author: THORNAL, Justice. GILLIS, Associate Justice

text:
    George BELL, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, En Banc.
    March 13, 1957.

      Robert M. Leite and William D. Green, Perry, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appel-lee.
   THORNAL, Justice.

Appellant Bell seeks reversal of a judgment of conviction and sentence to death pursuant to a jury verdict finding him guilty of the crime of rape.

The principal point for our consideration is the matter of the competency of the nine-year old prosecutrix coupled with the manner in which her testimony was elicited by the State Attorney.

A detailed delineation of the unpleasant facts is not essential to our conclusion. The alleged victim of the crime was the nine-year old daughter of the defendant. She was the principal prosecuting witness. In actuality her testimony was essential to the State’s case. Without it the jury could not have found appellant guilty of the crime. When she was offered as a witness, appellant’s counsel objected to her competency. We mention hereafter the results of the preliminary examination testing her competency. In the course of the examination of the child by the State Attorney on the merits of the case, after she had been held competent to testify, much of the critical testimony was obtained by obviously leading questions. Many of these were objected to by counsel for the appellant. The questions were nonetheless permitted. The jury brought in a verdict of guilty without recommendation of mercy. Appellant was sentenced to pay the supreme penalty by the judgment of the trial court. Reversal of this judgment is here sought.

On the points which we here consider, the appellant contends that the child was not shown to be competent to testify and that the leading questions produced such damaging evidence that he is entitled to a reversal.

The State, of course, contends that the competency of the child was adequately established and that the guilt of the appellant was clearly supported by the evidence.

The crime charged is atrocious and repulsive. The relationship between the appellant and the young prosecutrix only serves to underscore the heinousness of the accusation. However, the odium of the charge cannot be considered as an element in the determination of guilt. The proper administration of justice requires a fair trial conducted in accord with traditional concepts of our jurisprudence. Among these governing rules are those dealing with the competency of witnesses and the orderly processes for presenting evidence for the consideration of judge and jury.

The appellant here has been convicted and sentenced to death almost entirely on the testimony of his little nine-year old daughter, the prosecutrix. A year before the alleged occurrence the child with five small brothers and sisters had been abandoned by her mother to the care of the appellant father. Immediately after the appellant was placed under arrest, the child was delivered into the custody of her mother and an aunt and uncle, all of whom were admittedly antagonistic to appellant. She remained under this influence for some time immediately prior to the trial. Out of this atmosphere of ill-will and antagonism the little girl was sent to the witness stand to testify to the details of the offense.

Appellant’s counsel questioned her competency. Her answers revealed her to be a nine-year old still in the first grade in school. She had never been taught the difference between telling lies and telling the truth. She had never gone to church. She didn’t even know what an oath was. Just prior to taking the witness stand the State Attorney in private conference had told her that she “would go to a penitentiary” if she told a story. Finally the State inquired, “You know not to tell a lie don’t you?” The child replied, “No, sir.” The young witness testified in “the shadow of the penitentiary” rather than in the wholesome light of moral and spiritual suasion to tell the truth.

The prime test of testimonial competency of a young child is his intelligence rather than his age. In addition the infant witness should possess a sense of obligation to tell the truth. Sensibility to this obligation under his oath is one of the turning factors. Fear of temporal punishment may be considered as producing a sort of compulsory veracity. However, we lean to the view that there is really no substitute for the spiritual and moral consciousness that should be the basic inducement to all witnesses to speak the truth.

We are aware of our numerous decisions which accord to the trial judge a very broad discretion in determining the competency of witnesses. It is not, however, a discretion without bounds. It is a sound judicial discretion subject to appellate review. We are not here prepared to hold that the able and long-experienced trial judge who presided in this case abused his discretion. His extensive contributions to the cause of justice would certainly suggest the contrary. However, when considered against the background of ill-feeling and animosity against the appellant to which this pliable, impressionable and unfortunate child had been subjected, we cannot avoid the conclusion that the evidence of her competency was far from sufficient to suggest that she was in any measure mentally or morally equipped to stand up under the pressure of the repeated leading questions of the aggressive prosecuting attorney who had been the one to impress upon the child that the penitentiary could be her lot if she failed to speak the truth.

