¶1I shall not participate in the hearing of this case *902 because I think that when the Court assumed to take jurisdiction of the matter it thereby encroached upon the prerogatives, powers and duties of the Executive Branch of the Government and entered a field where the Judicial Branch of the Government is prohibited by the Constitution to function, unless requested so to do by the Chief Executive, and for the further reason that I think by taking affirmative action the Court would encroach upon the prerogatives vested by the Constitution in the State Senate. It cannot be doubted that it is the duty of the County Solicitor to prosecute the crimes referred to in the order of suspension. When a prosecuting officer refuses to prosecute criminal acts committed within his jurisdiction there may be a good and valid reason for such refusal or failure, while on the other hand such refusal or failure may constitute a gross neglect of duty. In this case whether the failure to prosecute was justifiable or constituted a neglect of duty is a question for the Senate and the Senate alone to determine.
¶2In State v. Joughin, 103 Fla. 877, 138 So. 393, we held:
¶3"The power vested in the Governor to suspend an officer under Section 15, Article IV, of the Constitution is executive. It is in no sense judicial or quasi-judicial."
¶4In the case of State v. Johnson, 30 Fla. 433, 11 So. 845, it was held:
¶5"1. The Governor has power, under Section 15 of the executive article of the Constitution, when acting within the authority there conferred, to hear and decide as to the existence of any alleged neglect of duty in office as a ground for suspending an officer. This authority, whether judicial or administrative in its nature, is vested by the Constituany other branch of the government.' In State, ex rel. Atment, *903 and does not appertain to, and cannot be exercised by, the courts.
¶6"3. So long as the Governor's action in suspending an officer is within the limits of his constitutional power, the courts cannot interfere to arrest his action. He is the exclusive judge, in so far as the courts are concerned, of the sufficiency of the proof of the charge, not merely because the courts have been given no power of review, but for the further reason that the Senate, a branch of the legislative department, has been granted such power."
¶7The opinion in that case was written by Mr. Chief Justice RANEY. It is an exhaustive and well reasoned opinion and in it we find the following:
¶8"The authorities are all to the effect that a grant of the power to remove, either for cause or at discretion, carries with it the exclusive power to hear and decide; and whereas the courts are entirely powerless where the power is discretionary, they are equally so where it is for cause, if the grantee of the power acts within its limits, and upon notice, if notice is required; if the removal is for a cause designated by or following within the grant, the grantee or depositary of the removing power is the sole judge of the sufficiency of the evidence to justify the removal. That such is the case where the power is discretionary, is settled by this Court in State, ex rel. Holland, v. Ledwith,14 Fla. 220. In State, ex rel., v. Doherty, 25 L. Ann. 119, where the executive power of removing the officer was `for refusing or failing to do his duty as prescribed by this Act,' it was said: `The grant of power to the Executive to remove an officer for a certain cause implies authority to judge of the existence of the cause. The power vested exclusively in executive discretion cannot be controlled in its exercise by any other branch of the government.' It State, ex rel. Attorney *904 General, v. Hawkins, 44 Ohio St. 98, the decision was that where charges embodying facts which, in judgment of law, constitute official misconduct, are preferred to the Governor, of which notice is given the members charged, and he acting upon the charges so made removes them from office, his action is final and cannot be reviewed or held for naught by the courts on a proceeding in quo warranto, whether he erred or not in exercising the power conferred upon him. And in Keenan v. Perry, 24 Tex. 253 [24 Tex. 253], where the Governor was given power of removal for certain enumerated causes, the decision was that no principle is more firmly established than that where a special and exclusive authority is delegated to any tribunal or officer of the government, and no mode of revising his decision by appeal or otherwise is provided by law, his action is final and conclusive of the matter, and the law makes him the sole judge of the existence of the cause of removal. Dixon, C.J., speaking for the Court in State, ex rel., v. McGarry, 21 Wis. 496, a quo warranto proceeding where a statute gave a board of supervisors power to remove for incompetency, improper conduct or other cause satisfactory to such board, said, `We are clearly of opinion that the power of the board is absolute and its determination final when acting within the scope of the power. The board may remove for incompetency, improper conduct or other cause satisfactory to the board."
¶9Later in that same opinion the writer said:
¶10"And though this power of suspension might have been bestowed without any right of hearing in the officer, or with the right of hearing before there could be any exercise of power, neither course has been pursued. The provision that the Governor `may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against *905 him are untrue' was not intended to merely give an arbitrary or willful discretion to the Executive to make inquiry or not as might please a caprice or a prejudice, but it was both to impose upon him the duty of hearing evidence upon the charge and to secure to the suspended officer the constitutional right to be heard by the Governor upon the charges which the latter has communicated to him upon suspending him. It is as much the duty of the Governor on suspending an officer to notify him of the cause of the suspension, or charge upon which he has been suspended as it is to suspend when the facts of a particular case, viewed in the light of public weal, demand removal; or as it is to refuse to suspend when they do not seem to demand removal or to reinstate when under a misapprehension he may have erroneously suspended an officer. By this provision last quoted above the officer's right to a hearing has been postponed till after the suspension. This is one of the conditions upon which he accepts the office, and it is as obligatory upon him as are those as to age, residence or bond, or any other which the Constitution or any valid statute may prescribe. That a Governor may give notice of the charges before suspension does not defeat the plain policy of the Constitution, not to require him to do so, nor does it relieve him from the specific duties imposed by that instrument in this matter. It cannot be denied that there may be cases in which the public interest would suffer grievous detriment by postponing the suspension till after the hearing. The hearing contemplated, though its regulation is left to the Chief Executive (at least until the law-making power shall act) is a full and fair hearing and often will take much time. It is always to be presumed that he will not hesitate to reinstate at any time, at least in the recess of the Senate, where it may be shown that he has erred in the act of suspension. *906 This is, of course, a consideration which the people have confided to the conscience of the Executive under his responsibility to them, yet it is patent that the exercise of the executive power to reinstate implies the status of suspension in the officer.
