Blitch v. Buchanan

• Decision Date: 12 November 1930
• Parties: BLITCH, Superintendent of State Prison v. BUCHANAN.[*]
• Court: Florida Supreme Court

131 So. 151

100 Fla. 1202

BLITCH, Superintendent of State Prison v. BUCHANAN.^[*]

Florida Supreme Court

November 12, 1930

En Banc.

Error to Circuit Court, Union County; A. Z. Adkins, Judge.

Habeas corpus proceeding by J. W. Buchanan against J. S. Blitch, as Superintendent of the State Prison. To review the judgment the Superintendent of the State Prison brings error.

Reversed and remanded, with directions.

J. W Buchanan was convicted of murder in the first degree with recommendation to mercy, and sentenced to life imprisonment for the murder of J. P. Brandt. Buchanan v. State, 95 Fla. 301, 116 So. 275. He was afterwards convicted of murder in the first degree without recommendation to mercy and sentenced to capital punishment by electrocution for the murder of W. C. Mobray in the same engagement in which Brandt was killed. Buchanan v. State, 97 Fla. 1059, 122 So 704. A warrant was issued by the Governor for the execution of the death sentence by the superintendent of the state prison under the statute. In habeas corpus proceedings before a circuit judge, chapter 9169, Acts of 1923, authorizing electrocution, and the judicial sentence and the executive warrant commanding execution of the death sentence by electrocution were held to be void, and J. W. Buchanan was 'discharged from the effect and operation of said judgment and sentence and said death warrant.' A writ of error was allowed and taken under section 5444(3580), Compiled General Laws of Florida 1927.

BROWN, J., dissenting.

COUNSEL

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for plaintiff in error.

Davis & Pepper, or Perry, W. C. Hodges, of Tallahassee, and Sears & Sears, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J. (after stating the facts as above).

In support of the final order discharging the petitioner from the sentence to capital punishment, it is in effect contended that a sentence of death by electrocution duly imposed for a capital offense cannot be legally executed by the superintendent of the state prison, because such superintendent is not elected by the people or appointed by the Governor, under section 27, article 3, Constitution; or, in other words, it is in effect contended that only an officer, who under the law of the state is elected by the people or appointed by the Governor, can legally execute a judicial senctence to capital punishment.

Section 27, article 3, Constitution is:

'The Legislature shall provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution, and fix by law their duties and compensation.'

A somewhat similar provision appears in previous Constitutions.

The quoted organic provision does not command that all state and county functions, not otherwise provided for by the Constitution, shall be performed only by officers who are elected by the people or appointed by the Governor. The purpose of the section is to provide that, when a state or county office is created, the incumbent of the office shall be elected by the people or appointed by the Governor, unless otherwise provided by the Constitution. In view of section 27, article 3, of the Constitution, governmental functions requiring independent judgment, discretion, and authority can in general legally be exercised only by officers who are elected by the people or appointed by the Governor, unless otherwise provided or permitted by the Constitution. See State v. Hocker, 39 Fla. 477, 22 So. 721, 63 Am. St. Rep. 174; State v. Jones, 79 Fla. 56, 84 So. 84; McSween v. State Live Stock Sanitary Board, 97 Fla. 749, 122 So. 239, 125 So. 704, 65 A. L. R. 508; In re Advisory Opinion to Governor, 49 Fla. 269, 39 So. 63; In re Advisory Opinion to the Governor, 76 Fla. 500, 80 So. 17; Dade County v. State, 95 Fla. 465, 116 So. 72; State v. Board of Public Instruction of Duval County, 98 Fla. 66, 123 So. 540. See, also, Westlake v. Merritt, 85 Fla. 28, 95 So. 662. There are exceptions to the above general rule, as, for example, the statutory and inherent power of a competent court to appoint suitable persons to perform functions in the court or to execute its orders and mandates, when no officer is available for that purpose, to the end that the court may not be hindered or rendered impotent in the complete exercise of its judicial functions. See King v. State, 43 Fla. 211, 31 So. 254. There may be other exceptions. See sections 4755(3019), 8247(5974), 4574(2877), Compiled General Laws; State ex rel. Attorney-General v. Givens, 48 Fla. 165, 37 So. 308.

