Citations
- 12 Fla. 653
Full opinion text
Executive Department, )
Tallahassee,
To the Honorable the Justices of the Supreme Court of the State of Florida:
As Governor of the State of Florida, I hereby, under and. in pursuance of the sixteenth section of the fifth article of the Constitution of tlie State, require the opinion of your Honors as to the interpretation of certain portions of said Constitution, and upon certain points of law hereinafter mentioned and stated, and respectfully request that you render me such ojnnion in writing.
For the information of your Honors, I present herewith a copy of the proceedings of the Joint legislative Convention, begun and held at the Capitol, in the city of Tallahassee, on the third day of November, in the year of our Lord one thousand eight hundred and sixty-eight, pursuant to adjournment, and in accordance with the provisions of An Act entitled “ An Act prescribing on the part of this State the manner of appointing Electors of President and Vice-President of the United States,” approved August 6th, 1868, marked Exhibit “A,” and a copy of what purports to be a “ Senate Journal, at an Extraordinary Session of the Legislature convened at the Capitol, at Tallahassee, Florida, on Tuesday, the 3d day of November, A. D., 1868, at eight o’clock, P. M., by virtue of-a proclamation of the Governor,” marked Exhibit “ B,” and a copy of what purports to be a “ Journal of the Assembly, at an Extraordinary Session of the Legislature convened at the Capitol, at Tallahassee, Florida, on Tuesday, the 3d day of November, A. D. 1868, at eight o’clock, P. M., by virtue of a proclamation of the Governor,” marked Exhibit “ C,” which said Exhibits A, ,B, and C, I respectfully ask may be taken and considered as a part hereof.
Article III., on “ Distribution of Powers,” provides: “ The powers of the government of the State of Florida shall be divided into three departments, to wit: Legislative, Executive, and Judicial, and no jierson properly belonging to one of the departments shall exercise any functions appertaining to either of the others, except in those cases expressly provided for by this Constitution.”
Section l, of Article IV., of the Constitution provides that “ the Legislative authority of this State shall be vested in a Senate and Assembly, which shall be designated the Legislature of the State of Florida, and the sessions thereof shall be held at the seat of government of the State,” and section 8 of the same article provides 'that “ a majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the presence of absent members in such manner and under such penalties as each blouse may prescribe.”
Section 8, of Article V., of the Constitution provides: “The Governor may on extraordinary occasions convene the Legislature by proclamation, and shall state to both blouses, ,when organized, the purposes for which they have been convened, and the Legislature then shall transact no legislative business except that for which they are especially convened, or such other legislative business as the Governor may call to the attention of the Legislature while in session, except by the unanimous consent of both Houses.”
An interpretation of these several provisions of the Constitution is required in order to determine :
First. Whether a Legislature of the State of Florida, consisting of a “ Senate ” and “ Assembly ” vested with the legislative authority of the State, has convened in Extraordinary Session under the proclamation of the Governor of November 3d, A. D. 1868.
Upon this point, to assist your Honors in interpreting' said provisions of the Constitution with reference to the facts, I refer your Honors more particularly to Exhibit “ B,” or “ the Journal of the Senate,” from which it will bo seen that the Senate, as a co-ordinate branch of the Legislature of the State, had not, at any time, since it assumed to do business in conjunction with the Assembly, under said proclamation, a quorum consisting of a majority of its members. That I called the attention of the Senate and Assembly, as soon as the official records disclosed the same, to this fact in my message to them of November Sd, which message appears in said exhibit “B.” That certain persons who assumed to act as Senators, to wit : George J. Alden,. Horatio Jenkins, Jr., C. R. Mobley, and Robert Meacham, had, before assuming so to act, vacated their positions as Senators, and their seats in the Senate had been declared vacant by “ proclamation for and notice of election ” of 28th October, A. 1>. 1S68, duly made and published, am! a copy of which “ proclamation,marked Exhibit “ D,” is presented herewith to be taken and considered as a part hereof. That, excluding said persons who had assumed so to act as Senators, there were in the Senate only eight Senators whose names appear upon the Senate Journal, to wit: Messrs. Ginn, Katzenberg, Krimminger, Moragne, Underwood, Smith, Brad-well, and Pearce.