¶11"In reaching this conclusion we have not omitted to give serious consideration to the officer's property rights in his office; the right to its tenure and the enjoyment of its profits and honors against all unlawful invasion. Of course, he is a public agent or servant, and has no such title to his office as prevents the power which gave it from terminating it or changing it. He holds subject to the law of the land as to its termination, modification and as to suspension or removal therefrom. State, ex rel., v. Ledwith, State, ex rel., v. Hawkins, Sweeney v. Stevens, and Donahue v. County of Will,supra; Taft v. Adams, 3 Gray 127. So long as the Governor acts within the limits of his power the courts are powerless. The Constitution has made the Senate the sole check upon any erroneous action on his part. Any mere error of judgment, whether free from or attended by improper motive is beyond our cognizance, and not merely because, as in most of the adjudicated cases there has been given no power to any tribunal to correct or arrest the effect of his error, but for the reason that a branch of the legislative department has been given that express power."
¶12It is true that this Court has heretofore assumed jurisdiction in several cases of this sort, among which was that of State, exrel. Bridges, v. Henry, 60 Fla. 246, 53 So. 742, in which case this Court reversed the Circuit Court in which the late Honorable John W. Malone had entered an order denying the prayer of an information in the nature of quo warranto and refusing to issue writ of quo warranto, and *907 in which he stated as reason for his refusal to grant the writ:
¶13"And the Court, being of the opinion that the Judiciary is without jurisdiction to review the action of the Governor and the Senate complained of in said information."
¶14In that case this Court held:
¶15"Removal from office being authorized only for certain causes, the court may inquire into the existence of the jurisdictional facts; that is, whether the facts upon which the removing power acted were legal cause for removal."
¶16Mr. Justice SHACKLEFORD dissented and wrote an opinion embracing his reasons for dissent. I think that the conclusion of the Circuit Judge in that case was the correct one and that what was said by this Court in that case should now be overruled, unless the Court wishes to perpetuate the error which was then committed.
¶17For the reasons above stated, I recorded my vote against issuing the rule nisi in this case and I now record my position as being against the Court taking any further affirmative action in the matter.
¶19 (dissenting). — I am unable to agree with my colleagues, Justices Whitfield and Terrell, in the conclusion at which they have arrived in this case, and the views expressed by Mr. Justice Buford and the reasons given for his non-participation in this case. I do agree with the conclusion reached by Mr. Justice Davis, but am unable to concur in the opinion and argument which he offers to support it.
¶20 C. J. Hardee was appointed solicitor of the Criminal Court of Record for Hillsborough County on June 1, 1935, to hold office until April 11, 1937. He was suspended from office by executive order dated July 7, 1936, and he filed in this Court an information in the nature of quo warranto against LeRoy Allen, who was by executive order appointed; to succeed him, to test the authority by which the latter occupies the office of solicitor of the Criminal Court of Record and undertakes to discharge its functions. The writ asked for was issued by this Court on the 10th of November, 1936.
¶21 This Court held in the case of Bridges v. Henry, 60 Fla. 246, 53 South. Rep. 742, “that the jurisdictional facts on which a removal from office under Section Fifteen of Article Four of the Constitution was accomplished might be inquired into by quo warranto.” (State, ex rel. Hatton, v. Joughin, 103 Fla. 877, 138 South. Rep. 392.) And in the *890 case of State, ex rel. Hatton, v. Joughin, 103 Fla. 877, 138 South. Rep. 392, it was said by this Court: "quo warranto being a direct attack must be predicated on direct and positive statements of legal .facts supporting the cause of removal” ; also that the power vested in the Governor by the constitutional section referred to above is executive.
¶22 It is in no sense judicial or quasi-judicial, but it involves judgment and discretion on the part of the Governor including the power to hear and decide, but it was stated by this Court in the last cited case that this general rule "is modified by the exception, that such exercise of power being that affecting the lawful rights of individuals, the jurisdictional facts, in other words, the matters and things on which the executive grounds his cause of removal may be inquired into by the Courts.”
¶23 This is true because, as was said in the Hatton case, supra, "One’s right to office and the emoluments thereof is protected by the Fourteenth Amendment,” meaning the Fourteenth Amendment of the Federal Constitution, as his right to exercise and enjoy the office is a species of property which the law will protect and will also redress if he is wrongly deprived of it.
