Segars v. State
| Decision Date | 14 December 1927 |
| Citation | 94 Fla. 1128,115 So. 537 |
| Parties | SEGARS v. STATE. |
| Court | Florida Supreme Court |
En Banc.
Error to Criminal Court of Record, Dade County; Tom Norfleet Judge.
Charles C. Segars was convicted of highway robbery, and he brings error.
Reversed.
Syllabus by the Court
Statute held void to extent it authorized assistant county solicitors to sign, swear to, and file informations in criminal courts of record (Rev. Gen. St. 1920, § 5975; Const. art. 5, §§ 27, 28). In so far as section 5975, Rev. Gen. Stats. 1920, vests assistant county solicitors with authority to sign, swear to and file informations in criminal courts of record, such statute is in conflict with sections 27 and 28 of article 5 of the Constitution, and to that extent must be held void.
Gordon R. Broome, of Miami, for plaintiff in error.
Fred H Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
The plaintiff in error, Charles C. Segars, was convicted in the criminal court of record for Dade county of the crime of highway robbery and sentenced to a term of years in the state penitentiary. The judgment and sentence has been brought before us for review on writ of error.
The information in this case ran in the name of 'Glenn C. Mincer, assistant county solicitor for the county of Dade, prosecuting for the state of Florida in the said county,' and was signed and sworn to, and apparently filed, by said Mincer as assistant county solicitor, Dade county, Fla.
The only question presented by this record is whether or not an assistant county solicitor is constitutionally vested with authority, under section 5975, Rev. Gen. Stats., to sign, swear to, and file informations in his own name as such assistant county solicitor. This question was raised in the court below by both motion to quash the information and motion in arrest of judgment. There is nothing in the record to indicate that the county solicitor was connected in any way with the initiation or conduct of the prosecution or trial of this case.
In the case of Sawyer v. State (Fla.) 113 So. 736, an attempt was made to raise the same question which is now before us. It was contended by plaintiff in error in that case that the attempt in section 5975, Rev. Gen. Stats., to vest an assistant county solicitor with power to sign, swear to, and file an information in a criminal court of record, was contrary to section 28 of article 5 of the Constitution. It was there held by this court that, for the reasons therein stated, the plaintiff in error in that case was not in a position to raise the point, which is, however, in the instant case, squarely presented. It is here earnestly contended in behalf of plaintiff in error that the assistant county solicitor was without authority to sign and make oath to the information because of the fact that section 5975, Rev. Gen. Stats., attempting to clothe the assistant county solicitor with such power, contravenes both sections 27 and 28 of article 5 of the Constitution of 1885; whereas it is just as earnestly insisted by the Attorney General that a liberal construction of the constitutional provisions is proper here, and, so construed, the statute should be held valid in toto.
Section 24 of article 5 of the Constitution provides for the establishment of criminal courts of record, and sections 25 and 26 prescribe their jurisdiction and number of terms per year. Section 27 reads as follows:
Section 28 of said article 5 reads in part as follows:
'All offenses triable in said court shall be prosecuted upon information under oath, to be filed by the prosecuting attorney,' etc.
Section 5972 of Rev. Gen. Stats., derived from a statute adopted in 1887, says that the 'prosecuting attorney of the criminal court of record shall be called the county solicitor,' etc.; and section 5976, derived from the same act of 1887, provides that 'all offenses of which said court has jurisdiction shall be prosecuted upon information filed by the county solicitor under oath,' etc., and prescribed the form of such oath to be made by such named officer.
Later, in 1903, the Legislature adopted an act now appearing as section 5975 of Rev. Gen. States., authorizing the county solicitor to 'appoint assistant county solicitors,' who shall take oath to faithfully perform their duties, and who
Other sections give the county solicitor authority to use the process of the court to summon witnesses to appear before him and testify under oath as to violations of the criminal law about which they may be interrogated.
It will be observed that the first legislative enactment on this subject after the Constitution of 1885 was adopted, while providing that the 'prosecuting attorney' should be called the 'county solicitor,' further provided that in said court all offenses should be 'prosecuted upon information filed by the county solicitor under oath,' etc. See chapter 3731, Laws of 1887. This is in the nature of a legislative interpretation of the meaning of the constitutional provision, which, while not controlling upon the courts, is at least somewhat persuasive, and tends to offset the later legislative interpretation to the contrary.
