dissenting. — The order of the judge appointing E. P. Smith to take the testimony of complainant and other witnesses, introduced in evidence by the. State, does not appoint Smith to any office known to the law. He is neither appointed master in chancery or examiner. As an individual, simply, he is directed to take the testimony. The order of appointment of an examiner or master is the commission under which such officers exercise statutory authority. Bonner v. McPhail, 31 Barb. (N. Y.) 106; Stone v. Merrill, 43 Wis. 72.
In my opinion examiners and masters are officials created by statute law, which prescribes and limits their authority, powers and duties. Sections 1428 to 1443 inclusive, Rev. Stats. 1892. The authority, powers and duties of these officers like those of a clerk or sheriff are brought into operation by a proper appointment to the of*64fice. The functions flow from the office, and not the office from one or more of the functions. A judge can not create official functions, though he may bring them into operation by a proper appointment. The fact that Smith signed his name as examiner, and that the judge in his final decree recites that the cause came on to be heard upon the report of the testimony taken by the examiner, should not be given a retroactive effect and make a thing criminal which was not criminal when it was done. Bonner v. McPhail, supra. Furthermore if it be proper to resort to inferences and implications, to discover the effect of the order of the judge, from the duties conferred upon Smith, how is it to be determined from the order whether the judge appointed Smith an examiner, rather than a master in chancery? Both are authorized by statute to take the testimony of witnesses, and there is not a word in the order which would indicate one, rather than the other. It follows, therefore, that the charge in the indictment that Markey was sworn by and before Smith, examiner, is not even proven by a preponderance of the evidence. The cases cited in the majority opinion to sustain its view, are in my opinion, absolutely lacking in similarity or analogy to the case at bar. In each of them except one, some officer was named to perform functions. In the excepted case, In re Fifty-four First Mortgage Bonds, 15 S. C. 305, the appellate court held that inasmuch as certain persons were directed by an order to do certain things, and that as these things were appropriate to the office of receiver and as they were appointed in response to a motion for a receiver, it was inferred that the order was to be construed in connection with the motion and prayer of the bill. In the case at bar no such motion appears. Only four of the cases cited are criminal cases (perjury). The rest are civil. The case of Mann v. Jennings, 25 Fla. 730, 6 South. Rep. 771, is squarely in line with Harding v. Handy, 11 Wheat. 103, in which Chief-Justice Marshall used the word “commissioner” as equivalent to “master in chancery;” *65and with Dean v. Emerson, 102 Mass. 480, to the same effect; and with Morris Canal and Banking Co. ads. State, 14 N. J. L. 428, in which the word “commissioner” is shown to be a “generic” one embracing “such persons as have commissions, letters patent or other lawful warrant to examine matters, or to execute any public office.” But these cases are unlike the one at bar, where no official cognomen of any sort is used. Moreover the effect to be given irregularities in taking testimony is different in civil cases from the effect given in criminal cases. In civil cases irregularities may be waived, and the oath of witnesses may be waived, but I have found no case which holds that perjury can be assigned in such testimony. Phillipi v. Bowen, 2 Pa. St. 20, opinion by Chief-Justice Gibson; State v. McCrosky, 3 M’Cord (S. C.) 308; State v. Jackson, 36 Ohio St. 281; State v. Dreifus, 38 La. Ann. 877; Hood v. State, 44 Ala. 81; Commonwealth v. Hillenbrand, 96 Ky. 407, 29 S. W. Rep. 287; Walker v. State, 107 Ala. 5, 18 South. Rep. 393; United States v. Bedgood, 49 Fed. Rep. 54; Lamden v. State, 24 Tenn. 82; Straight v. State, 39 Ohio 496.
To constitute perjury the oath must be taken before a competent tribunal, person or officer lawfully constituted, elected or appointed, 22 Am. & Eng. Ency. Law (2nd ed.) 683; Craft v. State, 42 Fla. 567, 29 South. Rep. 418; 1 Hawkins’ Pleas of the Crown, 431; 2 Bishop’s Crim. Law, sec. 1020.
In the case of State ex rel. Ross v. Call, 39 Fla. 504, 22 South. Rep. 748, this court held that a Circuit judge could not amend, annul or modify a rule of practice made by this court, or make one unless such a rule was necessary to enable him to exercise his constitutional functons where the common law, or rules enacted by legislative authority, failed to provide a necessary method of procedure. As Smith was not exercising the duties of examiner under such circumstances of reputation or acquiescence as were calculated to .induce people without inquiring to submit to *66or invoke his action, supposing him to be the officer he assumed to be,” he can not be said to have been “a de facto examiner.” State ex rel. Robert v. Murphy, 32 Fla. 138, 13 South. Rep. 705; Hall v. Manchester, 39 N. H. 295; State v. Wilson, 7 N. H. 543.
By way of recapitulation, then: First, Smith was not appointed to any official position to which by law the power to administer an oath is attached, directly or indirectly; second, if we are left to implications, the implication that he was appointed master in chancery is just as strong as the implication that he was appointed examiner, and hence the indictment is not sustained by even a preponderance of the evidence; third, Smith was not a "de facto examiner;” fourth, it follows, therefore, that Smith had no legal authority to administer an oath to Marlcey upon which perjury could be assigned, and that for this reason the judgment of conviction should be reversed.
In all other respects I agree with the majority opinion.