Bearing in mind the serious question as to the competency of the young prosecu-trix and adding to it the atmosphere in which she testified, her temperament, her lack of experience and actual ignorance, the repeated leading questions of the able prosecutor assume unusual potentials for depriving this appellant of a trial comporting with the requirements of fairness that our Constitution guarantees to the guilty as well as to the innocent. Our view is not to be construed as any disparagement of aggressiveness on the part of those officials charged with the duty of enforcing the criminal laws. However, we should bear in mind that unlike the legendary cat, a man has only one life to surrender. When the State’s executioner sends the lethal charge through his body, there is an element of finality which impresses upon us the essentiality of making certain that he is being punished only after he has been accorded every full measure of justice and fair trial that our system demands.

It appears to us that this record is permeated and riddled with improper leading questions that literally “pulled the switch” to the electric chair. Time and again the damning questions pointing to the guilt of appellant were so framed that the young witness merely had to respond “Yes” or “No”. Throughout the examination of the child the State’s questions “furnished their own answers”. Actually, in this line of interrogation do we find the only direct evidence of guilt. When considered in isolation, we might be inclined to view the holding with reference to the competency of the young witness as being within the orbit of discretion available to the trial judge. It is in the ultimate our holding that the improper interrogation compounded the hazard involved in her obviously questionable competency.

In view of the responsibility placed upon us by Section 924.32(2), Florida Statutes, F.S.A., whereby in a capital case we are charged with the duty to review the entire evidence to determine if the interests of justice require a new trial, we are compelled in this instance to conclude that a new trial is demanded in order that the ends of justice might be served.

The judgment appealed from is reversed and the cause is remanded for a new trial.

Reversed and remanded.

HOBSON, DREW and O’CONNELL, JJ., concur.

THOMAS, Acting C. J., ROBERTS, J., and GILLIS, Associate Justice, dissent.

GILLIS, Associate Justice

(dissenting).

This is an appeal from a judgment of conviction and sentence to death based upon a verdict of guilty without recommendation of mercy of the heinous crime of rape, the victim being the nine-year-old daughter of the defendant.

Errors assigned are six in number, the first three of which question the propriety of the rulings admitting the testimony of the victim, the fourth questioning the propriety of the admission of the testimony of the witness Sauls, an executive officer of the law, the fifth questioning the propriety of the denial of the motion for a new trial, and the sixth and final questioning the propriety of the denial of the motion for the appointment of psychiatrists under Chapter 29881, Acts of 1955, § 917.04 et seq. F.S.1955, F.S.A.

Assignments 1 through 4 may be grouped together for consideration and disposed of contrary to appellant’s contention upon the theory that the competency of a person of tender years to testify, the manner of interrogation and the admissibility of the testimony of such a witness are within the discretion of the Court, the probative force of the testimony being for the consideration of the jury. See Clinton v. State, 53 Fla. 98, 43 So. 312.

As to the testimony of the witness Sauls claimed to have been erroneously admitted because negative in nature, it is sufficient to say that negative testimony if relevant is admissible although sometimes regarded as of little weight. Here the relevancy is apparent as touching matters testified to by the defendant in his accounting for the injury to the child. The specific objection interposed to the question propounded by the State “Was he able to- show you a rope?”, calling for an expression of the opinion of the witness, although technically subject to the objection may not reasonably be said to have prejudiced defendant’s case, followed immediately as it was by a proper question to which no objection was interposed and to which the same negative answer was given.

The fifth assignment — that the Court erred in denying defendant’s motion for a new trial — brings us to a consideration of the sufficiency of the evidence to support the verdict.

