# State v. Allen

> Supreme Court of Florida · January 19, 1937 · 126 Fla. 878

URL: https://www.frixlaw.com/law-library/cases/3393207

## Case

- **Full name:** State, Ex Rel. C. Jay Hardee v. Leroy Allen.
- **Court:** Supreme Court of Florida
- **Decided:** January 19, 1937
- **Citations:** 126 Fla. 878; 172 So. 222
- **Precedential status:** Published
- **Opinion:** Dissent by Davis
- **Judges:** Whitfield, Terrell, Brown, Ellis, Davis, Buford
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3393207

## How later opinions describe it (automated extraction)

- stating that allegations in a suspension order need not be as “specific as the allegations of an indictment or information in a criminal prosecution”
- finding it a neglect of duty “to knowingly permit [criminal conduct] and prefer no charges therefor”

## Opinion text

Davis, J.
(dissenting). — This Court has definitely committed itself to the doctrine that when an officer is elected for'a new term (or is appointed by the Governor and confirmed by the Senate) and a new commission issued to him, that such officer may not be suspended pursuant to Section 15 of Article IV for causes arising prior to- the commission held by the officer at the time of the suspension. See: Advisory Opinion to Governor Gilchrist, 64 Fla. 168 , 60 Sou. Rep. 337 .
It has been held that the executive order of suspension must set forth facts that bear a reasonable relation .to the charges upon which the officer is attempted to be suspended, and that to this extent, the executive order of suspension is susceptible to judicial review to determine whether a constitutional cause has been assigned by the Governor as cause for removal. State,
ex rel.
Hardie, v. Coleman, 115 Fla. 119 , 155 Sou. Rep. 129 ; State,
ex rel.
Bridges, v. Henry, 60 Fla. 246 , 53 Sou. Rep. 742 .
In this case we have before the Court two men claiming commissions of appointment from the same Governor covering the same term of office. Hardee has been appointed and confirmed by the Senate. Allen has been appointed pursuant to the pretended authority of an executive sus
*895
pension of Hardee from office under Section 15 of Article IV of the Constitution. We thus have a judicial controversy determinable in quo warranto, which this Court is required to decide, at least to the extent of determining which of the two outstanding commissions carries with it title to the office for the term covered by the two commissions that are in conflict. So there is no judicial interference by the Supreme Court with an.executive power of the Governor because the authority of the Governor has been completely exercised in the issuance of the two commissions involved, only one of which can constitutionally be outstanding at the same time for the identical term of office.
To assert, as does the majority opinion, that, under the “cycle” theory, the term of office of a removed, suspended or deceased officer continues to run notwithstanding the removal, suspension or decease of the' incumbent and the naming and confirmation of the Governor’s appointee as the successor to such removed, suspended or deceased officer, is to assert' that there may be two terms of office running together, although the office can be filled by but one person, a proposition that on its face is untenable. Board of Chosen Freeholders of Atlantic County v. Lee, 76 N. J. 327, 70 Atl. Rep. 925 .
The Governor, in my opinion, has no power under Section 15 of Article IV of the Constitution to suspend, nor has the Senate any power to remove, a public officer for official acts or neglects done prior to his current term of office in which the suspension or removal is attempted. When the people have elected a man to office, or the Governor has appointed and the Senate confirmed, an appointee to an appointive office, it must be assumed that the election or appointment was made with knowledge of the officer’s life and character,
*896
and conduct in office, prior and until the time his new term begins, and that the people, or the appointing power representing the people, have decided to disregard or forgive such officer’s faults, if he has been guilty of any. Conant v. Grogan, 6 N. Y. St. Rep. 322. This rule disposes of all. neglects of duty charged against Hardee prior to June 1, 1935, the date his present term of office commenced.
A county Solicitor is empowered by the Constitution to act as a “one-man” grand jury. His duties are quasi-judicial in nature, and he should preserve his status and character as an impartial investigating officer charged with the responsibility of instituting criminal prosecutions against citizens for only such causes as warrant the filing and bringing to trial of the serious accusations of felony, where felonies are involved. See Sec. 8257 C. G. L., Washington v. State, 86 Fla. 533 , 98 So. 605 .
