In a supplement to his petition for rehearing appellee suggests the disqualification of Justices BUFORD and ADAMS, and that they "recuse themselves or, in the alternative, that the Court hold that they are disqualified to participate in these proceedings."
Justices BUFORD and ADAMS have voluntarily filed a statement relating to the facts upon which disqualification is sought, and have asked the Court to pass on the "suggestion". Each has announced to the Court that if he were found disqualified from the facts contained in the suggestion, or otherwise, when considered together with the legal controversy before the Court, or if the Court should find that the conduct of either has indicated any hostility toward the interest of appellee as charged in the suggestion other than an adverse judicial ruling or conclusion, to so adjudicate, and that they would be governed accordingly.
The suggestion alleges that the DuPont interests own and control numerous banks in Florida, including the Florida National Bank in Jacksonville, and the Florida Bank in Ft. Pierce; that appellant's counsel, Messrs. H.P. Adair and William H. Rogers, are both directors of the Florida National at Jacksonville and have been so for a number of years; and that Mr. Ball, the appellant, is on the Board of Directors of said Jacksonville Bank and President of the St. Joe Paper Company; that Ball is the dominating and controlling trustee of the DuPont Estate which in turn owns or controls said institutions.
Under the statute a judge may be disqualified to sit in a cause (1) if he is a party thereto, (2) if he is related by consanguinity or affinity within the third degree to one of the parties thereto, (3) if he is a material witness for or against one of the parties thereto, or (4) if he is prejudiced *Page 531 against or biased in favor of either of the parties or interested in the outcome of the litigation. F.S. Sec. 38.01-10 F.S.A.
The suggestion of disqualification in this instance is upon the ground of prejudice and bias. The policy of the law as expressed in the statute is that suggestion of disqualifications shall be filed before the trial and before decisions are rendered and not afterward unless the delay is excused by good cause shown.
The law requires that the party litigant file an affidavit that he fears he will not receive a fair trial and that the grounds of disqualification be supported by the affidavit of two reputable citizens not of kin or of counsel for the defendant [party].
A ground for bias on behalf of Justice BUFORD is that he was a lessee for a period of ten (10) years of oil rights of the St. Joe Paper Company in certain land. Appellee fails to state what the public records of the county show as to the present status of said lease — and if surrendered when surrendered.
This lease was made April 10th, 1944, and recorded in the public records of Leon County on August 29, 1944. It provided that the lessee should pay a rental of 10 cents an acre except that the drilling of a well would suspend payment for six months. It also provides for the payment of royalties for gas produced and delivery to the lessor of 1/8 part of the oil produced.
This appellee has termed this a "joint adventure" which it is not. The lessor's interest was in receiving his rent of 10 cents per acre or else that of having wells drilled for oil on his land and receiving a portion of the oil as rent. The lessee's interest was in having the privilege of taking oil and gas from plaintiff's land. There was no joint or mutual interest. The lessee was to pay and the lessor was to receive. Their interests were adverse and not joint as suggested; but of course they both wanted oil and gas but there is none and even if oil were produced their interest would be separate and not joint. *Page 532
Appellee further alleges upon information and belief that while a prior appeal was pending in this case (circa 1940) appellant employed an attorney who was a friend of Justice BUFORD. Such attorney did not appear in that appeal and. neither has he appeared in this appeal and neither does it appear for what purpose such attorney was employed, nor is it in anywise shown or suggested that Justice BUFORD has ever known of such employment prior to the filing of this. suggestion.
It is further stated that at a time after the rendering of the judgment of the trial court (3-8-45) now on appeal but before the appeal (9-27-45) of the judgment to this Court that Justice ADAMS borrowed money from the Florida National Bank of Jacksonville (6-29-45) secured by a mortgage on real estate and personal property in St. Lucie County and that such mortgage was satisfied before maturity.
It is further alleged that on December 4, 1946, Justice ADAMS and Irlo Bronson borrowed $30,000.00 from the Florida Bank of Ft. Pierce, Florida and secured it by a mortgage on real property in St. Lucie County; that said mortgage is payable $400.00 per month and the balance of $15,600.00 payable January 10th, 1950.
Appellee states that he did not discover the existence of lease and mortgages of record until after he had filed his petition for rehearing; that he does not question the right of either Justice BUFORD or ADAMS to either lease or mortgage their property as above stated, but having done so, questions their right to sit in judgment herein.