It is provided in section 29, of Article XVL, of the Constitution, that “there shall be twenty-four Senatorial Districts.” The Senate, therefore, as one of the “ líouses ” of the legislature, being composed of twenty-four ¡Senators, cannot without a majority constitute a quorum to do business, and any legislative business transacted by it witli eight members, which is five less than a majority, is clearly without constitutional sanction and is void.
If your Honors, in interpreting said provisions of the Constitution, should give me the opinion that there has not convened under said proclamation in Extraordinary Session, a Legislature of the State, consisting of a Senate and Assembly, vested with the legislative authority of the State, competent to transact legislative business, it would be unnecessary to trouble you further; but if your opinion be otherwise, then I present for your interpretation and opinion:
Second. Admitting, under the several provisions of the Constitution referred to, that a Legislature of the State, consisting of a Senate and Assembly duly organized and vested with the legislative authority of the State, had convened in Extraordinary Session under the proclamation aforesaid, and were, under the Constitution, competent to transact legislative business, are the proceedings of said Legislature, as shown by said Exhibits B and C, in so far as they relate to my impeachment as Governor of the State of Florida, of constitutional validity of force, and am I, under section 15, of Article Y., and section 9, of Article NVL, disqualified from performing the duties of my office, by reason of the proceedings had and taken as aforesaid in reference to my impeachment ?
Upon this point I respectfully refer your Honors to my proclamation of November 3d, A. D. 1868, concerning said Extraordinary Session, and to my message of same date, addressed to the Senate and Assembly, both of which appear in said Exhibits B and C, and present for your consideration the fact that neither in said proclamation or message is it stated, or can it be implied, that among the purposes for which said Legislature was convened was my impeachment. Nor have I called to the attention of said Legislature, while in session, any other legislative business than that for which they were' especially convened by said proclamation, and mentioned in said message.
I further present for the consideration of your Honors, that the Assembly, in originating and bringing before itself and Senate these impeachment proceedings, were acting in their legislative capacity, and the members thereof sitting as legislators; and that in so doing they were transacting legislative business other than that for which they wore especially convened, and this, too, without the unanimous consent of both Houses, to wit: of the Assembly and Senate, all which will more fully appear by reference to said exhibits B and C.
It should be affirmatively shown by said Exhibits B and C that such unanimous consent was first had and obtained, and if it should be made to appear that objection was made to the transaction of any other legislative business than that for which said Extraordinary Session was especially convened, I not only call your Honors’ attention to said Exhibit “ C,” where objection docs so appear to have been made by a member of the Assembly, but to the accompanying affidavits, marked Exhibit “ E,” and which I respectfully ask may be taken and considered as a part hereof.
In asking the opinion of your Honors upon the grave questions above submitted, I feel it my duty to bring to your attention the fact — that upon said' proceedings for my impeachment, the Lieutenant-Governor of this State, William II. Gleason, has at once assumed to be the Acting Governor thereof; that said Gleason has issued a proclamation as such Acting Governor, a copy of which is herewith filed, marked “ F,” and which I ask may be taken and considered as a part hereof; that I am still in possession of the Executive Chamber, in the Capitol of the State; that said Gleason, as acting Governor as aforesaid, has demanded of me the surrender of the Executive Department. This demand I refused, stating to him that I claimed to be, under the Constitution and laws of this State, the rightful Governor thereof; that I should continue to exei'cise all the power and authority, and discharge all the duties belonging to the Executive Department until the courts should determine otherwise; that should the judicial tribunals of the State determine against me, I should, like any other good citizen, not only render peaceful but immediate obedience; that I am continuing to act as Governor, and that said Gleason is also assuming to act as Governor; that the officers of the State do not know, in this unsettled and anomalous condition of things, whom to recognize as at the head of the Executive Department; that the administration of the State government is obstructed, and the peace and welfare of the whole State jeoparded. It is but natural that I should, therefore, under such circumstances, seek your counsel and opinion at the earliest moment, and you will pardon me for urging you, in view of the possibly momentous results of these issues, to furnish me your opinion at the earliest practicable moment.
