Ex Parte Amos

It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit where the very point is presented for decision. The reason of this maxim is obvious. The question actually before the Court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated. It cannot be reasonably expected that every word, phrase or *Page 21 sentence contained in a judicial opinion will be so perfect and complete in comprehension and limitation that it may not be improperly employed by wresting it from its surroundings, disregarding its context and the change of facts to which it is sought to be applied, as nothing short of an infinite mind could possibly accomplish such a result. Therefore, in applying cases which have been decided, what may have been said in an opinion should be confined to and limited by the facts of the case under consideration when the expressions relied upon were made, and should not be extended to cases where the facts are essentially different. When this rule is followed, much of the misapprehension and uncertainty that often arise as to the effect of a decision will be practically avoided. 7 R. C. L. 1004; Cohens v. Virginia, 6 Wheat. (U.S.) 264, text 399; Wayerhaeuser v. Hoyt, 219 U.S. 380, 31 Sup. Ct. Rep. 300; German Alliance Ins. Co. v. Home Water Supply Co., 226; U.S. 220, 33 Sup. Ct. Rep. 32; Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, text 64, 31 Sup. Ct. Rep. 502; Bailey v. Baker Ice Mach. Co., 239 U.S. 268, text 272, 36 Sup. Ct. Rep. 50; 15 C. J. 970; Carroll v. Lessee of Carroll, 16 How. (U.S.) 275, text 287; Bashore v. Adolf, 41 Idaho 84, 238 Pac. Rep. 534, 41 A. L. R. 932; 15 C. J. 941; Wadsworth v. Union Pac. Ry. Co. 18 Colo. 600, 33 Pac. Rep. 515; Pacific Exp. Co. v. Foley, 46 Kan. 457, 26 Pac. Rep. 665; Townsend v. Norfolk R. Light Co., 105 Va. 22, 52 S.E. Rep. 970; McCoy v. Handlin, 35 N.D. 487, 153 N.W. Rep. 361; Ex Parte Roquemore, 6 Tex.Crim. Rep., 131 S.W. Rep. 1101, 32 L. R. A. (N. S.) 1186, text 1189; Wayerhaeuser v. Hoyt, 219 U.S. 380, 31 Sup. Ct. Rep. 300; 26 Am. Eng. Ency. of Law (2nd ed.). 169; United States v. Wong Kim Ark, 169 U.S. 649, text 679, 18 Sup. Ct. Rep. 456; Pollock v. Farmers' Loan Trust Co., 157 U.S. 429, text 574-5, 15 Sup. Ct. Rep. 673; The Propeller Genesee Chief v. *Page 22 Fitzhugh, 12 How. (U.S.) 443, text 455; Carroll v. The Lessee of Carroll, 16 How. (U.S.) 275, text 287; Hart v. Stribling,25 Fla. 435, 6 So.2d Rep. 455; People v. Case, 220 Mich. 379, 190 N.W. Rep. 289, 27 A. L. R. 586; Moose v. Board of Commissioners of Alexander County, 172 N.C. 419, 90 S.E. Rep. 441, Ann. Cas. 1917E, 1183; Ann. Cas. 1912C, 1248, Notes; McCoy v. Handlin, 35 N.D. 487, 153 N.W. Rep. 361, Ann. Cas. 1917A, 1046; Myers v. United State, U.S. ___, decided Oct. 25, 1926; Rodrigues v. Transmarine Corporation, 215 N.Y. S. 123; Brady v. Welsh, ___ Iowa ___, 204 N.W. Rep. 235; Bashore v. Adolf, ___ Idaho ___, 238 Pac. Rep. 534.

What is said in an opinion upon a point not raised or properly involved cannot control in a subsequent case where the very point is presented for decision. Union Tank Line Co. v Wright, 249 U.S. 275, 39 Sup. Ct. Rep. 276. General words used in a judicial opinion should be construed with such limitations as are required by a reference to the facts in the case. Smitz v. Wright, 64 Fla. 485, text 486, 60 So.2d Rep. 225. See also Hart v. Stribling, 25 Fla. 435, 6 So.2d Rep. 455.