A county' Solicitor is in no sense a county detective nor vested with the right to usurp the powers of the local sheriff and policemen as enforcement officers by ferreting out supposed crimes and prosecuting them on his own knowledge. Should he undertake to step outside of his character as an impartial representative of the government in acting as its official accuser, he would become subject to challenge as disqualified, just-as members of a grand jury may be-, come disqualified when they cease to stand impartial as disinterested investigators, by assuming to become prosecutors or complainants. See: Howell v. State, 102 Fla. 612 , 136 Sou. Rep. 456 ; O. B. White v. State, 126 Fla. 760 , 171 Sou. Rep. 809 .
The Governor in making his executive order of suspension dated July 7, 1936, charged Solicitor Hardee with neglect of duty with respect to his accusatory functions, merely because Hardee, as County Solicitor exercised his judicial
*897
discretion in a particular way not satisfactory to the Governor. In so doing he misapprehended the true meaning and intent of the constitutional provision empowering him to suspend from office for neglect of duty, and therefore in my opinion the order of suspension is invalid as against Hardee’s outstanding commission to hold the office for the balance of the term for which he was appointed by the Governor and confirmed by the 1935 Senate.
The courts have no power to review the judgments and findings of a Grand Jury, or substitute accusatory officer, and certainly the Governor has no right to exercise judicial powers in that regard.
To hold otherwise is to imply a power in' the Governor’s office to select the names of particular citizens who shall be indicted, and to use his executive powers under Section 15 of Article IV to coerce prosecuting officers vested with the judicial discretion and power to file informations in lieu of indictments, to institute such criminal prosecutions as the Governor may direct, also suffer the penalty of dismissal from office on a charge of neglect of duty for not carrying out the Governor’s orders to indict those selected for executive prosecution.
Such power has never been considered as being vested in any English King since the time of King John. Nor has it ever been invested in any Chief Executive of 'an American commonwealth' under any system of constitutional law we have ever lived under.
Yet in accordance with the majority holding, such is now about to become the declared law of the State of Florida, inasmuch as no prosecutor can henceforth fail or neglect to file informations against any citizen whom the Chief Executive of this State may select and order to be arrested, informed against and brought to trial under penalty of sus
*898
pension from office of the prosecutor for neglect of duty should the prosecutor in his sound judicial judgment decide-not to proceed against the designated citizen, or refuse to1 stultify himself by falsely swearing to an unfounded criminal information that is in legal effect nothing more nor less.' than the indictment of a one-man grand jury and therefore required to be based upon something to warrant it other than the mere executive wish or whimsey of the Governor.
In counties where Criminal Courts of Record are established County Solicitors occupy the, status, and perform the functions of, a one-man Grand Jury. The Grand Jury was brought into existence as ai barrier against persecution in the King’s name prior to the setting up of the American Government. It was retained in the United States as an institution for the protection of the citizens against unfounded accusations, whether they should come from the government itself, or be prompted by partisan passion or private enmity. In vesting substitute powers in a “one-man” Grand Jury in particular counties of this State, the people who adopted our Bill of Rights never intended that such “one-man” Grand Jury (The County Solicitor) should exercise one whit less discretion, nor be deprived in any respect of the freedom of judgment, that rests in a Grand Jury composed of more than one man.
The Governor of this State admittedly has no power to remove or suspend a Grand Jury from its functions, merely because such Grand Jury fails to indict supposed offenders the Governor may think should be brought to trial on charges of felony. Is it reasonable or sound to assume that the Legislature, by the mere passage of a statute establishing a Criminal Court of Record in a particular county thereby abolishes the whole scheme of government for the protection of citizens from unsubstantial prosecutions for alleged fel
*899
onies, by making the citizen subject to the Governor’s power to coerce County Solicitors to file informations against him in the Criminal Court of Record, upon-any less evidentiary considerations than his case would be controlled by, were a common law Grand Jury, instead of a “one-man” Grand Jury (County Solicitor) directed to investigate it with a view to criminal prosecution?