I will state, in conclusion, that I have foreborne, as I felt it' my duty to do, to bring to your notice any matter of political-controversy, and. I will add, that if, in your opinion, it is proper to give Lieutenant-Governor Gleason notice of this paper, to the end that he may, as a party in interest, be represented before your Honors, you can direct the clerk of the court to hand him a ct>py hereof if he will consent with me to submit the matter to you, and be bound by your opinion to be given in the premises. Should you desire it, I will appear before you by counsel, at such time as your Honors may be pleased to designate. Harrison Reed,
Governor of Florida.
To the Honorable the Justices of the Supreme Court of the State of Florida: '
I would respectfully inform your Honors that I have received a copy of the communication, bearing the seal of the Supreme Court, of Harrison Reed, Governor of Florida, asking the opinion of your Honors upon certain j>oints as connected with the impeachment of Harrison Reed, Governor of Florida, by the Assembly of the State, and in reply would say :
That the journal of the Assembly shows that he ivas legally impeached for high crimes and misdemeanors in office, and that a presentment of the impeachment was formally and legally made to the Senate, and the Senate formally and legally agreed to entertain and take action in the matter, as is shown by the journal of the Senate. Consequently, the entire matter of the impeachment of Harrison Reed, Governor of Florida, is before the Senate in its judicial capacity as connected with the Assembly in its appropriate capacity, it having the sole power of impeachment.
As no other court than the Senate of the State has any jurisdiction whatever in matters of impeachments, and as there is no question or interpretation, or constitutional or statute law involved, but only a question of fact as to the retention by Harrison Reed, Governor, of the possession of the Executive Chamber and the Archives of the State, after his formal impeachment by the Assembly, and the recognition of myself as Lieut, and acting Governor by both bodies of the Legislature, I do not perceive how any question connected with the matter of impeachment. can possibly be submitted to your Honors for a legal opinion under the provisions of Article V., Section 16, of the Constitution of the State. Therefore, having no power to do so, I most respectfully declino to submit any question connected with the matter of impeachment to your Honors, even while I hold the opinions of your Honors upon all proper questions and matters in the highest possible 'estimation.
[Signed,] ■ W. II. Gleason,
Lieutenant and Acting Governor.
Supreme Court of Florida, ) Tallahassee, Florida, Nov. 24, 1868. j
To his Excellency, Harrison Reed, Governor of Florida :
Sir : Your communication of the 9th of November is received. It is accompanied by exhibits consisting- of your proclamation of the 3d of November, calling an extraordinary session of the Legislature ; of what purport to be Journals of the Senate and Assembly at such session, and a proclamation of your Excellency containing notice for an election to fill certain vacancies alleged to exist in the Senate and Assembly, occasioned by parties who were elected to seats in the Legislature having subsequently accepted oilic.es and exercised functions appertaining to the Executive and Judicial departments of the Government.
You present for our consideration several “ points of law,” and require of us an opinion upon two questions involving the interpretation of several clauses of the Constitution of this State.
' The first question is — Whether, upon the facts appearing in your communication, a Legislature of the State of Florida, consisting of a Senate and Assembly, vested with the legislative authority of the State, has convened in extraordinary session under your proclamation of November 3d, 1868 ?
The second question is — If such a Legislature has assembled, “ are the proceedings,” as shown by exhibits B and C, in so far as they relate to your impeachment as Governor of the State of Florida, of constitutional validity and of force, and are you, under section fifteen of Article V., and section nine of Article XVI., disqualified from performing the duties of your office by reason of the proceedings had and taken in reference to your impeachment ?
An answer to the second question is not required by your Excellency- in the event that a negative reply is given to the first, your Excellency having in substance remarked that in case our opinion is that, a Legislature of the State of Florida did not convene, it would be unnecessary that the court should proceed further; but if the opinion of the court is otherwise, then you present the second question for consideration.
Before expressing an opinion upon the question propounded, it may be well to determine whether there is anything in the character of the opinions required which would authorize the court to decline to act in the premises. The Governor of this State is authorized to require opinions of this court by virtue of the following clause in the Constitution of the State :
Section 16, Article V. “The Governor may at any time require the opinion of the justices of the Supreme Court as to the interpretation of any portion of this Constitution or upon any point of law, and the Supreme Court shall render such opinion in writing.”