One of the most common rules of constitutional and statutory construction is that the express mention or enumeration of a certain thing or things will usually be construed to exclude all things not thus enumerated--expressio unius est exclusio alterius. See numerous cases applying this rule cited in 25 C.J. 220, and 19 Cyc. p. 23 et seq. This is a rule to be used as an aid in ascertaining the true meaning of a constitutional or statutory provision, and not as a rigid rule of universal application. It should not, of course, be so applied as to thwart the evident purpose of a constitutional provision. 12 C.J. 707; State v. Bryan, 50 Fla. 293, 39 So. 929. But it is a rule based upon both logic and common sense, and its application is generally helpful in ascertaining the true meaning and purpose, which is the real object of all construction. State v. Butler, 70 Fla. 102, 69 So. 771, and cases cited. The same thought is sometimes expressed thus: 'Affirmative words may, and often do, imply a negative of what is not affirmed.' District Township v. Dubuque, 7 Iowa, 262; Bryan v. Sundberg, 5 Tex. 418.
There is another rule of construction, closely related to the one just mentioned, and that is that, when the Constitution prescribes the form or manner of doing a thing, that is in effect a prohibition against the passage of a law prescribing a different manner of doing it. 12 C.J. 740; Cooley's Const. Lim. (7th Ed.) 114; State v. Barnes, 24 Fla. 29, 3 So. 433; Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914B, 916; State v. Butler, 70 Fla. 102, 69 So. 771; State v. Yeates et al., 74 Fla. 509, 77 So. 262; Coleman v. Eutaw, 157 Ala. 327, 47 So. 703; District Township v. Dubuque, 7 Iowa, 262; Scott v. Ford, 52 Or. 288, 97 P. 99; Leonard v. Franklin, 84 Fla. 402, 93 So. 688, 691; Bryan v. Sundberg, 5 Tex. 418. In the lastcited case it was held that:
"Affirmative words in a statute, do sometimes,' and it is believed, where the public is concerned in the performance of official duties, they do always, 'imply a negative of what is not affirmed.' * * * Statutes which prescribe and limit the exercise of official duty, ought to receive a strict interpretation, in respect to the powers conferred, and the manner of their exercise; and those powers are not to be enlarged by construction.'
In the case of Coleman v. Town of Eutaw, supra, Justice McClellan, speaking for the Supreme Court of Alabama, said:
'We can deduce from our own adjudications mentioned and from the authorities on which they are rested no other rule than that provisions of the organic law, defining a particular mode in which a power is to be exercised, must be taken as limitations against and restrictions upon the observance of any other mode than that prescribed in the organic law, and that a mode attempted other than that particulary defined can work nothing but a nullity.'
Applying these principles to the provision in section 27 of article 5 of the Constitution that, 'there shall be for each of said courts a prosecuting attorney, who shall be appointed by the Governor and confirmed by the Senate,' and to the provision in section 28 that 'all offenses triable in said court shall be prosecuted upon information under oath to be filed by the prosecuting attorney,' it appears that the Constitution provides for and contemplated but one officer--the 'prosecuting attorney,' called by the statute the 'county solicitor'--to be responsible for all prosecutions in such courts, and to that extent to be a minister of justice, vested with a portion of the sovereign authority of the state, and that he, and he alone, shall make oath to and file the informations which initiate and form the basis for all prosecutions in such court, thereby exercising for and in the name of the state a grave authority, discretion, and responsibility similar to that theretofore exercised by the grand jury of ancient lineage and dignity, which stood...
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...real interests of public justice in favor of all concerned. This discretion is official and personal * * *." Segars v. State, 94 Fla. 1128, 115 So. 537, 540 (Sup.Ct.Fla.1927). It has been held that the duty to prosecute is discretionary and that while an act which a district attorney might ......
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...the exercise of grave discretion in the performance of which he is a quasi-judicial officer representing the state. Segars v. State, 94 Fla. 1128, 115 So. 537; 42 Am.Jur., Prosecuting Attorneys, § 2. Ordinarily, when so acting, he cannot be compelled to answer to a private citizen for error......
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