The constitutional powers of the Courts constitute the ultimate safeguard alike of individual privilege and of government prerogative. It is clear beyond all need of exposition,' that it is indispensable that there should be' some
non-political
forum in which the rights of the people shall bé impartially debated free from any consideration save a sound interpretation and application of the law. The Criminal Courts of Record, no less than the Circuit Courts, are such forums and the Solicitors of Criminal Courts of Record should be no more ámenable to executive coercion in the exercise of their accusatory powers than are Grand Juries in counties where no Criminal Courts of Record exist.
Nor is it any answer to say that the Governor is not to be presumed to unwisely or unconstitutionally exercise his powers to coercion if we acknowledge them to exist. The refutation of any such idea is found in the Constitution itself which is a living monument to the distrust the people have in their rulers when it comes to the exercise of unlimited and unreviewáble powers of any kind that infringe upon the rights of citizens to be free from restraints on their freedom such as might be occasioned by prosecutions for felony instituted on any consideration other than an evidentiary one,
judicially
decided, either by a Grand Jury or a County Solicitor acting in the same manner as a Grand
*900
Jury and clothed with all its immunities from executive coercion.
My view of this case coincides with that of the Supreme Court of the United States in the case of Rathbun v. United States, 295 U. S. 602 , 79 L. Ed. 1611 , 55 Sup. Ct. Rep. 869, wherein the Court said in denying the President of the United States the illimitable power to remove an officer with respect to judicial or quasi-judicial functions:
“For it is quite evident that one who' holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will.”
No County Solicitor of this State (nor for that matter no Judge of a Criminal Court of Record in this State) can be depended upon to maintain an attitude of judicial independence against the executive will of the Governor with respect to institution and conduct of criminal prosecutions, or the refusal to institute and prosecute criminal cases the facts of which do not warrant prosecution in the judicial or quasi-judicial opinion of these officers, if an interpretation is put on Section 15 of Article IV of the Constitution that remits the affected County Solicitor or Criminal Court Judge solely to the State Senate, a politically motivated and not a judicially controlled body for protection of his independence of judicial judgment to decide who shall be, and who shall not be informed against, arrested and prosecuted for felony in Criminal Courts of Record in this State.
It was conceded by respondent’s counsel at the oral argument before the bar of this Court that every alleged neglect of duty charged by the Governor in his order of July 7, 1936, as ground for suspension of Solicitor Hardee from office, involves a matter of discretion on the part of said Hardee as to whether or not certain criminal prosecutions
*901
should, or should not be, brought in Hillsborough County on Hardee’s official oath and responsibility as a one-man grand jury. Hardee has not been charged by the Governor with incompetency in office, so he must be assumed to be competent. He has not been suspended by the Governor for drunkenness, nor malfeasance in office, so he must be deemed to be both sober and honest.
Thus the case now before us for consideration may be otherwise stated as the simple proposition: “Does the Governor of Florida have authority to suspend a County Solicitor (one-man grand jury) from office for failure to file or prosecute informations (substitute indictments) against those whom he, as an admittedly competent, sober and honest County Solicitor vested with the same judicial discretion in the matter of preferring, or not preferring, felony accusations as is possessed by a Grand Jury, has in his sound judgment and discretion decided should not be informed against (indicted) or brought to trial, either because of insufficient evidence to convict, or because he cannot conscientiously make the oath of evidentiary fact required to support the validity of a criminal information for felony?” The majority of the Court apparently hold in the affirmative. I hold in the negative.
I have the highest rgeard and respect for the Governor who made the executive order involved in this case. But a consideration of the far reaching implication of the legal principles necessarily inherent in the predicate upon which it is vested, leaves me no alternative but to record my dissent in the hope that the majority opinion will in the future be modified, if not overruled, when more mature reflection demonstrates its unsoundness.
Buford, J.