This clause has not been embraced in the antecedent Constitutions of this State, and we must look to other State Constitutions having similar provisions to obtain an idea of the practico under it.
An almost entirely similar clause is found in the constitutions of Maine, New Hampshire and Massachusetts. The character of questions considered by the courts of these States, in answer to inquiries made, will show to what extent the courts of these States have gone, and will indicate whether they have at any time felt justified, on account of the character of the questions submitted, to decline to make a reply.
In 3d Greenleaf, 447, we find that the opinion of the Supreme Court of Maine upon the construction of the following section in the Constitution of that State was required : “ The number of Representatives shall, at the several periods of making the enumeration, be fixed and apportioned among the several counties as near as may be according to the number of inhabitants, having regard to the relative increase of population.” Here a construction was desired of a clause which in part relates to the exercise of a purely legislative discretion.
It will not be denied that a judicial tribunal cannot review or control a purely legislative discretion. In a constitutional government such as ours, all departments are limited in their powers by the Constitution ; each being independent, are severally supreme within their legitimate and appropriate sphere of action; and while it is unquestionably true that wherever a power and trust is expressly confided to one co-ordinate branch of the government, neither of the others, in a government with constitutional restrictions similar to those contained in ours, can exercise any supervisory control over the other departments when acting within the limits of their constitutional power, vet we see in this instance that the “ Supreme Judicial Tribunal ” of Maine did not hesitate to give a construction to this clause in the Constitution as requested.
In 3d Greenleaf, 481, the following question was submitted : “ Is the office of agent, appointed under a resolution authorizing die Governor to appoint one or more agents for the preservation of timber upon the public lands, a civil office of profit within the meaning of Article IV., part 3, section 10 of the Constitution, so that no Senator or Representative of the present Legislature can constitutionally be appointed as agent ?”
In 3d Greenleaf, 481, the following question is asked : “Can any person, according to the third article of the Constitution, hold and exercise at the same time the several offices of deputy sheriff and justice ol' the peace ?”
In 6th Greenleaf: “Do the executive duties of the State, when constitutionally exorcised by the President of the Senate, devolve at the end of the political year when so exercised on the President of the Senate or Speaker of the House of Representatives of the next political year, whichever shall be first chosen, or shall such executive duties still continue to be exercised by such President of the Senate until another Governor of the State chosen by the people or by the Legislature be qualified ?”
Here was a question propounded which settled a matter of controversy in that State, involving the question as to who was the Governor.
The question was asked with reference to a clause in the Constitution of that State, which was as follows: “Whenever the office of Governor shall become vacant by death, resignation, removal from office or otherwise, the President of the Senate shall exercise the office of Governor until another Governor shall be duly qualified.” There was a further provision to the effect that a President of the Senate should be elected for the term of one year.
Hon. Nathan Cutler had been elected for the year 1829, and had discharged the duties of the office of Governor during that year, there being a vacancy in the office of Governor. Another President was elected for the year 1830. Under these circumstances, lion. Nathan Cutler, Acting Governor, whose term as President of the Senate had-expired, addressed a communication to the Justices of the Supreme Court of that State and pro-' pounded the question above set forth. The Justices, with the exception of one, advised him that he was not authorized to act longer as Governor.
Other citations showing the extent to Avhich the courts have gone in opinions of this character, are 7th Greenleaf, 482; 16 Maine, 474; 35 Maine, 585; 35 N. H., 578.
In the case first cited, one of the questions asked was, whether, “ on the statement of facts made, Messrs. Appleton, BodAvell, Usher and Hill were constitutionally entitled -to retain their seats in the Senate ?” In giving their opinion the Justices remark, “ The returns of votes are before the Senators, and their decision upon them Avill of course be in accordance with the Constitution as understood and construed by the court.”
It will be perceived that the Justices in this case go so far as to say that the Senate in making its decision must construe the .Constitution in accordance with the opinion of the court, thus intimating that their opinion interpreting a clause in the Constitution as to the manner of exercising a poAver vested exclusively in the Senate, Avas a law to the Senate itself, in its action.
