Bailey v. State , 155 Fla. 597 ( 1945 )

Upon further consideration of this case on petition for rehearing, I am more than ever convinced of the soundness of the reasoning set forth in the dissenting opinion of Mr. Justice ADAMS, on the original hearing, with reference to the construction that should be placed upon Section 40.19 Fla. Statutes 1941, and upon which he reached the conclusion that the method of ordering the sheriff to summons jurors from the body of the county can only be resorted to when it becomes necessary to do so "to complete the panel for the trial of the cause."

Not only is this construction correct, in my opinion, from the language of Section 40.19, but its correctness is made clear by the other provisions of Chapter 40 of our Florida Statutes, 1941, in which Chapter the then existing statutes relating to jurors were assembled and codified.

Section 40.01 prescribes the qualifications of jurors. They must be "law abiding citizens of approved integrity, good character, sound judgment and intelligence, and not physically or mentally infirm." It is this type of men which the county commissioners are required to select.

Section 40.02, paragraph 1, provides that in all counties not having a jury commission, the county commissioners shall hold a meeting during the first week in January, or as soon thereafter as practicable, "and at such other times as the circuit judge may order," for the purpose of "personally" selecting jury lists from among the lists of male persons who are qualified to serve as jurors under Section 40.01. They cannot delegate this important duty to any one else. The, list selected shall embrace not less than 250 nor more than 500 persons, which list shall be signed and verified by the commissioners, filed with the clerk of the circuit court and by him recorded in the minute book. Later sections of the same chapter regulate very strictly the placing of these names in the jury box, the locking of the box, its custody, how names shall be drawn therefrom by the circuit judge, and the order by the circuit judge to the sheriff to summons the persons named in the venire so drawn, etc.

The fourth paragraph of said Section 40.02 (which is quoted in Mr. Justice ADAMS' opinion) provides that: "The circuit judge may require the county commissioners to select additional jury lists from time to time as may appear to such judge to be necessary to avoid the names selected from becoming exhausted." (Italics supplied). The word "may" as above used, should be construed to mean "must."

This Court has held that where a statute says a thing "may" be done by a public official for the public benefit, it is to be construed that it must be done. Mitchell v. Duncan, 7 Fla. 13; Jones v. State, 17 Fla. 411; Weston v. Jones, 41 Fla. 188, 25 So. 888; Seaboard A. L. Ry. Co., v. R. R. Commissioners,100 Fla. 1027, 130 So. 587. See also Graham v. City of Tuscumbia,146 Ala. 499, 42 So. 400; People v. Commissioner of Highways, 22 N.E. 596.

The object of these statutory provisions was to get completely away from the former dangerous system under which, when the names drawn and summoned proved to be insufficient for the trial of any cause, the sheriff could be ordered by the court to summon "from bystanders or from the body of the county" a sufficient number of jurors "to complete the panel for the trial of such cause. (Sec. 2784 R.G.S.) The former system made possible what was sometimes referred to as "a hand-picked jury."

The object of the changes made in the statutes was to avoid any possibility of favoritism in the selection of jurors in any case, and to enable the courts to more effectively carry out that constitutional provision which guarantees to all persons accused of crime "an impartial jury." Section 11, Declaration of Rights.

The only remnant of the old system, bearing on this question, which was retained in our General Statutes of 1941, was Section 40.19, which deleted the authority of the court to order the summoning by the sheriff of "bystanders," but retained the words "from the body of the county." However, this section of the Statute, 40.19, limited its applicability to the completion "of the panel for the trial of the cause," and was not, as we view it, intended to be used for the formation of an entirely new panel, as was done in this case.

Furthermore, even this remnant of the old system, this Section 40.19, was rendered unnecessary by the inclusion of paragraph "(4)" of Section 40.02, Fla. Statutes 1941, above referred to. If that paragraph is complied with, the exhaustion of the jury box during any term of court can be avoided. One of the deputy sheriffs who testified in this case, and who had served for quite a long period, said that the method of getting the entire panel of 100 jurors, by the sheriff and his deputies summoning them from the body of the county, as in this case, was something "unusual; that this was the first time a jury had been selected in that way."