The record reflects a sordid story. To recite the details here would serve no purpose but to sully the judicial page. The trial was under the supervision of an able Judge of many years’ experience who saw and heard the witnesses and who approved the verdict. There is nothing in the record to indicate that the jury was influenced other than by the evidence. They were the sole judges of the weight of the evidence and the credibility of the witnesses. It may well be that they were impressed by the defendant’s own account of his discovery that the child had been injured, the time of his discovery, his first statement to his neighbor to the effect that the child must have been violated by a playmate, the later theory that the injury had been inflicted by falling on the root of a chinaberry tree, and that the statement of the child to the same effect was made while in the presence of the defendant and under his domination and after he had threatened to punish her. The doctor who examined the child in the early morning hours testified that she made no statement as to how she had been injured.

The sixth and last assignment is that the Court erred in refusing to grant defendant's motion seeking the application of Chapter 29881, Acts of ,1955.

The State questions the constitutional validity of the statute because of the insufficiency of the title of the Act and the sufficiency of the allegations of the motion.

In recognition of the rule that the question of the reasonableness, expediency, justice, or propriety of an Act within constitutional bounds is exclusively for the legislative department of our government, not subject to revision or control by the courts because contrary to the principles of natural justice or based upon ' conceptions of morality with which the courts may not agree, and confining our observations of the Act in question to a simple and respectful suggestion that it probably marks the matriculation of Florida into that new and apparently growing school, of thought whose leaders are of high intellectual quality, imbued with the idea and spreading the doctrine that all those who commit criminal offenses are mentally deficient and must not be held accountable. Such at least is the general import of the Act in question, governing as it does all classes of crime from simple assault to murder and rape. Under a literal interpretation of the statute the petty thief, the vagrant, may if declared a sexual psychopath be absolutely immune to punishment. However, a determination of the constitutional validity of the statute upon any of the grounds urged by the State is unnecessary to a disposition of the case. Assuming the statute to be valid and here applicable, we are of the view that the motion based thereon is insufficient in that it contains no statement “setting forth facts tending to show that such person is a criminal sexual psychopathic. person” (emphasis supplied). No mention of mental disorder, simply statements of counsel based upon statements to them, all to the effect, charitably expressed and in the language of the street, that the defendant was a sort of social wolf with an inordinate sexual appetite. So radical a departure from the time-honored test of criminal responsibility — the consciousness of right and wrong — as represented by the statute involved requires a sounder basis than here relied upon.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants. v. SORRENTO HOTEL, Inc., Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Ben Gettler, Cincinnati, Ohio, Gramling & Gramling, Miami, for appellants.
    Sibley & Davis, Thomas H. Barkdull, Jr., Miami Beach, Anderson & Nadeau, Patton & Kanner, Miami, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


author: DREW, Justice.

text:
    J. L. BURKETT, Appellant, v. PANAMA CITY COCA-COLA BOTTLING COMPANY, a corporation, Appellee.
    Supreme Court of Florida, En Banc.
    March 13, 1957.

      Cornett, Duncan & Leath, Panama City, for appellant.
    Joseph I. Mathis and William J. Mon-goven, Panama City, for appellee.
   DREW, Justice.

Plaintiff was injured by an exploding bottle which is alleged to have come from defendant’s plant. Plaintiff purchased the bottle from a retail dealer, who kept the bottles in a manner unknown to us through the record. Plaintiff took the bottle in a crate from the retail store and placed it in the back of his car. (Plaintiff testified on deposition that the bottle was in a crate “sitting down on the floor board back of the front seat.”) Plaintiff then drove at least two miles over a dirt road to his destination. At his destination plaintiff began to unload the bottles from his car into a carton on the ground by having Anne Stewart hand the bottles from the car to him. After he took one of the bottles from her, the bottle exploded in his hand causing the injury. Although plaintiff testified that the road was “not rough,” he could not testify as to the condition of the bottles during the trip or at the end of the trip: “I don’t know whether any of the bottles were out of the crate or not * * * ” “I do not have any independent knowledge of whether any of them had fallen on the floor because it was dark in the car and I couldn’t swear whether they were in the crate or not.” Anne Stewart testified in an affidavit that “the case of coca-cola had fallen down to an angle and a number of bottles had fallen down out of the crate.” She further testified : “These coca-colas had been shaken up considerably on the rough ride. One of the coca-colas which I was handing to Mr. Burkett [the plaintiff] broke and struck him on the bridge of the nose. This particular bottle was one of the ones which had fallen to the floor of the automobile.”