¶24 If it is true that quo warranto in behalf of the claimant to office under executive appointment must be supported by direct and positive statements of legal facts supporting the cause of removal of the officer whom he succeeds it follows that in quo warranto brought by the latter it must appear that the statement of legal facts in the order of his removal was not sufficient to sustain the action of the executive. Therefore, it seems to me that the question presented to this Court by the demurrer to the information and the motion to quash it must turn upon the question whether the facts alleged in the order of removal were sufficient to *891 support the cause of such attempted removal. If it is found that the statement of such facts is not legally sufficient to support the alleged cause of removal on which the executive acted, it follows that the demurrer- and motion to quash should be overruled.
¶25 In the able opinion written by Mr. Chief Justice Raney in the case of State v. Johnson, 30 Fla. 433, 11 South. Rep. 845, the principle is recognized that the officer has a right to the possession of his office, the emoluments thereof and the honor enjoyed in its occupancy. The qualification to such enjoyment is that he accepts the office “subject to the law of the land as to its termination, modification, and as to suspension or removal therefrom” (text 487) by the Governor, so long as the latter acts within the limits of his power.
¶26 That language strongly indicates that it was the view of the learned writer- of the opinion, and of this Court which adopted it, that there were limitations upon the executive power of suspension and removal and if those limitations were disregarded by the Governor in removing an officer and depriving him of his office the executive act in attempted removal would be invalid and so held, by the'Court. If the Governor should attempt, for instance, to remove an officer from office because the Governor personally disliked him or because the occupant of the office was of a different political party or faction from that of the Governor and the latter should set forth that fact in the order of removal as sustaining the alleged cause of “neglect of duty,” a decision by a court of competent authority that the attempted order of removal was an invalid exercise of executive power would not be inconsistent with the views expressed in the case of State v. Johnson, supra.
¶27 Therefore it seems to me that this Court should confine *892 its study to the statement of facts contained in the executive order of removal to determine whether such facts bear a substantial relation to the cause of removal and are legally sufficient, if true, to sustain the order of removal upon the ground of “neglect of duty.”
¶28 The order recites that the relator was suspended for “neglect of duty in office.” Then follows a recitation in the order of alleged facts which the executive states constitutes the cause of removal. In substance these facts are that “gambling” had reached its peak in Hillsborough County during the years 1934 and 1935 and was carried on in all parts of the City of Tampa including the residential portion thereof; that during the year 1934 seven informations were filed charging gambling and that during 1935 no informations were filed charging gambling; that two of those informations were filed in December, 1934, as a result of a raid upoir the Panama Cafe made by city officers at the direction of Mr. Hardee, but that no trials had been had on those informations; that later in 1934 another raid was made on the Panama Cafe led by the relator, yet no informations were filed; gambling was seen in actual operation by him. The recital of facts then, states that the relator gave as an excuse for not filing such informations that the evidence was obtained without a search warrant and that the same excuse was offered for failure to prosecute under the two informations filed by him.
¶29 Aside from the fact that the alleged act of neglect of duty occurred prior to the date of the relator’s commission to office, which was June 1, 1935, and which commissioned him to hold the office until April 11, 1937, and the confirmation of such appointment by the Senate, was tantamount to a disregard or forgiveness of the alleged faults of the officer, if he had been guilty of any prior to such election or ap *893 pointment, as stated in the dissenting opinion of Mr. Justice Davis, the recital of facts which the Governor deemed to be legally sufficient to sustain the charge of neglect of duty is so vague and uncertain that the accused officer could have no conception of the particular act or acts which substantially relate to the cause of removal.
¶30 Assuming that the prosecution of the two informations filed was a continuing duty of the relator,_ yet it is stated that his failure to prosecute was based upon the relator’s opinion that the evidence available to him to support the accusations was insufficient in law. That was an exercise of judgment upon the officer’s part which the order of removal illegally seeks to control.
¶31 It seems to me that no such power is vested in the executive. by Article IV, Sec. 15, of the Constitution, for if it were so there would be placed in the hands of a designing and politically ambitious executive a power to build up the strength of his political organization by intimidation and fear.
¶32 It is not my conception that the framers of the Constitution .intended to place such weapon in the hands of the Chief Executive.
¶33 The recital in the statement that gambling had reached its .peak in Hillsborough County is likewise a vague and meaningless statement furnishing to the relator no definite or specific instance of that particular form of amusement which may be prohibited by law, and for which it becomes his duty to prosecute upon information duly and properly filed based upon affidavits of witnesses of facts sufficient in his judgment to support the accusation. There are hundreds of forms or types of gambling few of which' are prohibited by law and made a crime in this State. Numerous instances may be given of a form of gambling which the *894 law does not prohibit, and which bears no substantial relation to the alleged cause of removal, which may furnish to the Governor, whose conscience is supersensitive on the subject of so-called immoral conduct, an excuse urging him to use the general term of “gambling” as sufficient in his judgment.to warrant the exercise of the power of removal vested in him by the Constitution.
¶34 I am therefore of' the opinion that the motion to quash and the demurrer should be overruled.