These precedents show that there is no power in the court to decline to give an opinion upon questions submitted by the Executive in so far as the act of giving such opinion, AAdieneA'er they have been required, goes to establish the rule.
Whilst I have been thus careful to cite at some length the practice of the courts, to shoAv their uniform course of action in other States with similar constitutions, yet I do not think that this clause in our constitution vesting this power admits of doubt as to its construction. Its language is — “ The Governor may at any time require the opinion of the justices of the Supreme Court as to the interpretation of any portion of this Constitution, or upon any point of law, and the Supreme Court shall render such opinion in writing.”
It is evident from the language used that there is a discretion vested in the Governor as to requiring opinions, and it is equally plain that there is no discretion in the court, if the opinion required involves, upon a given state of facts, an interpretation of any portion of the Constitution or the expression of an opinion upon any point of law. The language is; “ The Governor may require an opinion, and the Supreme Court shall render such opinion.”
While this is true as to the duty of the court in reference to such communications from the Executive, it is equally true that it is not its duty to render opinions of this character to any other officer of the Government except the Governor, or to the person upon whom the functions of the executive office may at any time devolve by reason of suspension, by impeachment, or any other disability within the meaning of the constitutional provisions upon this subject. To answer this communication is, therefore, pro tanto, a recognition of its writer as the Constitutional Governor of Florida — to decline to answer it, is no less than a refusal so to recognize. This dilemma has been a source of no little embarrassment. The writer of the communication has been exercising the functions of the office of Governor from the organi-' zation of the Government of this State under the Constitution of 1868 up to this time, his term of office under the Constitution has not expired, and he is now, whether rightfully or wrongfully, in the exercise of the duties of the office. It is true the communication and exhibits attached, bring to the attention of the court certain proceedings, looking to impeachment, but after mature reflection as to the duty of the court in the premises, I think that an opinion should be rendered.
While I do not think that because the opinions required by the Governor may be upon points of law likely soon to be passed upon by the court in cases involving individual rights, relieves the court from its duty under the Constitution, this being, if a fault, a fault of the Constitution beyond the power of the court to remedy, yet not being required by the communication to pass upon the question alluded to (the question of impeachment), in the event that a negative answer to the first question is given, I shall not consider it.
I now proceed to the consideration of the first question as to which an opinion is required, with the remark that in passing upon any communication of this character, the facts therein stated must be accepted as true, and the points of law arising therefrom, and in reference to which our opinion is required, must be passed upon in this view. No case being before the court in the exercise of original jurisdiction, no evidence can be introduced ; there are no pleadings raising issues, and hence nothing to be proved.
The question is Upon the facts appearing from your communication and exhibits, did a “Legislature of the State of Florida, consisting of a Senate and Assembly, vested with the legislative authority of the State, convene in extraordinary session under your Proclamation of November 3, 1868 ?”
What are the facts with reference to which this question is asked, and the points of law which are involved, to be determined ?
It appears affirmatively from the Journal of the Assembly that there were present on the 3d of November forty members, on the 4th of November thirty-four members, on the 5th of November thirty-one, on the 6th of November thirty, and on the 7th of November thirty-four members.
So far then as the Assembly is concerned, there was a quorum present, whatever construction may be given to thte requirement of the Constitution, to the effect that “ a majority of each House shall constitute a quorum to do businessbut as, to constitute a “ Legislature of the State of Florida vested with legislative power,” (the point to which your inquiry is directed,) it is necessary that a quorum of the Senate within the meaning of the constitutional requirement recited should be present, I address myself to this specific inquiry : Was there a constitutional quorum of the Senate for the purpose of general business, present at any time during this session ?