The trial judge granted a summary judgment for defendant upon pleadings, depositions and affidavits. Rule 1.36, 1954 Rules of Civil Procedure, 30 F.S.A.

There was no genuine issue as to the fact that the bottle causing the injury had fallen to the floor of his car while plaintiff had the bottle under his control. Only two people had an opportunity to observe the fact, plaintiff and Anne Stewart. Plaintiff had no personal knowledge, but Anne Stewart positively testified that the bottle which injured plaintiff “was one of the ones which had fallen to the floor of the automobile.”

Facts which can be classed as “material” are determinable only through examination of rules which have been established in substantially similar actions. There have been a number of “exploding bottle” cases in this jurisdiction in which the doctrine of res ipsa loquitur has been discussed. The only aspect of these cases necessary to the present holding is the requirement that a plaintiff must make an affirmative showing that after the bottle left the control of the bottler it was not subjected to outside forces which reasonable inference would posit caused the explosion. See Miami Coco-Cola Bottling Co. v. Reisinger, Fla.1953, 68 So.2d 589; Groves v. Florida Coca-Cola Bottling Co., Fla.1949, 40 So.2d 128; Starke Coca-Cola Bottling Co. v. Carrington, 1947, 159 Fla. 718, 722, 32 So.2d 583, 585; and Hughs v. Miami Coca-Cola Bottling Co., 1944, 155 Fla. 299, 19 So.2d 862.

It has been said of the required affirmative showing that “the law does not require that the injured person eliminate each and every remote possibility of injury to the bottle up to the time of the explosion. It is enough if the evidence is such as to permit a reasonable inference in light of all the circumstances that the bottle was not accessible to extraneous harmful influences after it left the possession of the bottler and that it was handled in a reasonably careful manner by the injured person and others who may have had reason to move or touch it.” Groves v. Florida Coca-Cola Bottling Co., 40 So.2d at page 130.

A bottle which a plaintiff has permitted to fall to the floor of a moving automobile has been exposed to “extraneous harmful influences” which prohibit a cause of action based upon a res ipsa loquitur claim against the manufacturer. Therefore, since there was no genuine issue as to any material fact and since the defendant was entitled to judgment as a matter of law, the trial judge properly entered summary judgment for the defendant. Rule 1.36(c), 1954 Rules of Civil Procedure.

The appellant takes a rather curious position “that the statement of Anne Stewart in her affidavit was too incredible to warrant belief in a court of justice.” The argument of counsel based upon the court’s presumed knowledge of what a coca-cola bottle will not do when placed in a crate in the back of a moving car is somewhat less than scientifically appealing. Courts normally act upon proof which is presented as a matter of record, and circumstances in the present case are far from presenting reasons for making an exception.

The plaintiff furthermore claimed a right to cross-examine the witness, Anne Stewart, whose testimony was by affidavit. Apparently he claims a right to cross-examine her before a jwry, because he has made no adequate showing of why he did not secure his right to take the deposition of Anne Stewart, although she was known by plaintiff to be a material witness at the time suit was filed. If there were such an indefeasible right to cross-examine any witness before the trier of facts, there could be no summary judgment upon affidavits. Rule 1.36 clearly provides that there can be such judgment upon affidavits. Cf. Carver City Homes, Inc., v. Edwards Sash, Door & Lumber Co., Fla.1952, 59 So.2d 742. Rule 1.36(e, f and g) provides safeguards in the use of affidavits; for instance, (e) requires them to be made on personal knowledge, to set out facts admissible in evidence, to show competence of the witness in the matter, and permits affidavits to be opposed by depositions. This does not fail to take into account that where there is a genuine issue of fact, summary judgment does not apply. The Federal Court of Appeals for the Second Circuit has apparently adopted a rule, which is exemplified in the case of Arnstein v. Porter, 2 Cir., 1946, 154 F.2d 464, to the effect that a party against whom the affidavit of an interested witness or party is offered in support of a motion for summary judgment can demand the right to cross-examine such witness before the trier of facts if the matter testified to was a matter peculiarly within the knowledge of the witness. This Court specifically does not decide whether or not it would adopt such a rule if the proper situation were before the Court. In the case at bar there is no indication that the witness (who was not a party) had any interest in the suit, and her testimony related entirely to her personal observation of external phenomena. There is no indefeasible right in this situation for the plaintiff to cross-examine this witness before the trier of facts.

