stating that allegations in a suspension order need not be as “specific as the allegations of an indictment or information in a criminal prosecution”
How later courts described this case
- stating that allegations in a suspension order need not be as “specific as the allegations of an indictment or information in a criminal prosecution”
- upholding the suspension order of - 10 - a solicitor that cited his “neglect of duty in office” based on his decision not to prosecute certain gambling cases
- finding it a neglect of duty “to knowingly permit [criminal conduct] and prefer no charges therefor”
Written by the judges who cited it.
The opinion
Whitfield, J.
(concurring). — The Constitution provides that:
“All officers that shall have been appointed or elected, and that are not liable to impeachment, may be suspended from office by the Governor for malfeasance, or misfeasance or neglect of duty in office, for the commission of any felony, or for drunkenness or incompetency,, and the cause of suspension shall be communicated to the officer suspended and to the Senate at its next session. And the Governor, by and with the consent of the Senate, may remove any officer not liable to impeachment, for any cause above named. Every suspension shall continue until the adjournment of the next session of the Senate, unless the officer suspended shall, upon the recommendation of the Governor, be removed; but the Governor may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against him are untrue. If the Senate shall refuse to remove, or fail to take action before its adjournment, the officer suspended shall resume the duties of the office. The Governor shall have power to fill by appointment any office, the incumbent of which has been suspended. * * Sec. ■15, Art. IV.
The power vested in the Governor in the above quoted section of the State Constitution to suspend all appointed or elected officers who are not subject to impeachment, is an explicit executive power; and when the Governor in making a suspension'order acts within his authority.as stated in the
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Constitution, his action may not be reviewed by the courts. State,
ex rel.
Holland, v. Ledwith, 14 Fla. 220 ; State,
ex rel.,
v. Johnson, 30 Fla. 433, 499 , 11 So. 845 , 18 L. R. A. 410. This general rule, however, is modified by the qualification that as such exercise of power affects the lawful rights of the individual officer, the jurisdictional facts, i. e. the matters and things stated in the order of suspension on which the executive grounds his cause of removal, may be considered by the courts to the extent of determining whether the facts stated have some reasonable relation to a constitutional ground of suspension. State,
ex rel.,
v. Coleman, 115 Fla. 119 , 155 So. 129 ; State,
ex rel.,
v. Henry, 60 Fla. 246 , 53 So. 742 .
When the validity of an executive order of suspension from office is challenged in the courts, if the order of suspension from office states one or more of the constitutional grounds as the cause for such suspension and supports the charge with allegations of fact having “some reasonable relation” to the constitutional ground or cause of the suspension, the order may be deemed sufficient to show that the Governor acted within the power of suspension expressly conferred upon him by the Constitution; and the courts have no authority to consider the probative sufficiency of the evidentiary or other matters on which the Governor acted in making the order of suspension. It is not necessary that the allegations of fact contained in the executive order as a basis of the suspension from office, be as definite and specific as the allegations of an information or an indictment in a criminal prosecution. The order of suspension is an executive order that under the Constitution is expressly made subject to review only by the Senate; and if the order as a whole contains allegations that bear “some reasonable relation” to the charge on a constitutional ground made
*887
against the officer, it will be adjudged as sufficient. State,
ex rel.,
v. Coleman,
supra.
The evidence before the Governor is not required to be made a part of the order of suspension.
“All reasonable intendments will be indulged in to support the sufficiency of the challenged acts of the Executive.” State,
ex rel.
Joughin, 107 Fla. 850 , 145 So. 174 .
The courts have no authority by interpretation to add to or modify explicit provisions of the State Constitution that do not conflict with paramount Federal powers.
When the officer accepted the office, it was accepted with the qualification that he could be suspended from office by the Governor upon the grounds stated in the Constitution.
“If he is deprived of his office in accordance with the conditions of the Constitution and by the power which had this right, then he is not deprived of his property without due process of law, but according to law.” State,
ex rel.,
v. Ledwith, 14 Fla. 220, 223 .
The current cycle period of the four-year term of office of the county solicitor of the Criminal Court of Record for Hillsborough County began April 11, 1933, and from June 1, 1935, to July 7,- 1936, the said office was filled by a commission duly issued to the relator.
The periods of time and dates referred to in the allegations of the executive suspension order in stating facts having relation to the charge of “neglect of duty in office” by the relator, were during the four-year term of the office beginning April 11, 1933, and such periods and dates were in part within the time from June 1, 1935, to July 7, 1936, during which time the relator held a commission to perform the duties of the said office until he was suspended from office by the Governor, July 7, 1936. The allegations
*888
oí the executive order of suspension manifestly and obviously have direct and substantial, reasonable relation to the charge of neglect of duty in office stated in the suspension order. The Constitution makes the State Senate, and not the court, the tribunal to review executive orders of suspension from office. State,
ex rel.,
v. Johnson, 30 Fla. 433 , 11 So. 845 ; and when the suspension order states an executive finding that the officer is guilty of a charge based upon a constitutional ground of suspension, coupled with allegations of fact having some reasonable relation to the constitutional ground, of suspension from office upon which the Executive finding and order of suspension were predicated, the court has no authority to nullify the executive order. State,
ex rel.,
v. Coleman,
supra.
The Constitution provides that:
“The cause of suspension shall be communicated to the officer suspended and to the Senate at its next session.”
This provision requires the charge as made and the evidence upon which the suspension order was made, to be communicated to the Senate which alone may review the charge and the evidence in determining, under Section 15 of Article IV of the Constitution, whether the suspended officer shall be removed from office upon the charges made and the recommendation of the Governor, or whether no action shall be taken on the Executive suspension.
No question of Executive control of, or interference with, the discretionary authority of the county solicitor- in the discharge of his -official duties, is involved. The terms of the Constitution authorize an executive suspension from office of a prosecuting officer of the Criminal Court of Record upon stated grounds, and provision is made for a review of the suspension by the Senate. This excludes review by the courts of an executive order of suspension from
*889
office, except to determine whether the Executive order states findings of facts having reasonable relation to a ground of suspension from officfe that is expressly stated in the Constitution. Whether the facts stated in the suspension order justified the suspension from office is for the Senate, not the court, to determine. State,
ex rel.,
v. Johnson,
supra;
State,
ex rel.,
v. Coleman,
supra.
Brown, J., concurs.