I am unable to agree with my colleagues, Justices WHITFIELD and TERRELL, in the conclusion at which they have arrived in this case, and the views expressed by Mr. Justice BUFORD and the reasons given for his non-participation in this case. I do agree with the conclusion reached by Mr. Justice DAVIS, but am unable to concur in the opinion and argument which he offers to support it.
C.J. Hardee was appointed solicitor of the Criminal Court of Record for Hillsborough County on June 1, 1935, to hold office until April 11, 1937. He was suspended from office by executive order dated July 7, 1936, and he filed in this Court an information in the nature of quo warranto against LeRoy Allen, who was by executive order appointed to succeed him, to test the authority by which the latter occupies the office of solicitor of the Criminal Court of Record and undertakes to discharge its functions. The writ asked for was issued by this Court on the 10th of November, 1936.
This Court held in the case of Bridges v. Henry, 60 Fla. 246,53 South. Rep. 742, "that the jurisdictional facts on which a removal from office under Section Fifteen of Article Four of the Constitution was accomplished might be inquired into by quo warranto." (State, ex rel. Hatton, v. Joughin, 103 Fla. 877,138 South. Rep. 392.) And in the *Page 890 case of State, ex rel. Hatton, v. Joughin, 103 Fla. 877,138 South. Rep. 392, it was said by this Court: "quo warranto being a direct attack must be predicated on direct and positive statements of legal facts supporting the cause of removal"; also that the power vested in the Governor by the constitutional section referred to above is executive.
It is in no sense judicial or quasi-judicial, but it involves judgment and discretion on the part of the Governor including the power to hear and decide, but it was stated by this Court in the last cited case that this general rule "is modified by the exception, that such exercise of power being that affecting the lawful rights of individuals, the jurisdictional facts, in other words, the matters and things on which the executive grounds his cause of removal may be inquired into by the Courts."
This is true because, as was said in the Hatton case, supra, "One's right to office and the emoluments thereof is protected by the Fourteenth Amendment," meaning the Fourteenth Amendment of the Federal Constitution, as his right to exercise and enjoy the office is a species of property which the law will protect and will also redress if he is wrongly deprived of it.
If it is true that quo warranto in behalf of the claimant to office under executive appointment must be supported by direct and positive statements of legal facts supporting the cause of removal of the officer whom he succeeds it follows that in quo warranto brought by the latter it must appear that the statement of legal facts in the order of his removal was not sufficient to sustain the action of the executive. Therefore, it seems to me that the question presented to this Court by the demurrer to the information and the motion to quash it must turn upon the question whether the facts alleged in the order of removal were sufficient to *Page 891 support the cause of such attempted removal. If it is found that the statement of such facts is not legally sufficient to support the alleged cause of removal on which the executive acted, it follows that the demurrer and motion to quash should be overruled.
In the able opinion written by Mr. Chief Justice RANEY in the case of State v. Johnson, 30 Fla. 433, 11 South. Rep. 845, the principle is recognized that the officer has a right to the possession of his office, the emoluments thereof and the honor enjoyed in its occupancy. The qualification to such enjoyment is that he accepts the office "subject to the law of the land as to its termination, modification, and as to suspension or removal therefrom" (text 487) by the Governor, so long as the latter acts within the limits of his power.
That language strongly indicates that it was the view of the learned writer of the opinion, and of this Court which adopted it, that there were limitations upon the executive power of suspension and removal and if those limitations were disregarded by the Governor in removing an officer and depriving him of his office the executive act in attempted removal would be invalid and so held by the Court. If the Governor should attempt, for instance, to remove an officer from office because the Governor personally disliked him or because the occupant of the office was of a different political party or faction from that of the Governor and the latter should set forth that fact in the order of removal as sustaining the alleged cause of "neglect of duty," a decision by a court of competent authority that the attempted order of removal was an invalid exercise of executive power would not be inconsistent with the views expressed in the case of State v. Johnson, supra.
Therefore it seems to me that this Court should confine *Page 892 its study to the statement of facts contained in the executive order of removal to determine whether such facts bear a substantial relation to the cause of removal and are legally sufficient, if true, to sustain the order of removal upon the ground of "neglect of duty."
The order recites that the relator was suspended for "neglect of duty in office." Then follows a recitation in the order of alleged facts which the executive states constitutes the cause of removal. In substance these facts are that "gambling" had reached its peak in Hillsborough County during the years 1934 and 1935 and was carried on in all parts of the City of Tampa including the residential portion thereof; that during the year 1934 seven informations were filed charging gambling and that during 1935 no informations were filed charging gambling; that two of those informations were filed in December, 1934, as a result of a raid upon the Panama Cafe made by city officers at the direction of Mr. Hardee, but that no trials had been had on those informations; that later in 1934 another raid was made on the Panama Cafe led by the relator, yet no informations were filed; gambling was seen in actual operation by him. The recital of facts then states that the relator gave as an excuse for not filing such informations that the evidence was obtained without a search warrant and that the same excuse was offered for failure to prosecute under the two informations filed by him.
Aside from the fact that the alleged act of neglect of duty occurred prior to the date of the relator's commission to office, which was June 1, 1935, and which commissioned him to hold the office until April 11, 1937, and the confirmation of such appointment by the Senate, was tantamount to a disregard or forgiveness of the alleged faults of the officer, if he had been guilty of any prior to such election or appointment, *Page 893 as stated in the dissenting opinion of Mr. Justice DAVIS, the recital of facts which the Governor deemed to be legally sufficient to sustain the charge of neglect of duty is so vague and uncertain that the accused officer could have no conception of the particular act or acts which substantially relate to the cause of removal.
Assuming that the prosecution of the two informations filed was a continuing duty of the relator, yet it is stated that his failure to prosecute was based upon the relator's opinion that the evidence available to him to support the accusations was insufficient in law. That was an exercise of judgment upon the officer's part which the order of removal illegally seeks to control.
It seems to me that no such power is vested in the executive by Article IV, Sec. 15, of the Constitution, for if it were so there would be placed in the hands of a designing and politically ambitious executive a power to build up the strength of his political organization by intimidation and fear.
It is not my conception that the framers of the Constitution intended to place such weapon in the hands of the Chief Executive.
The recital in the statement that gambling had reached its peak in Hillsborough County is likewise a vague and meaningless statement furnishing to the relator no definite or specific instance of that particular form of amusement which may be prohibited by law, and for which it becomes his duty to prosecute upon information duly and properly filed based upon affidavits of witnesses of facts sufficient in his judgment to support the accusation. There are hundreds of forms or types of gambling few of which are prohibited by law and made a crime in this State. Numerous instances may be given of a form of gambling which the *Page 894 law does not prohibit, and which bears no substantial relation to the alleged cause of removal, which may furnish to the Governor, whose conscience is supersensitive on the subject of so-called immoral conduct, an excuse urging him to use the general term of "gambling" as sufficient in his judgment to warrant the exercise of the power of removal vested in him by the Constitution.
I am therefore of the opinion that the motion to quash and the demurrer should be overruled.
DAVIS, J., concurs.