Watson v. Centro Espanol De Tampa , 158 Fla. 796 ( 1947 )

I concur in that part of the opinion and judgment as prepared by Mr. Justice Terrell which sustains the petition filed in the court below praying for a declaratory decree and judgment. I dissent from that part of the opinion and judgment holding that a court of equity has the power to enjoin and restrain the County Solicitor of Hillsborough County, Florida, from proceeding in the prosecution of the respondent for violating the criminal laws of Florida. Section 27 of Article V of the Constitution of Florida creates or establishes the office of County Solicitor. Section 28 of Article V of the Florida Constitution provides that the County Solicitor shall prosecute all offenses triable in the Criminal Court of Record of Hillsborough County upon information. Section 2 of Article XVI of the Florida Constitution prescribes the form of oath that shall be taken by the State and County officials, and in part is viz: "I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution and Government of the United States and the State of Florida; that I am qualified to hold office under the Constitution of the State and I will well and faithfully perform the duties of __________ on which I am about to enter. So help me God."

We have in an unbroken chain of decisions held that a court of equity will not enter a restraining order where the complaining party has a full, adequate and complete remedy at law. Chapter 458, Fla. Stats. 1941 (FSA) does not, in my opinion, change this rule. It is my opinion that the sworn constitutional duty of the County Solicitor is to prosecute all persons for the violation of all criminal cases arising in Hillsborough County of which the Criminal Court of Record has jurisdiction.

I think the petition for certiorari should be granted in part, and that portion of the challenged order restraining the County Solicitor of Hillsborough County from prosecuting the respondent should be quashed. I think the petition for certiorari otherwise should be denied. I concur in the opinion as prepared by Mr. Justice Terrell, with the modifications above set forth.