The Legislature recognized that in some instances the jury lists selected by the county commissioners near the beginning of each year might not prove to be sufficient for the entire year, and so provision was made in Section 40.02, par. "(4)", for the selection by the commissioners of additional jury lists during the remainder of the year when required to do so by the circuit judge. Only the circuit judge can require this further action by the county commissioners. It is a great and important power and, by the terms of the statute, should be exercised whenever it is apparently necessary to do so in order "to avoid the names selected becoming exhausted." It appears that in this case, the circuit judge had six days before the date set for trial in which to exercise this authority, as he had drawn from the jury box the last names in such box on September 14, whereas this case was set for trial September 20, but instead of exercising such authority vested in him by the fourth paragraph of Section 40.02, the circuit judge, on motion of the State Attorney, on September 17, 1943, ordered the sheriff to summon "from the body of the county one hundred good and lawful men to serve as a special venire of jurors in the case." In so doing, the able and greatly respected circuit judge doubtless thought he was justified by Section 40.19, supra, but if, as we view it, his order was erroneous and not authorized by the statute, the jury in this case was illegal and its verdict null and void. The mere fact that the circuit judge acted in perfect good faith could not of course alter this conclusion.

The word "complete" as used in Section 40.19, must be given its ordinary and usually understood meaning. Both the ordinary meaning, and the dictionary meaning also, is, in substance, that the word "complete" means to finish, or perfect something already begun — not to bring into existence something new. And this meaning of the word is supported by many court decisions. See Words Phrases. In both the contingencies provided for in Section 40.19, the action authorized is to be taken only when necessary "to complete the panel" for the trial of the cause.

The order of the court with reference to the summoning of "one hundred good and lawful men" from the body of the county was addressed to the sheriff, not his deputies. Section 40.19 confers authority to summon only upon the sheriff. "Good and lawful men" means men who possess the qualifications of jurors as set forth in Section 40.19. The selection and summoning of men for jury service therefore requires the exercise of discretion and judgment. This record shows that some 70 to 75 of the 100 jurors were selected and summoned by deputy sheriffs, each of whom exercised his own judgment and discretion as to whom they would summon. This was one of the grounds of challenge to the venire. Mr. Justice ADAMS, in his able dissenting opinion in this case, in which this writer concurred, held that the ruling of the trial court on this point was free from error; citing Section 30.07, F.S. 1941, which says: "Sheriffs may appoint deputies to act under them who shall have the same powers as the sheriff appointing them," etc. Upon further consideration, I am of the view that this statute cannot be constitutionally applicable to a case like this, where such an important official discretion is vested by the statute (40.19) in the sheriff. At common law the summoning of a grand jury was a function performed by the sheriff and the manner of their selection was in his discretion. Hicks v. State, 97 Fla. 199, 120 So. 330. The office of sheriff has always been an important office, and one that requires the exercise of considerable discretion. Under Section 27 of Art. III of our Constitution all State and county officers must be either elected by the people or appointed by the Governor. If a deputy sheriff, appointed by the sheriff, has the same powers as the sheriff, then we have a full fledged officer who is neither appointed by the Governor nor elected by the people. So I am inclined to the view that this statute cannot be applied where the official discretion of an officer, such as a sheriff, is concerned. The reasoning in the unanimous opinion of this Court in Segars v. State, 94 Fla. 537, 115 So. 537, strongly supports this view. In that case, we called attention to one of the principles of the law of agency to the effect that an agent in whom is reposed a trust and confidence, or who is required to exercise discretion or judgment, cannot delegate the performance of his duties to another without the consent of his principal. And in that case it was said;

"If public officers could assign or delegate to others the grave duties requiring judgment and discretion, which they were personally appointed or elected to perform, there would be an early end to responsible representative government. There are certain things in civil life as well as on the field of battle as to which the government accepts no substitutes. Has the principal, the State, consented to the delegation by the county solicitor to his assistants of the power and discretion to initiate prosecutions; i.e., the filing of informations in the criminal court of record? The Legislature has, by the statute now appearing as Section 5875, R.G.S., attempted so to do, but as above shown, such attempt is in conflict with the higher law, the Constitution, which expressly imposes this important power and duty upon the prosecuting attorney (county solicitor) appointed by the Governor and confirmed by the Senate."

I think the petition for rehearing should be granted.

CHAPMAN, C. J., and ADAMS, J., concur.