(not participating in hearing for reasons stated). — I shall not participate in the hearing of this case
*902
because I think that when the Court assumed to take jurisdiction of the matter it thereby encroached upon the prerogatives, powers and duties of the Executive, Branch of the Government and entered a field where the Judicial Branch of the Government is prohibited by the Constitution to function, unless requested so to do by the Chief Executive, and for the further reason that I think by taking affirmative action the Court would encroach upon the prerogatives vested by the Constitution in the State Senate. It cannot be doubted that it is the duty of the County Solicitor to prosecute the crimes referred to in the order of suspension. When a prosecuting officer refuses to prosecute criminal acts committed within his jurisdiction there may be a good and valid reason for such refusal or failure, while on the other hand such refusal or failure may constitute a gross neglect of duty. In this case whether the failure to prosecute was justifiable or constituted a neglect of duty is a question for the Senate and the Senate alone to determine.
In State v. Joughin, 103 Fla.
877,
138 Sou. 393 , we held:
“The power vested in the Governor to suspend an officer under Section 15, Article IV, of the Constitution is executive. It is in no sense judicial or quasi-judicial.”
In the case of State v. Johnson, 30 Fla. 433 , 11 Sou. 845 , it was held:
“1. The Governor has power, under Section 15 of the executive article of the Constitution, when acting within the authority there conferred, to hear and decide as to the existence of any alleged neglect of duty in office as a ground for suspending an officer. This authority, whether judicial or administrative in its nature, is vested by the Constituany'other branch of the government.’ In State,
ex rel.
At
*903
ment, and does not appertain to, and cannot be exercised by, the courts.
“3. So long as the Governor’s action in suspending an officer is within the limits of his constitutional power, the courts cannot interfere to arrest his action. He is the exclusive judge, in so far as the courts are concerned, of the sufficiency of the proof of the charge, not merely because the courts have been given no power of review, but for the further reason that the Senate, a branch of the legislative department, has been granted such power.”
The opinion in that case was written by Mr. Chief Justice Raney. It is an exhaustive and well reasoned opinion and in it we find the following:
“The authorities are all to the effect that a grant of the power to remove, either for cause or at discretion, carries with it the exclusive power to hear and decide; and whereas the courts are entirely powerless where the power is discretionary, they are equally so where it is for cause, if the grantee of the power acts within its limits, and upon notice, if notice is required; if the removal is for a cause designated by or following within the grant, the grantee or depositary of the removing power is the sole judge of the sufficiency of the evidence to justify the removal. That such is the case where the power is discretionary, is settled by this Court in State,
ex rel.
Holland, v. Ledwith, 14 Fla. 220 . In State,
ex rel.,
v. Doherty,
25 L.
Ann. 119, where the executive power of removing the officer was ‘for refusing or failing to do his duty as prescribed by this Act,’ it was said: ‘The grant of power to the Executive to remove an officer for a certain cause implies authority to judge of the existence of the cause. The power vested exclusively in executive discretion cannot be controlled in its exercise by any other branch of the government.’ It State,
ex rel.
At
*904
torney General, v. Hawkins, 44 Ohio St. 98 , the decision was that where charges embodying facts which, in judgment of law, constitute official misconduct, are preferred to the Governor, of which notice is given the members charged, and he acting upon the charges so made removes them from office, his action is final and cannot be reviewed or held for naught by the courts on a proceeding in
quo
warranto, whether he erred or not in exercising the power conferred upon him. And in Keenan v. Perry, 24 Texas 253 , where the Governor was given power of removal for certain enumerated causes, the decision was that no principle is more firmly established' than that where a special and exclusive authority is delegated to' any tribunal or officer of the government, and no mode of revising his decision by appeal or otherwise is provided by law, his action is final and conclusive of the matter, and the law makes him the sole judge of the existence of the cause of removal. Dixon, C. J., speaking for the Court in State,
ex
rel., v. McGarry, 21 Wis. 496 , a
quo warranto
proceeding where a statute gave a board of supervisors power to remove for incompetency, improper conduct or other cause satisfactory to such board, said, ‘We are clearly of opinion that the power of the board is absolute and its determination final when acting within the scope of the power. The board may remove for incompetency, improper conduct or other cause
satisfactory
to the board.”