Appellant also contends that specific negligence could have been proved under the pleadings, and that since the affidavits and depositions did not conclude the issue of specific negligence, the summary judgment was improper. The material words of the complaint are: “On or about the 13th day of August, 1955, the defendant Panama City Coca-Cola Bottling Company recklessly or carelessly and negligently bottled, or caused to be bottled a certain bottle of beverage known as Coca-Cola, which said bottle of Coca-Cola exploded into and against the plaintiff who was then and there holding said Coca-Cola in his, the plaintiff’s hand.”

Plaintiff suggests that such a complaint be treated as a counter-affidavit analogous to the situation in Booth v. Board of Public Instruction, Fla.1953, 67 So.2d 690. In the Booth case the complaint alleged that certain property had been improved. The answer denied such improvement. The affidavit supporting defendant’s motion for summary decree on this point was by an agent of defendant stating that the property was unimproved “except for a ‘dilapidated shack.’ ” It was in this setting that the court there said “in this case, the complaint having been verified, it should have been accorded equal dignity with the affidavits supporting the motion, and could have been treated as a counter-affidavit.” 67 So.2d 691. In the present case plaintiff alleged that defendant negligently bottled a certain beverage. Defendant denied any negligence. On motion for summary judgment, defendant introduced the affidavit of an expert, who had examined the pieces of the bottle and concluded:

“The presence of the definite star fracture, the sloping fracture surfaces, the rib markings, and the general fracture pattern are all typical of fracture .by external impact.
“The bottle was sound and properly crowned before it was broken by striking it against a hard object.
“The evidence shows that the fracture progressed from the percussion point in three directions. One fracture went upward into the crown through the lip of the bottle, while the other two spiralled downward in opposite directions to meet on the opposite side of the bottle. From this meeting point the smooth fracture split s under pressure up through the lip of the bottle. The pressure of the expanding gas forced the fragments apart and crushed the glass inside the crown, thus forcing a slight flare in the crimp.
“There is no evidence that the bottle was in any way defective, or that the breakage was caused by internal pressure.”

Plaintiff offered no affidavits to show any specific act of defendant which might have been considered a breach of duty. Under such conditions, the mere allegations of “recklessly or carelessly and negligently” bottling which were successful in pleading will not be considered adequate statements of fact to meet affidavits of the type offered by defendant which make far less general conclusions.

Affirmed.

TERRELL, C. J., and PIOBSON, ROBERTS, THORN AL and O’CONNELL, JJ., concur.

THOMAS, J., not participating.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. R. S. LEVY, Daniel Lifter and J. S. Lansburgh, as Trustee, etc., et al., Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.

      J. . W. Brown,- Cincinnati,- Ohio, and Gramling & Gramling, Miami, for appellants.
    Patton & Kanner, Miami, for appellees.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J, and HOBSON, DREW and O’CONNELL, JJ, concur.


author: O’CONNELL, Justice.

text:
    W. C. DENNIS, d/b/a Allapattah Home & Auto Supply, and National Surety Corporation, Petitioners, v. U. L. BROWN, Florida Industrial Commission, and Liberty Mutual Insurance Company, Respondents.
    Supreme Court of Florida, Special Division B.
    March 13, 1957.
    Frank A. Howard, Jr, and Dixon, De-Jarnette, Bradford & Williams, Miami, for petitioners.
    Cosgrove & Rose, Miami, for U. L. Brown, Blackwell, Walker & Gray, Miami, for Liberty Mutual Ins. Co, and Rodney Durrance, Tallahassee, for Florida Industrial Commission, respondents.
   O’CONNELL, Justice.

