In re the Executive Communication of the 14th October, 1868

12 Fla. 651

• Court: Supreme Court of Florida
• Decided: October 19, 1868
• Status: Published

Opinion

The justices oí this court are in receipt of an executive communication of the 14th instant, wherein is solicited an opinion as to whether, under Section 1 of Article XVI. of the Constitution, “ a person who was a member of the Secession Convention, and signed the ordinance of secession, can hold any official position, legislative, executive, or judicial, in this State, or act as deputy for any officer, or act in a clerical capacity in any department of the government.”

The provision referred to is, that “ no person shall * * hold any office, civil or military, * * under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of aiiy State Legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.” And all such persons are “ debarred from holding office in the State of Florida ” until the disability shall be removed by Congress.

I. An “ office ” is a public charge or employment.

An “ officer ” is a person commissioned or authorized to perform any public duty.

An “ official act ” is an act done under some authority derived from the law, or in pursuance of prescribed duties, and has the force of law.

“ Each officer in the State, indudiny members of the Legislature,” is required to take an oath or obligation, binding him to “ faithfully perform the duties of the office.” Sec. 10.

An officer of the State, then, is a person in a public charge or employment, commissioned or authorized'to perform any public duty, under an oath to support the-Constitution and Government,, and to perform the duty faithfully.

A mere copying clerk or laborer in a public office is not an officer, (unless he is authorized or required by law to perform certain duties,) but is a servant 'or employee, whose “ order ” or “ certificate ” has no legal force.

" A deputy or assistant must be one whose acts arc of equal force with that of the officer himself, must act in pursuance of law, perform official functions, and is required to take the oath before acting.

TI. The “ Secession Convention,” so-called, was not a “ State Legislature.” Its members were not “ executive ” officers, nor “ judicial ” officers of the State, but merely and strictly delegates ; were not required by any law to take an oath of office, and its record does not show that they were sworn in any form whatever. •

By the passage of the Ordinance of Secession, “ insurrection or. rebellion ” was probably inaugurated, and perhaps “ aid and comfort” were given to the “enemies of the United States;” and if so, those who had “ previously taken an oath ” as certain officers, and subsequently voted for or signed the “ Ordinance of Secession” which passed, are included in the disability mentioned, and until relieved are incapable of holding offices ; hut “ persons who had previously ” been “ members of tbe Secession Convention ” and afterwards “ engaged in insurrection or rebellion ” are not necessarily included in such disability.

Oct. 19, 1868.

The provision referred to is' obviously penal in its character, and judicial tribunals have ever been strict constructionists in dealing with enactments of that class, whether in the fundamental law or in ordinary statutes.

As to the eligibility of persons to be members of the Legislature, the Legislature itself is the sole judge.

For the court,

E. M. Randall, Chief-Justice.

Supreme Court, Tallahassee, Fla.,