Later in that same opinion the writer said:
“And though this power of suspension might have been bestowed without any right of hearing in the officer, or with the right of hearing before there could be any exercise of power, neither course has been pursued. The provision that the Governor ‘may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against
*905
him are untrue’ was not intended to merely give an arbitrary or willful discretion to the Executive to make inquiry or not as might please a caprice or a prejudice, but it was both to impose upon him the duty of hearing evidence upon the charge and to secure to the suspended officer the constitutional right to be heard by the Governor upon the charges which the latter has communicated to him upon suspending him. It is as much the duty of the Governor on suspending an officer to notify him of the cause of the suspension, or charge upon which he has been suspended as it is to suspend when the facts of a particular case, viewed in the light of public weal, demand removal; or as it is to refuse to suspend when they do not seem to demand removal or to reinstate when under a misapprehension he may have erroneously suspended an officer. By this provision last quoted above the officer’s right to a hearing has been postponed till after the suspension. This is one of the conditions upon which he accepts the office, and it is as obligatory upon him as are those as to age, residence or bond, or any other which the Constitution or any valid statute may prescribe. That a Governor may give notice of the charges before suspension does not defeat the plain policy of the Constitution, not to require him to do so, nor does it relieve him from the specific duties imposed by that instrument in this matter. It cannot be denied that there may be cases in which the public interest would suffer grievous detriment by postponing the suspension till after the hearing. The hearing contemplated, though its regulation is left to the Chief Executive (at-least until the law-making power shall act) is' a full and fair hearing and often will take much time. It is always to be presumed that he will not hesitate to reinstate at any time, at least in the recess of the Senate, where it may be shown that he has erred in the act of sus
*906
pension. This is, of course, a consideration which the people have confided to the conscience of the Executive under his responsibility to them, yet it is patent that the exercise of the executive power to reinstate implies the status of suspension in the officer.
“In reaching this conclusion we have not omitted to give serious consideration to the officer’s property rights in his office; the right to its .tenure and the enjoyment of its profits and honors against all unlawful invasion. Of course, he is a public agent or servant, and has no such title to his office as prevents the power which gave it from terminating it or changing it. He holds subject to the law of the land as to its termination, modification and as to suspension or removal therefrom. State,
ex rel.,
v. Ledwith, State,
ex rel.,
v. Hawkins, Sweeney v. Stevens, and Donahue v. County of Will,
supra;
Taft v. Adams, 3 Gray 127 . So long as the Governor acts within the limits of his power the courts are powerless. The Constitution has made the Senate the sole check upon any erroneous action on his part. Any mere error of judgment, whether free from or attended by improper motive is beyond our cognizance, and not merely because, as in most of the adjudicated cases there has been given no power to any tribunal to correct or arrest the effect of his error, but for the reason that a branch of the legislative department has been given that express power.”
It is true that this Court has heretofore assumed jurisdiction in several cases of this sort, among which was that of State,
ex rel.
Bridges, v. Henry, 60 Fla. 246 , 53 Sou 742, in which case this Court reversed'the Circuit Court in which the late Honorable John W. Malone had entered an order denying the prayer of an information in the nature of quo warranto and refusing to-issue writ of quo warranto, and
*907
in which he stated as reason for his refusal to grant the writ:
“And the Court, being of the opinion that the Judiciary is without jurisdiction to review the” action of the Governor and the Senate complained of in said information.”
In that case this Court held:
“Removal from office being authorized only for certain causes, the court may inquire into the existence of the jurisdictional facts; that is, whether the facts upon which the removing power acted were legal cause for removal.”
Mr. Justice Shackleford dissented and wrote an opinion embracing his reasons for dissent. I think that the conclusion of the Circuit Judge in that case was the correct one and that what was said by this Court in that case should now be overruled, unless the Court wishes to perpetuate the error which was then committed.
For the reasons above stated, I recorded my vote against issuing the rule
nisi
in this case and I now record my position as being against the Court taking any further affirmative action in the matter.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3393207. Public record. Not legal advice.