State Ex Rel. Davis v. Botts

Johnson, Circuit Judge: Tbe Attorney General of the State of Florida, on behalf of the State, has filed information in this Court in which he “gives the Court to understand and be informed that *362 Fred Botts, Esq., is usurping the office of assistant County Solicitor of the Criminal Court of Eecord of Dade County, Florida, pretending to do so under authority of a commission issued to him by the Governor of Florida, appointing him to hold said office “during the pleasure of the Governor”, under the pretended authority of Section 8249 of the Compiled General Laws of Florida, 1927. (Section 1 Chapter 10085, Acts of 1925, as amended by Chapter 11815, Acts 1927). Said information further giving the Court to here understand and be informed that the pretended appointment of the said Fred Botts to the said office of Assistant County Solicitor of the Criminal Court of Eecord of Dade County, Florida, to “hold during the pleasure of the Governor”, violates the Constitution of the State of Florida, and is null and void, and that the said Fred Botts usurps said office without lawful authority, and to the prejudice and wrong of the people of the State of Florida. The respondent, Fred Botts, files a general demurrer to the information; he also files an answer, and a motion for compulsory amendment to strike from said information certain unnecessary matter. The general demurrer puts in issue the questions of law to be determined in this case. The answer and motion to strike being directed to unnecessary matter contained in the information, can all be treated as surplusage. The information filed by the Attorney General raised two questions of law to be determined by this Court; First, Does the statute attacked, Section 8249 of the Compiled General Laws of Florida, 1927, same being Section 1 of Chapter 10085, Acts of 1925, as amended by Section 1 of Chapter 11815, Acts of 1927, create a public office, the incumbent of which is a public officer, and Second, Does the term or tenure of such office violate *363 the provisions of Section 7 of Article 16 of the Constitution of the State of Florida? Section 7 of Article 16 of the Constitution reads: “The Legislature shall not create any office, the term of which shall be longer than four years.” By analogy, this Court, in the case of STATE OF FLORIDA ex rel. West v. Butler, 70 Fla. 102 holding that there could be only one Circuit Judge in a judicial circuit, at that timé, there can be only one County Solicitor in a county where a Criminal Court of Record has been established. Section 8241 of thé Compiled General Laws of Florida, 1927, Section 9 of Chapter 3731, Acts 1887, provides that the prosecuting attorney of the criminal court of record shall be called the county solicitor. Section 27 of Article Five of the Constitution provides: “There shall be for each of said Courts (meaning Criminal Courts of Record) a prosecuting attorney, who shall be appointed by the Governor and confirmed by the Senate, and who shall hold office for four years.” Under this provision of the Constitution there can be only one prosecuting attorney, county solicitor, of a criminal court of record; one officer held responsible for a proper discharge of the duties of the office; one officer held liable, or responsible, for misconduct in the discharge of the duties of the office. It is recognized that by reason of the volume of business and the exigencies of the occasion a county solicitor might need assistants. This court, in the case of SEGARS V. STATE, 94 Fla. 1128, holds: “This does not necessarily mean that the Legislature could not provide for the appointment of assistants to the county solicitor in the performance of his work, in *364 the investigation and prosecution of cases in his court, etc., and provide for the payment of their compensation; but the county solicitor is the responsible officer by whose authority and under whose supervision his assistants must discharge their duties, and he it is in whose name the informations should run,.....” Chapter 10267, Acts of 1925; Section 4758 Compiled General Laws of Florida, 1927, provides for the appointment by the Governor of an assistant State Attorney in certain circuits. This act also provides: “and said assistant State attorneys are hereby vested with all the powers and shall discharge all the duties' of the State attorney under his direction. The term of office of said assistant State attorneys shall expire with that of the State attorney. Chapter 11830, Acts of 1927; Section 4759 Compiled General Laws of Florida, 1927, provides that the Governor, upon the recommendation of the State Attorney, shall appoint an assistant State attorney in certain judicial circuits. This act further provides: “The assistant State attorney so appointed shall be vested with all the powers and discharge all the duties of the State attorney under his direction and supervision. The term of office of such assistant State attorney shall expire with