Section 27, article 3, Constitution, does not prevent a statute from requiring public ministerial duties, not involving the exercise of official judgment or authority, to be performed by persons who are engaged in the public service, though not officials, when some other provision of the Constitution is not thereby violated. All governmental functions are not required by the Constitution to be performed by officials who are elected by the people or appointed by the Governor. Many functions that are not among 'the powers of government,' which are by the Constitution divided into three departments, and that do not involve independent official judgment, discretion, and authority, may be performed under statutory authority by persons who are not elected or appointed to fill offices, when such functions may be so performed under the command or direction of officers who are elected by the people or appointed by the Governor. When the Constitution does not require particular functions to be performed only by those who fill an office, statutes may authorize such functions to be performed by persons who, though not officers, are engaged in the public service, where such performance does not involve the exercise of an independent governmental discretion, judgment, or authority, but the duty assigned is to be performed as commanded or directed by a duly elected or appointed officer or by a tribunal having the right to exercise some of 'the powers of the government,' when no provision or principle of law is thereby violated. See State v. Sheats, 78 Fla. 583, 83 So. 508.

There is and has been no such office as death sentence 'executioner' in this state. Formerly the statutes imposed the duties of 'executioner' upon the several sheriffs who are county officers; but, there being no office established for the purpose, the function of executing a judicial death sentence may be performed, as is now provided by statute, without violating the provisions of section 27, article 3, Constitution.

The statute defining 'murder in the first degree' provides that the offense 'shall be punishable by death.' The means and manner by which the death sentence is executed are regulated by other statutes, there being no organic provisions on the subject.

If at common law the actual physical execution of a death sentence was required to be by an officer, the common law may be changed by statute, if the Constitution is not violated. A statute of this state expressly excludes the common law 'so far as the same relates to the modes and degrees of punishment.' Section 7126(5024), Compiled General Laws of Florida, 1927.

Each of the first three Constitutions of the state of Florida contained the following:

'The general assembly shall declare by law what parts of the common law and what parts of the civil law, not inconsistent with this constitution, shall be in force in this State.' Section 6, article 16, Constitution of 1838; section 5, article 15, Constitution of 1861; section 6, article 16, Constitution of 1865.

Section 1, article 17, Constitution of 1838, which became effective after March 3, 1845, provided:

'That all laws or parts of laws now in force, or which may be hereafter passed by the governor and legislative council of the Territory of Florida, not repugnant to the provisions of this constitution, shall continue in force until, by operation of their provisions or limitations, the same shall cease to be in force, or until the general assembly of this state shall alter or repeal the same.'

Section 1 of No. 55, an act relating to crimes and misdemeanors, approved February 10, 1832, provides:

'That the common law of England, in relation to crimes and misdemeanors, except so far as the same relates to the modes and degree of punishment, be and the same is hereby adopted and declared to be in full force in this Territory.' Acts 1832, page 63.

This provision is brought forward in the several revisions and compilations of the general laws of the state and now appears in section 7126(5024), Compiled General Laws of Florida 1927, in the following language:

'The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this State where there is no existing provisions by statute on the subject.'

See, also, section 87(71), Compiled General Laws, 1927.

The Constitution contains no provision relative to punishments for crime or to the execution of sentences imposed by the courts upon persons convicted of crime, except the following: Section 8, Declaration of Rights, forbids 'cruel or unusual punishment or indefinite imprisonment'; section 20, article 3, forbids the passage of special or local laws 'for the punishment of crime or misdemeanor'; and section 32, article 3, provides that 'the repeal or amendment of any criminal statute shall not effect the prosecution * * * of any crime committed before such repeal or amendment.' No person shall be deprived of life, liberty, or property without due process of law. Section 12, Declaration of Rights.

The Constitution in section 2, article 13, provides that 'a State Prison...