State v. Hocker

• Decision Date: 30 July 1897
• Citation: 22 So. 721,39 Fla. 477
• Parties: STATE ex rel. CLYATT v. HOCKER, Judge.
• Court: Florida Supreme Court

22 So. 721

39 Fla. 477

STATE ex rel. CLYATT v. HOCKER, Judge.

Florida Supreme Court

July 30, 1897

Mandamus by the state, on the relation of Lee J. Clyatt, directed to William A. Hocker, judge of the circuit court for the Fifth judicial circuit. Peremptory writ awarded.

Syllabus by the Court

SYLLABUS

1. The term 'office' implies a delegation of a portion of the sovereign power to, and possession of it by, the person filling the office; a public office being an agency for the state, and the person whose duty it is to perform the agency being a public officer. The term embraces the idea of tenure duration, and duties, and has respect to a public trust to be exercised in behalf of government, and not to a merely transient, occasional, or incidental employment. A person in the service of the government, who derives his position from a duly and legally authorized election or appointment, whose duties are continuous in their nature, and defined by rules prescribed by government, and not by contract, consisting of the exercise of important public powers, trusts, or duties as a part of the regular administration of the government the place and the duties remaining though the incumbent dies or is changed, is a public officer; every 'office,' in the constitutional meaning of the term, implying an authority to exercise some portion of the sovereign power either in making, executing, or administering the laws. A state officer is one who falls within this definition, and whose field for the exercise of his jurisdiction, duties, and powers is coextensive with the limits of the state, and extends to every part of it.

2. Chapter 4539, Laws approved June 5, 1897, entitled 'An act to regulate admissions to the bar of this state, to create a board of legal examiners, and to provide for a uniform system of legal examinations,' held to be unconstitutional and void, because it creates state officers in the board of legal examiners therein provided for, and fails to provide for their election by the people or appointment by the governor, as required by the constitution, but makes them appointive by the supreme court, contrary to the constitution, and, contrary to the constitution, fixes their terms of effice for a period longer than four years.

COUNSEL Syd. L. Carter, for relator.

W. A. Hocker, in pro. per., and E. J. L'Engle, for respondent.

OPINION

TAYLOR, C.J.

Lee J Clyatt, by his petition for mandamus, filed as an original proceeding in this court, alleged that he was over the age of 21 years, and a resident and citizen of Alachua county, in the Fifth judicial circuit of Florida, of which judicial circuit the respondent is the presiding judge; that on the 9th day of July, A. D. 1897, at Ocala, in Marion county, within said judicial circuit, he applied by petition to the respondent, as judge, for admission to the bar of said circuit court, and submitted with said petition satisfactory evidence that he was 21 years of age and of good moral character, and thereby prayed the said judge that he, the said judge, should examine into his qualifications, or require such examination to be made by two members of the bar of said court, and, if found to be qualified, that he, the said judge, should grant to him a license to practice law in the several courts of the state of Florida, according to the provisions of rules 1 and 2 of the rules of practice for the government of the circuit courts in common-law actions; but that the said judge then and there refused, and still refuses, either personally to examine into his qualifications to be admitted to the bar of said circuit court, or to appoint two members of the bar of said court to make such examination, whereby he, the said Clyatt, is deprived of his right to be put to his examination touching his qualifications to practice law in the courts of this state, and, if found qualified, to be licensed to so practice law. Upon this petition an alternative writ of mandamus issued from this court to the respondent as circuit judge, returnable on the 20th of July, 1897.

The respondent now moves to quash the alternative writ upon the grounds: (1) Because the alternative writ shows that the application made by relator to respondent to be granted license to practice law was made under common-law rules 1 and 2 of the rules of practice prescribed by the supreme court of Florida (18 South. vi.), and under and in pursuance of the law as contained in Rev. St. Fla. § 979. (2) Because the power and authority to license attorneys at law is now exclusively conferred upon a state board of legal examiners by the provisions of chapter 4539, Laws approved June 5, 1897, entitled 'An act to regulate admissions to the bar of this state, to create a board of legal examiners, and to provide for a uniform system of legal examinations.'

The recent act of the legislature thus urged as the respondent's reason for refusing to entertain the relator's application for examination and admission to practice law, and as the ground of his motion to quash the alternative writ, is as follows:

'Chapter 4539--[No. 25.] 'An act to regulate admissions to the bar of this state, to create a board of legal examiners, and to provide for a uniform system of legal examinations.

'Be it enacted by the legislature of the state of Florida:

'Section 1. That the state board of legal examiners is hereby created, to consist of five (5) members, who shall be appointed by the supreme court of Florida, one of whom shall hold his office for one year, one for two years, one for three years, one for four years, and one for five years, and each until his successor shall be appointed and qualified, and each year thereafter another examiner shall be appointed for the term of five years in the stead of the examiner whose term shall have expired. Said board shall have the power to make by-laws and rules necessary for the fulfillment of their duties.

'Sec. 2. It shall be the duty of said board of legal examiners to examine all applicants for admission to the bar of this state, in respect to their intellectual, moral and professional qualifications, in accordance with such uniform and general regulations as they may adopt and publish. When said board, after such examination, shall be satisfied of the qualifications and fitness of an applicant, and upon his taking the oath required by law, they shall grant him a certificate to that effect, which certificate, when registered as hereinafter provided, shall entitle him to practice law in all of the courts of this state.

'Sec. 3. That said board shall hold at least one examination a year in each of the circuits of this state, from which applications shall be received. Two members with the authority of said board, may conduct any such examination, in accordance with the rules of the board; provided, that the subjects for such examination shall first be prescribed by the said board.

'Sec. 4. Said board of legal examiners shall be entitled to collect from each person examined, a fee not to exceed the sum of five dollars, which fees shall be used to defray the expenses of said board. The expenses of said board shall not be paid or chargeable to this state.

'Sec. 5. All certificates so issued by said board shall be filed with, and registered by, the clerk of the supreme court, for which service he shall be entitled to the same fee as is now provided by law for certificates of admission to the supreme court.

'Sec. 6. All laws or parts of laws in conflict herewith, or any part hereof, are hereby repealed, and this act shall take effect from its approval by the governor.'

The relator meets this motion to quash the alternative writ with the contention that the said act of the recent legislature is unconstitutional and void: (1) Because it violates the following section 27 of article 3 of the state constitution: '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.' (2) Because it further violates the following section 7 of article 16 of the constitution: 'The legislature shall not create any office the term of which shall be longer than four years.' (3) Because the act of admitting an attorney to the practice of law at the bar of the courts is a judicial act, and the exercise of a judicial function, and that it is such a judicial power as cannot be delegated by the legislature to a board of legal examiners of its own creation; that in so doing the statute violates article 2 of the constitution, that prohibits the exercise by any person belonging to any one of the three great departments of the state government of any power appertaining to either of the others.

If this act of the late legislature does not violate any of the mandates, limitations, or restrictions upon legislation as contained in the constitution, then the respondent was right in refusing to entertain the application of the relator; but, if it violates the organic law, it is void, and furnishes no reasonfor such refusal.

The first and second grounds urged against its constitutionality make it necessary to respond to the questions: (1) What is an office, within the contemplation of the quoted provision of the constitution requiring the legislature to provide for the election by the people or appointment by the governor of all state and county officers not otherwise provided for by the constitution? And are the members of the 'state board of legal examiners' provided for by this act such officers as are required by the constitution to be elected by the people or appointed by the governor? (2) Is the said state board of legal examiners such an office as that the...