FLORIDA. 



305 



Reed had the right officially to solicit the 

 opinion of the court, whenever, after the ad- 

 journment of the Senate, he saw fit to do so ; 

 that he had a lawful right, after such adjourn- 

 ment, to resume the power and proceed to the 

 discharge of the duties pertaining to the Ex- 

 ecutive Department, whenever he saw fit. Yet 

 it was wise to address the constitutional ad- 

 visers of the Executive upon the matter, before 

 resorting to any measure which would have 

 disturbed the peace of the community." 



The reply of the court to Governor Reed's 

 communication was as follows : 



SUPREME COURT OF FLORIDA, ) 

 TALLAHASSEE, April 29, 1872. f 

 Ills Excellency HARRISON" KEED, Governor of Florida : 



SIR : In reply to your communication of the 17th 

 day of this month, we have the honor to state our 

 conclusions as follows : 



Your impeachment is still pending before the Sen- 

 ate, which is the only tribunal authorized to acquit 

 you, under the constitution, and, until you are ac- 

 quitted or discharged by that tribunal within the 

 meaning of the constitution, you are suspended. 



It maybe true that the action of the Assembly and 

 Senate, in the matter of your impeachment at the late 

 session of the Legislature, would entitle you to have 

 the said impeachment proceedings dismissed, and 

 that the Senate should discharge and acquit you 

 therefrom, but this is a question which can be legal- 

 ly determined by the Senate alone, that being the tri- 

 bunal before which the matter is pending, and the 

 court which has over the entire subject-matter both 

 exclusive original and final jurisdiction*. Were you 

 not suspended, we are inclined to think that it would 

 be our duty in ordinary questions, notwithstanding 

 the want of jurisdiction in this court over the subject- 

 matter involved in any question you might ask, to in- 

 dicate simply in an advisory manner what was the 

 law of such a case. This, however, would not deter- 

 mine the question, and would have no legal effect. A 

 case of this kind will be found in 12 Florida Re- 

 ports, 686, and to the action of the court there we 

 refer, as illustrating our view under such circum- 

 stances. Even if the case were one which might be 

 adjudicated in this court, our opinion in this way is 

 only advisory, and would not directly affect individ- 

 ual rights, or the legality of acts, and would not re- 

 store you to an office held and exercised by another. 

 If it was the office you sought to recover, you would 

 have to resort to the proper proceeding to oust the 



Lieutenant-Governor Day, however, is neither the 

 de jure nor de facto Governor. He is in no sense 

 Governor. He is Lieutenant-Governor, exercising 

 the functions of the office of Governor. You are still 

 de jure Governor. In case of a contest between you 

 and the Lieutenant-Governor, as to the right to exer- 

 cise executive functions, if we were of the opinion 

 that the law gave to his acts the same standing as acts 

 of de facto officers, it would perhaps result that you, 

 being suspended and not restored, could not require 

 pur opinion, that power of office, like all others, be- 

 ing suspended. In such a case, we are inclined to 

 think that you would not be entitled to demand our 

 opinion while there was an adverse party exercising 

 the functions of the office of Governor, unless his acts 

 in office and title to office were void. 



In the_present state of the impeachment proceed- 

 ings against you, your power to demand our opinion 

 is suspended. To give an opinion, under all the cir- 

 cumstances, we think, could be properly viewed by 

 the Senate as unsolicited advice by this court upon 

 a question which the Senate alone can determine. 



A purely voluntary opinion by this court, upon a 

 subject of the greatest importance then pending be- 

 fore the Senate, might be calculated to embarrass its 



VOL. XII. 20 A 



action, and might perhaps be viewed as an imperti- 

 nent suggestion as to its duty in the premises. 

 Whether you are entitled to a discharge, that court 

 must determine. 



With the earnest hope that the Senate may bring 

 these proceedings to a speedy and just termination, 

 we have the honor to be, with much respect, 

 Your Excellency's obedient servants, 

 O. B. HART, 



JAS. D. WESTCOTT, JR., 

 Justices of the Supreme Court of Florida. 



On the very -day that Governor Reed made 

 his application to the Supreme Court, Acting- 

 Governor Day issued a proclamation conven- 

 ing the Legislature in extraordinary session on 

 the 22d of April, and, in lieu of affixing the 

 Great Seal of State to the proclamation, pro- 

 claimed that the same had been " secreted or 

 stolen. 11 The Legislature met on the 22d, but 

 no quorum was present in either House until 

 the 26th, when the acting Governor submitted 

 a message, in which he spoke of the " most 

 atrocious attempt by Governor Reed to seize 

 the powers of the government under color of 

 self-asserted right, and in defiance of the judi- 

 cial proceedings of a high constitutional forum, 

 by which he was deprived of all authority 

 whatever." Regarding his own power and 

 purposes, he said: "Whatever may be the 

 opinion of the supreme judicial authority of 

 the State upon the question of the legal effect 

 of the proceedings thus far held by the Senate 

 in the suspension from office of Governor Reed, 

 I do not deem it disrespectful, during the pen- 

 dency of the consideration of such opinion, to 

 call your attention to the paramount necessity 

 at all times of recognizing and abiding by the 

 de facto executive authority of the State. No 

 department of the government is more essen- 

 tial for the preservation of the peace and order 

 of the community. Its powers and agency are 

 distributed over the State in larger proportion 

 than those of any other branch of the govern- 

 ment, and are brought more directly in contact 

 with the people. It is the immediate representa- 

 tive of the sovereign will of the people, and upon 

 its vigorous and discreet action the courts and 

 all judicial authority rely for the ultimate vindi- 

 cation of justice and the security of good gov- 

 ernment. In this view of my own duty, I 

 hold the conduct of Governor Reed and all his 

 abettors as revolutionary and criminal, and in 

 no manner justifying the countenance or sup- 

 port of any law-abiding citizen, until having 

 been declared hy a tribunal of competent 

 jurisdiction entitled to resume his executive 

 functions. It is therefore tbat I feel bound by 

 rny oath, and by my sense of public duty, to- 

 compel obedience to my authority, and to use 

 every power in me vested by law to suppress 

 all attempts to subrert it." 



On the 2d of May the impeachment pro- 

 ceedings were resumed, hut the managers fail- 

 ing to bring forward evidence, or take any ac- 

 tion for prosecuting the trial, and, the Senate 

 refusing to grant any postponement, an order 

 was adopted on the 4th by a vote of 10 to 7, 

 granting the motion of the counsel for tha- 



