State v. Allen , 126 Fla. 878 ( 1937 )

The relator, C. Jay Hardee, filed an information in quo warranto in this Court challenging the right of LeRoy Allen to hold the office of solicitor of the Criminal Court of Record of Hillsborough County. Alternative writ was issued to which a demurrer and motion to quash have been entered and the cause now comes on for disposition on the issue so made.

It is agreed that C. Jay Hardee was appointed solicitor of the Criminal Court of Record for Hillsborough County, April 1, 1934, pending the suspension of Morris M. Givens, that at its 1935 session the said suspension of Morris M. Givens was agreed to by the Senate, and on June 1, 1935, C.J. Hardee was again appointed and commissioned to the same office by the Governor. It is further agreed that C.J. Hardee performed the duties of said office until July 7, 1936, when he was suspended by the Governor, the order of suspension omitting formal parts, being as follows:

"Whereas, it has been officially made to appear and upon evidence produced before me, I do find that C. Jay Hardee, Solicitor of the Criminal Court of Record of Hillsborough County, State of Florida, is guilty of Neglect of Duty in Office, in this, to-wit:

"That gambling during the years 1934 and 1935, reached its peak and was the worst in the history of Hillsborough County, having been carried on in all parts of the City of Tampa in said county, including the residential portions of the said City.

"That during the year 1934, from April 1st, to the end of the year, there were seven informations filed charging gambling and during the year 1935 no informations were filed charging gambling in any form; that two of the above referred to informations were filed in December, 1934, as a result of a raid at the Panama Cafe led by City Officers directed and requested by the said C. Jay Hardee as Solicitor of the Criminal Court of Record of said County, and no trials have been had upon said informations, that subsequent to the raid aforementioned, and during the year 1934, the said Solicitor led another raid upon the said Panama Cafe, at which time gambling was seen in actual operation by the said Solicitor and officers of the Sheriff's office of said County, and no information has been filed as a result of said raid; that the excuse offered by the said Solicitor for not filing an information in said case was that the evidence obtained in said raid was obtained without a search warrant, yet the law provides that when a crime is committed in the presence of an officer no search warrant is necessary; that the same excuse was offered by the said Solicitor for failure to prosecute under the two informations filed by him.

"NOW, THEREFORE, I, David Sholtz, Governor of the State of Florida, by virtue of the power and authority vested in me by Article Four, Section Fifteen, of the Constitution of the State of Florida, have suspended and do hereby suspend the said C. Jay Hardee, Solicitor of the Criminal Court of Record of Hillsborough County, State of Florida, until the adjournment of the next session of the Senate, upon the grounds of Neglect of Duty in Office, and the said C. Jay Hardee is prohibited from performing the duties or exercising the function of said office for the period aforesaid."

It is first contended that said order of suspension is devoid of jurisdictional facts sufficient to support any ground for which the Governor is authorized under the Constitution to suspend.

Section Fifteen of Article Four of the Constitution authorizes the Governor to suspend any officer not liable to impeachment for malfeasance, misfeasance, neglect of duty in office, the commission of a felony, drunkenness, or incompetency, all such suspensions to be reported to the next session of the Senate. If the Senate refuses to consent to the suspension the officer suspended automatically goes back into office, but if the Senate agrees to the suspension it becomes final.

It is conceded that the law of this case is settled by State,ex rel. Hardie, v. Coleman, 115 Fla. 119, 155 So. 129. In the case last cited we held that the sufficiency of an order of suspension, being one affecting the rights of individuals, the courts may determine the sufficiency of the jurisdictional facts on which the Governor rests his action, but they (the courts) have no authority to determine the sufficiency of the evidence to support the grounds of suspension, that being a function solely for the Senate under such rules as it may prescribe.

We also held in Hardie v. Coleman, supra, that if the order of suspension names one or more of the grounds embraced in the Constitution and supports it with alleged facts sufficient to constitute the ground named it is sufficient. It is not necessary that the allegation of fact be as specific as the allegations of an indictment or information in a criminal prosecution. Being reviewable by the Senate, if it contains allegations that bear some reasonable relation to the charge made against the officer suspended it will be held sufficient.

With the rule thus approved in Hardie v. Coleman, supra, as a guide, let us examine the executive order here quoted. The suspension of relator is grounded solely on "neglect of duty in office," one of the grounds named in Section Fifteen of Article Four of the Constitution. It is supported by allegation to the effect that in 1934 and 1935, gambling in Hillsborough County reached its peak, that in 1934 only seven informations were filed by relator charging gambling in said county, and that in 1935, no informations were filed by him charging gambling, that two of the informations filed in 1934 resulted from raids on the Panama Cafe requested by C. Jay Hardee in which gambling was seen carried on by the said C. Jay Hardee and the sheriff and his deputies, that no trials have been held under any of these informations and the reason given therefor by the solicitor was that the evidence in support of them was procured without a search warrant and was consequently not admissible.

Anything embraced in the order of an evidentiary character was gratuitous and had no place there, as the character, sufficiency, weight, and all things pertaining to the evidence were questions for the Senate, with which the Court has no concern. The charge made for suspension was one named in the Constitution, to knowingly permit gambling and prefer no charges therefor was a neglect of duty, and the allegations with reference to gambling certainly had some reasonable relation to the charge made against the solicitor. We express no opinion as to the weight or sufficiency of anything of an evidentiary nature in the order of suspension. This and the range the evidence may take under the charge are matters for the Senate with which we are without power to interfere.

It is next contended that the acts for which relator was suspended were committed at a time prior to the date of the beginning of his current term (during which he was suspended) and being so the Governor was without power to suspend.

To support this contention relator relies on In Re: Advisory Opinion to the Governor, reported in 64 Fla. 168, 60 So. 337, wherein we held that the power given the Governor to suspend an officer for malfeasance or misfeasance and to fill the vacancy thus caused by appointment is necessarily confined to the current term or that for which he is then in commission. He cannot, in other words, reach back and suspend him for something that took place in a prior term, an election or new appointment having intervened.

A term of office has reference to that fixed by law and not that named in a commission or fixed by the Governor. State, exrel. Landis, v. Bird and Viney, 120 Fla. 780, 163 So. 248. It appears that the current term of office of the solicitor of the Criminal Court of Record for Hillsborough County began April 11, 1933, and will, therefore, end April 11, 1937. The relator was consequently serving a portion of the same term under the commission issued to him June 1, 1935, so some facts with which he is charged occurred in and during the term in which he served until he was suspended July 7, 1936. This doctrine is of course on the assumption that the term of office of solicitor of the Criminal Court of Record runs in cycles as we have repeatedly held.

But even if this were not the case, relator's contention can avail him nothing. His duty to prosecute violations of the law continues until the offense committed is barred by the statute of limitations and if he goes out of office that duty devolves on his successor. The holding of this Court in the Advisory Opinion to the Governor, supra, relied on by relator, to the effect that one cannot be suspended during his current term for an offense committed in a previous term has reference to finished offenses known and condoned by election or appointment, but can have no reference to matters arising from the neglect of a continuing duty of an officer during the time in a current term he holds a commission to discharge the duties of the office.

For the reasons so stated the motion to quash is sustained.

It is so ordered.

WHITFIELD, TERRELL and BROWN, J.J., concur.

ELLIS, C.J., and DAVIS, J., dissent.

BUFORD, J., not participating.