The general language used in Kirkland v. State, 86 Fla. 130, 97 So.2d Rep. 510, is controlled by the facts of the case. The indictment in that case alleged that the defendant county officer caused stated amounts to be paid out of county funds for articles that had not been received or used by the county, and approved vouchers for payments from county funds in violation of law, which allegations charge a breach of official fiduciary duty involving moral turpitude that constituted the crime of malpractice in office within the meaning of Section 5354, Revised General Statutes, 1920, though the acts were not alleged to have been wilfully or corruptly done.

It is a settled rule in the construction of statutes defining *Page 23 crimes that there can be no constructive offenses and that to warrant punishment the case must be plainly and unmistakably within the statute. United States v. Bathgate, 246, U.S. 220, 38 Sup. Ct. Rep. 269; Fasulo v. U.S. ___, U.S. ___, 47 Sup. Ct. Rep. 200, November 29, 1926.

"It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense." United States v. Eaton, 144 U.S. 577, text 688, 12 Sup. Ct. Rep. 764. The latter clause of Section 5354, Revised General Statutes, covers only such cases of malpractice in office as are criminal offenses under a statute or at common law.

The first part of Section 5354, Revised General Statutes, defines a specific criminal offense, while the latter part merely prescribes punishment for any officer of this State who is guilty of any malpractice in office not otherwise specially provided for. The "malpractice in office" for which punishment as a crime is prescribed in the latter part of Section 5354, Revised General Statutes, is not defined in any other statute and must be determined from the common law in so far as it is in force in this State.

At common law a public officer is punishable criminally for official conduct that involved corruption, and if the official misconduct charged does not ordinarily involve moral turpitude or like evil intent or purpose, it is essential that it be alleged and proven that the officer corruptly acted or failed to act; and this rule is peculiarly applicable where the official has judicial or quasi-judicial discretion in the premises.

In this case an administrative officer, having a discretionary power in descharging a statutory duty, is merely charged with not doing an official act that he could have done in his discretion. He is not charged with any act that involves moral turpitude. Nor is he charged with a breach *Page 24 of official duty except as may result from an erroneous or mistaken exercise of official discretion in performing a statutory duty. The mere erroneous or mistaken exercise of discretion in performing an official duty is not a criminal offense under any statute, and is not malpractice in office for which criminal prosecution may be had under Section 5354, Revised General Statutes. Where the act charged as malpractice in office does not involve a moral wrong or an intentional breach or violation of official duty, but is merely a failure to do an official act that the officer could have done or refrained from doing in the exercise of discretion given him by law, such an act is not the malpractice in office that is made a crime by the cited statute. It is not alleged that defendant corruptly acted or failed to act in the matters alleged.

In the Kirkland case the decision was that the acts alleged in the indictment involving positive wrongdoing and breach of official duty, constituted malpractice in office within the meaning of the statute, without an allegation that the acts were wilfully or corruptly done. The broad general language used in the Kirkland case is to be regarded as restrained by the facts alleged in the indictment which show malpractice in office though a wilful or corrupt intent was not alleged.

In this case the officer exercised a discretion given him by law and the information does not allege acts involving moral turpitude or positive wrongdoing in the breach of official duty so as to make the matters charged amount to malpractice in office within the meaning of the statute without an allegation of a corrupt intent; and the acts and omissions charged are not alleged to have been with a corrupt intent, so as to charge a criminal offense under the laws of the State. See Throop on Public Officers, 856, 859. See also People v. Norton, 7 Barb. (N. Y.) 477; 29 Cyc. 1450; 17 *Page 25 Ency. Pl. Pr. 254; 23 Am. Eng. Ency. Law (2nd ed.) 383; State v. Flynn, 119 Mo. App. 712, text 728, 94 S.W. Rep. 543; State v. Boyd, 196 Mo. 52, 94 S.W. Rep. 536; State v. Powers,75 N.C. 281.

TERRELL AND BROWN, J. J., concur.