that of the State attorney of such circuit.” Under both of the Acts last above cited the office of assistant State attorney is created. The incumbents are charged with performing public official duties prescribed by law. The office and duties remain, though the incumbent dies or is changed. The provisions of the two Acts last above cited are entirely different from the provisions of Chapter 10292, Acts of 1925; Section 8253 Compiled General Laws of Florida; where it provides: *365 “In all counties having a population of eighty thousand or more according to the Federal census of 1920 or any Federal census subsequent thereto, the county solicitor of the criminal court of record therein MAY appoint not to exceed two assistants to such solicitor, and such assistants, when so appointed, shall hold during the pleasure of the county solicitor,” Under this last act cited the office is not continuing. It is left optional with the county solicitor as to whether the appointments shall be made. It appears to be the clear intention of the act that the volume of business and the exigencies of the occasion would control such appointments. The term of the appointment, or employment, would terminate at the will of the county solicitor, or, upon the expiration of the county solicitor’s term of office. In the case of the STATE OF FLORIDA, ex rel. Clyatt v. Hocker, Judge, 39 Fla. 477, this Court clearly and definitely states what it takes to constitute an office. In that case the Court said: “The various definitions and essential elements of the term “office”, as given in the cases cited, and others, is very aptly and correctly summarized as follows: The term “office” implies a delegation of a portion of the sovereign power to, and possession of, it by the person filling the office, a public office being an agency of the State, and the person whose duty it is to perform the agency being a public officer. The term embraces the idea of tenure, duration, emolument and duties, and has respect to a permanent public trust to be exercised in behalf of the government, and not to a merely transient, occasional or incidental employment. A person in the service of the government who derives his position from a duly and legally authorized election or appointment, whose duties are continuous in their nature and defined by rules prescribed by government, and *366 not by contract, consisting of the exercise of import-, ant public powers, trusts or duties, as a part of the regular administration of the government, THE PLACE AND THE DUTIES REMAINING, (Emphasis ours) though the incumbent dies or is changed, every office in the constitutional meaning of the term implying an authority to exercise some portion of the sovereign power, either in making, executing or administering the laws.” The Statute attacked in this case, Section 1 of Chapter’ 11815, Acts of 1927; being Section 8249 of the Compiled General Laws of Florida, provides: "That in all counties having a population of not less than One Hundred Thousand (100,000) and not more than One Hundred and Twenty Thousand (120,000) according to the last State census, the Governor of the ’ State of Florida shall appoint four (4) duly qualified citizens' of this State to serve as assistant county solicitors, who shall hold during the pleasure of the Governor.” This statute is objectional for a number of reasons: First. It creates containing offices without defining or fixing the terms of the officers who are to discharge the duties of the offices created. The statute doesn’t make it optional with the Governor as to whether he shall make the appointments or not. As the office of Governor is a continuing office the tenure of office of an appointee under this statute might be for one month or for forty years. Second. The assistant county solicitors appointed under this statute are not placed under the direction and supervision of the county solicitor. Third. They are independent and are not answerable to the county- solicitor for their official actions and conduct; neither could the county solicitor be held responsi *367 ble for their official action, or their misconduct, unless in the given instance they might be acting under his express orders. The Court holds that 'the office of Assistant County Solicitor, as provided for by Section 1 of Chapter 11815, Acts 1927; Section 8249 Compiled General Laws of Florida, 1927, is a public office, and that the appointees under the provisions of said act are public officers whose duties are prescribed by law. The Court further holds that the said office is a continuing office, and that the said act, by leaving the tenure of said office indeterminate, not fixing a constitutional term, violates the inhibitions of Section 7 of Article Sixteen of the Constitution of Florida. That the said Act is unconstitutional and void. The demurrer to the information is overruled. Whitfield, Ellis and Terrell, J.J., concur. Buford, C.J., concurs specially. Brown and Davis, J.J., disqualified.