What are the facts ? As they appear from your communication, and so far as they appear affirmatively from the Journals -of the Senate, (which is a requirement according to decision in People vs. Hatch, 33d Ill., 156,) the highest number present at any time was twelve, and the right of four of these is questioned, upon the ground that since their election as members of the Legislature they accepted and entered upon offices incompatible with legislative functions, thus coming, as is claimed, within that clause of the Constitution of this State which provides that “ no person properly belonging to one of the departments of Government shall exercise any functions appertaining to either of the othersit being claimed that the rule of law applicable to such a case is : The citizen occupying a position in one department of the Government, and being appointed or elected to another, the duties of which are incompatible with the first, is at liberty to accept and qualify and to discharge the duties of the last position; that he is free to elect which he will have, and that his acceptance of the second office is the election of that office, and-the legal effect is the vacation of the other, whether by formal resignation or not.
Such a doctrine has been held in many of the States, New York, Massachusetts, Rhode Island, and Maine, and in the case of Colonel Yell, of Arkansas, (a legislative precedent, 29th Congress, 2d session,) the question was, admitting that he could not hold the position of a Representative in Congress and colonel of volunteers of the United States army at the same time, at what time did he vacate his office as representative ? The decision was, so far as one was made, that there existed a vacancy from the date of the acceptance by him of the commission as colonel.
As'the greater number embraces the smaller, I shall, under our Constitution, (without regard to the special Representative,) address myself to the following question:
Are twelve Senators a constitutional quorum of the Senate of this State, for the purpose of general legislative business, as contradistinguished from its power to punish for contempts, to examine returns, to compel the attendance of absent members, and other powers necessary to its organization ? The whole number of the Senate, excluding the special Representative, is twenty-four. If no less than a majority of the whole number is a quorum, then the least number constituting a quorum is thirteen. Is there anything in our Constitution, or legislative precedent, or judicial decisions, to authorize in estimating a quorum a deduction to be made for vacancies by death, resignation, expulsion, failure to elect, or other cause of this character? While the constitutional provisions on this subject are by no means the same, but on the contrary there is a very great difference, it may be well to institute a comparison between the provisions of the Constitution of the United States and the Constitution of this State, and examine the precedents, as this will'enable us perhaps to come to a more correct conclusion.
I shall consider the Constitution of this State without referenee to sections '1 and 8, Article XVI. Its provisions are:
Section 29, Article XVI. “Thereshall be twenty-four Senatorial Districts, which shall be as follows, and shall be known by their respective numbers from one to twenty-four, inclusive. The First Senatorial District shall be composed of Escambia county, the second of Santa Rosa and Walton,” and so on, enumerating each Senatorial District, including the twenty-fourth. It provides further that “ each Senatorial District shall be entitled to one Senator.”
Section 8, Article IV. “A majority of each House shall constitute a quorum to do business.”
Section 1, Article IV. “ The legislative authority of this State shall be vested in a Senate and Assembly, which shall be designated the Legislature of the State of Florida.”
The provisions of the Constitution of the United States are: Section 2, Article I. “ The House of Representatives shall be composed of members chosen every second year by the people of the several States.”
Section 3, Article I. “ The Senate of the United States ghall be composed of two Senators from each State, chosen by the Legislature thereof.”
Section 5, Article I. “ A majority of each House shall constitute a quorum to do business.”
The language of the Constitution of this State and of the United States, in so far as that a majority of each House is required to constitute a quorum to do business, is precisely similar, but when we come to define the words “ each House” and construe the several articles with reference to its definition, the difference is marked. We have in the Constitution of this State, when we come to define the word “ House,” so far as the Senate is concerned, the following: “ There shall be twenty-four Senatorial Districts, and each Senatorial District shall be entitled to one’ Senator.”
We have in the Constitution of the United States when we define the word “ House,” as to the House of Representatives, “ The House of Representatives shall be composed of members chosen every second year,” &c.
As to the Senate, “ The Senate of the United States shall be composed of two Senators from each State chosen by the Legislature thereof.” ,
The word “ entitled,” with reference to this subject, occurs in the Constitution of the United States in but one place, and that is, in reference to the representation which the States were to have in the House of Representatives anterior to the first census, and hence any decision as to what constituted a quorum of the House of Representatives of the United States, after the first census was completed, was made without reference to the word “ entitled ” in this clause, the whole clause having become inoperative.
All decisions, therefore, made after the first census, were made only with reference to the terms, “ The House of Representatives shall be composed of members chosen every second year,”