The opinion
BROWN, C. J.,
concurring specially in the opinion of Mr. Justice TERRELL.
In the case at bar the petitioner is seeking by certiorari to have quashed an order of removal purporting to be based upon a statutory inquiry as to the factual basis for charges preferred against the director of the Employment Service Division of the Florida Industrial Commission. That order does not purport to be based upon anything else than the evidence produced before the statutory tribunal, which evidence, the petitioner contends, did not prove or sustain the charges thus preferred. A majority of this court, including the writer, are of the opinion that petitioner’s contention as to the insufficiency of the evidence is well founded and that it therefore becomes the duty of this Court to render a judgment quashing the order complained of. We might well stop here.
The Governor is not a party to this proceeding and, as I see it, we are not concerned here with what action he might take in the future. The record of proceed
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ings in this case as presented to this Court does not appear to have been predicated upon the theory of the power of removal at the will of the Governor, and I do not deem it necessary for this Court to rule upon that question at this time.
It is, however, contended that the submission of this matter to the Merit System Council was unauthorized and of no effect upon the theory that the clause in Section 11 of the Statute, to the effect that the director of the Employment Division is an “officer” and that the Governor shall appoint such director, and that such appointee shall hold the office at the will of the Governor, and that this provision is not modified by any other provisions in the statute and that for these reasons the Governor’s order of dismissal was final and absolute. To this I cannot agree.
In the first place, if we take this provision in Section 11 of the statute at its literal face value, it is unconstitutional and void. This Court has held that a statute providing that the Governor may appoint officers to hold office at the will of the Governor is unconstitutional and void, in that it is in violation of Art. XVI, Section 7, of the Constitution. See State ex rel Davis v. Botts, 101 Fla. 361 , 134 So. 219 . This decision.was rendered about fifteen years ago, and has never been overruled. I think it is a sound decision and should be adhered to.
So it appears that if we take this clause of the statute literally, just as it is worded, we would have to disregard it entirely, and consider it as stricken from the statute.
But when we come to consider the statute as a whole, I am of the opinion that, under our former decisions, the director of this employment division is
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really not an officer, within the meaning of the Constitution, but that his position is more nearly in the nature of an employment than an office. His duties and authority are not outlined or conferred directly by the statute. On the other hand, the statute provides that the duties of the director shall be prescribed by the Commission, and that his duties shall ■be performed under the supervision of the Commission. No part of the sovereign power of the State is granted to him by the statute itself. Thus under the statute, the director is a high grade employee, but an employee nevertheless, and hence not an officer. See State ex rel Holloway v. Sheats, 78 Fla. 583 , 83 So. 508 . In view of all this, and the ambiguous provision of Sec. 11 in so far as it pertains to the appointee to hold at the will of the Governor being of at least doubtful validity, it was, therefore, entirely appropriate that the director should be placed under the merit system, as was apparently done by agreement and consent of all parties concerned, as shown by the opinion of Mr. Justice Terrell in this case. See Section 12-B of the Statutes, also Section 12-A in this connection.
I concur therefore in the main with the opinion of Mr. Justice Terrell, and also with him and all the other members of the Court that the order brought before us for review must be quashed.