a prudent officer reasonably necessary to determine whether or not the man so contacted was in fact the robber.

We, after careful consideration of the record, are unable to find any material evidence to support the charges (1) and (2).

Charges (3) and (4), however, find some support in the record tending to prove the allegation of fact contained in those charges, and upon such evidence it became the duty of the Director of Public Safety to determine whether or not the action of the police officer in this regard was without just cause or provocation; in the exercise of the discretion vested in the Director of Public Safety he not only determined and adjudged that the police officer was guilty of doing things alleged in those two charges, but also determined that the police officer did those things without just cause or provocation.

The burden was then upon the petitioner in the court below to clearly show that the Director of Public Safety in reaching and pronouncing the judgment abused his discretion.

The Court cannot reach the conclusion that the officer vested with the exercise of discretion has abused that discretion merely because the Court, on consideration of the record, would have reached a different conclusion. See cases last cited, supra.

It is elementary that this Court should not reverse the court below unless it is made clearly to appear that the court below committed error. The appellant has not carried that burden in regard to the judgment entered on charges (3) and (4).

For these reasons we think the judgment should be affirmed.

BROWN and SEBRING, J.J., concur in conclusion.