We have examined the "suggestion" and considered same together with the record of the case and the proceedings therein before this Court, and it is our conclusion and judgment that in fact and in law, it is inadequate and insufficient in substance, and we are unmindful of any hostility exemplified at any time toward the interest of appellee.
When no disqualification is shown the matter of voluntary recusation is not for the Court to decide, but in each instance for the individual Judge or Justice to determine according to the circumstances. At times he may voluntarily recuse himself *Page 533 merely because he feels that it would be better policy and for like reasons he may fail to do so.
When recusation is requested by an unsuccessful litigant after the Judge or Justice has rendered or participated in a judgment or decision adverse to the party requesting it, and there is no disqualification, the problem or propriety of voluntarily retiring is made more acute and more difficult to decide. The law does not favor the substitution of a Judge or Justice in a cause after decision which essentially carries a benefit to the successful party, yet it favors judges lending themselves to promoting confidence in the Court's acts when no injustice will be worked thereby.
The suggestion is overruled.
THOMAS, C.J., TERRELL, CHAPMAN and BARNS, JJ., and FABISINSKI, Associate Justice, concur.
STATEMENT OF JUSTICE RIVERS BUFORD IN RE SUGGESTION OF DISQUALIFICATION — HOLDING THE SUGGESTION INSUFFICIENT AND HOLDING HIMSELF NOT DISQUALIFIED.
To the Chief Justice and The Justices of the Supreme Court of Florida:
On Saturday, February 1st 1947, the appellee filed here a document suggesting the disqualification of myself and Mr. Justice Alto Adams to participate in the disposition of the above styled cause, alleging that my disqualification had existed since April 10th, 1944, by reason of a certain transaction involving an oil and gas lease executed by St. Joe Paper Company to me.
It is my opinion that the allegations of the suggestion of disqualification are entirely insufficient to show grounds for disqualification. However, I shall frankly state the facts which apparently constitute the basis for the innuendoes contained in the suggestion and explain the entire transaction, in the hope that everyone may be satisfied.
I am conscious of no bias or prejudice for or against either party to this suit and there is no logical reason for anyone to assume that either exists. The record shows that my position and opinion has been consistently the same from the first *Page 534 appearance of this case here to date. See Yates v. Ball,132 Fla. 132, 181 So. 341, opinion filed October 13th 1937; Ball v. Yates, 145 Fla. 537, 200 So. 695, opinion filed May 3rd 1940, and Ball v. Yates, opinion filed November 29 1946.
I attach hereto, and make a part hereof, copies of documents which constituted all the contracts and agreements connected with the Oil and Gas Lease from St. Joe Paper Company to me executed on April 10th, 1944, as follows:
1. Escrow Agreement between St. Joe Paper Company and Rivers Buford. (This Escrow Agreement is along identical lines as those entered into between me and Lloyd Brown as Lessee, and V.G. Phillips, Phillips Turpentine Company, Wakulla Turpentine Company and others, as Lessors, under which a test well was being drilled when this contract was made. In fact, the Phillips Escrow Agreement was used as a model or pattern in drafting this Escrow Agreement. The Phillips tract adjoined this tract.)
2. Original Lease dated July 17th, 1943.
3. First Extension Agreement.
4. Second Extension Agreement.
5. Lease dated April 10th, 1944, modified to meet Stanolind's requirements and substituted in escrow in lieu of original Lease.
6. Contract between Buford and Stanolind Oil and Gas Company dated April 12th 1944, with documents attached. (The conditions of the Escrow Agreement were performed and Lease from St. Joe Paper Company to Buford and assignment from Buford to Stanolind were delivered on August 29th 1944.)
7. Assignment of Oil and Gas Lease to Standolind Oil and Gas Company dated August 29th 1944.
8. Release of all interest in and under Oil and Gas Lease of April 10th 1944 and made by Stanolind Oil and Gas Company executed on the 7th day of September, 1945, after completing well to required depth and abandoning same as dry hole, on November 20th 1944.
9. Release by Rivers Buford made prior to April 10th 1946 to St. Joe Paper Company of all lands covered by lease of *Page 535 April 10th 1944 except 2749 acres in Jefferson County as to which Buford exercised the option, provided in the lease, to retain under the lease by paying the annual renewal rentals of 10¢ per acre for each acre so retained.
