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, exrel. 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 suspension *Page 895 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, *Page 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 become 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 *Page 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 suspension *Page 898 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 to 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 a 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 felonies, *Page 899 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 be 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 amenable 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 unreviewable 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 *Page 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 *Page 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 regard 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.