On April 3rd 1945 I paid rentals on the 5229 acres reserved from the Stanolind Assignment. My associate, Wm. L. Less, paid the rentals April, 1946, on the 2749 acres amounting to $274.90. Thus, we have paid renewal rentals as required by the lease since Stanolind completed and abandoned the well in the sum of $797.80.
We have never been under any financial or other obligation to St. Joe Paper Company or to anyone else in connection therewith. There has never been any fiduciary relation between me and St. Joe Paper Company or between me and Mr. Ball. I have no intimate acquaintance with Mr. Ball and our association has been only casual. He has called on me at my office or chambers three (3) times in the last 15 years but only in a social way, but he has not called on me at all within the last two (2) years. He has never either directly or indirectly discussed, or attempted to discuss, any law suit of any sort with me. There is nothing either unusual or unseemly about such calls or visits as Mr. Ball has made to me. Hundreds of laymen in all walks of life call on and visit with me each year. My doors are closed to no citizen who may wish to call on me. They are all welcome.
During the past 25 years I have believed that Florida has great potentiality as an oil-producing State and I have endeavored to encourage exploration which would develop this great natural resource and to this end I have acquired many oil and gas leases from various land owners, including St. Joe Paper Company and St. Joseph Land Development Company. In all cases I have given full consideration under the then prevailing price in the area involved and under the usual terms applying to such transactions just as one would go to a store and buy a suit of clothes, or to a land-owner and buy a house or a farm, or to a bank and buy bonds or stocks. These transactions have been more in the nature of a hobby and recreation than as a business or vocation and I have at no *Page 536 time allowed these activities to interfere with the prompt and fair performance of my official duties.
These transactions have involved no special favors and no fiduciary relations between me and any of such land owners, or those acting for them.
As to the innuendo contained in the suggestion in reference to the employment of Mr. H.H. Wells by Mr. Ball — I think it hardly deserves notice but I will say that Mr. Wells and I have been friends for more than forty years but our association has been of only a social nature and I do not think he entertains any idea that he could ever control or influence my official action in regard to the result of litigation by reason of our friendly relations, and I am positive that he could not do so. What fee Mr. Ball may have paid him or for what services such fees were paid are matters in which I have no interest. I do know, in a general way, that he has represented Mr. Ball as an attorney during the past fifteen years. I am confident that Mr. Wells would not represent to Mr. Ball that he could influence, except in an ethical manner, the action of any member of this Court. I consider Mr. Wells a member of the Bar of high honor and integrity.
If I were disqualified, for any reason, in the Ball v. Yates case I would have willingly recused myself but, as no disqualification is shown or in fact exists, it is my duty to participate in the disposition of it. See Austin v. Lambert,11 Cal.2d 73, 77 P.2d 849; State ex rel Palmer v. Atkinson, 116 Fla. 366, 156 So. 726.
In the Atkinson case we held:
"Circuit Judge who is eligible and competent to sit in cause has duty to exercise judicial functions therein and to make all necessary orders and decrees, regardless of personal embarrassment or other considerations where these do not amount to legal disqualification.
"Mandamus will lie to compel qualified judge to proceed with legal impediment to his judicially acting in cause."
Respectfully, /s/ Rivers Buford RBj Justice Supreme Court *Page 537 Tallahassee, Florida February 3, 1947
A suggestion of my disqualification has been filed in the above case because of two mortgages given by me to secure an indebtedness of $80,000.00 to the Florida National Bank of Jacksonville and $30,000.00 to the Florida Bank of Fort Pierce. I am conscious of no bias or prejudice as a result of these mortgages, or otherwise, which would preclude me from continuing in this case.
The question of my disqualification, however, is one that I prefer the other members of the Court to determine now that the challenge has been made.
In fairness to the Court, I will say that the $80,000.00 mortgage was paid in full January 10, 1946, before the due date, and long before this case came before me. The $30,000.00 is not due and is outstanding.
Both of these mortgages were more than triply secured. They required the usual rate of interest of 4% per annum on the class of loans such as these. At no time have I been, even remotely, conscious of any favor being extended to me, directly or indirectly, by these lending agencies or any other person or persons.
In the interest of public policy, I earnestly urge the Court to direct its Clerk, or any other agency, to conduct a thorough examination of all my books and records in order to remove any question which might reflect on this honorable Court.
Respectfully submitted,
/s/ Alto Adams Alto Adams
Opinion filed March 28, 1947.
ON PETITION FOR REHEARING