Dennis, the employer, and his carrier petition this Court for writ of certiorari to review a compensation order of the Florida Industrial Commission. The Commission’s order affirmed the order of a deputy commissioner awarding- payment of compensation to the respondent, U. L. Brown, for temporary total disability.

In 1949, Brown, the respondent claimant, was seriously injured in the course of his employment with petitioner Dennis. Because of those injuries, claimant was adjudicated totally and permanently disabled and Dennis, through his carrier at that time, paid claimant the maximum benefits then recoverable under the Workmen’s Compensation Act, F.S.A. § 440.01 et seq. Medical treatment was continued to be furnished claimant by his employer and the carrier.

In February of 1954, claimant again became employed by the same employer, Dennis. It was necessary for him to wear a brace and use a cane. He could not work outside of the store, as he had done previously as a salesman. He could work only a part of each day. Nevertheless, according to his employer, he was earning the pay he received. On September 30, 1955, claimant fell on a freshly waxed floor and re-injured his back. Dennis’ new carrier, National Surety Corp., furnished medical treatment but controverted claim for compensation. The carrier contended claimant had already been compensated by the same employer for permanent total disability and that therefore no further benefits were payable.

The deputy commissioner found the claimant had regained a certain wage earning capacity and was entitled to compensation for temporary total disability due to the second injury, in spite of the previous award of maximum benefits under the Act. Dennis and his carrier applied for review to the full commission. The order of the deputy was affirmed by the full commission, whereupon this petition for writ of certio-rari was filed.

Petitioners maintain that claimant was' given employment and that he received his earnings out of the generosity, helpfulness and sympathy of his employer and patronizing friends. They say he could not and did not sustain any loss of earning capacity due to the second accident, because at the time thereof he had no earning capacity. Yet they do admit the claimant was selling enough merchandise to earn his salary.

The deputy commissioner found claimant’s situation created an enigma. He felt the answer was sought in the 1955 amendment to our Workmen’s Compensation.Law [which appears now as Section 440.15(5), Subsequent Injury; Special Disability Fund] but that a full answer did not result. He cited in support of his conclusion one case which he felt in point to the instant claim. In that case the claimant had received a 100 per cent permanent disability rating, but the California court allowed compensation for a subsequent accident, upon its interpretation of that state’s subsequent injuries legislation. Smith v. Industrial Accident Comm., 1955, 44 Cal.2d 364, 282 P.2d 64. The court stated, 282 P.2d on page 68:

“If an employe may properly be rated at 100 per cent disability to qualify him for the basic form of workmen’s compensation, even though his earning power has not in truth, for practical purposes, been impaired, it should be at least equally permissible to penetrate the fiction of 100 per cent disability and accept the truth of his remaining earning ability so that the further truth of a subsequent injury with increased actual disability may be compensated from the fund set up for that purpose.”

However, in California a showing of loss of earning power is not a prerequisite to compensation for permanent disability. This fact is stated in the Smith case, supra, and its truth is readily ascertained from referring to the quoted portion set out above. Compensation is based on the physical injury rather than actual loss of earning power, in that state, and therefore we should not rely too heavily on that case in support of the commission’s finding. It is settled in this state that the disability is determined not by the functional loss, but by the loss of wage earning ability. Ball v. Mann, Fla.1954, 75 So.2d 758. However, even in our state we have a schedule of certain injuries which automatically constitute permanent total disability, irrespective of loss in earning power. Section 440.15(1)(b).

Petitioners cite several cases in other jurisdictions which hold that a man cannot be more than totally disabled. O’Brien v. Albert A. Albrecht Co., 1919, 206 Mich. 101, 172 N.W. 601, 6 A.L.R. 1257; Van Tassel v. Basic Refactories Corp., 1926, 216 App.Div. 774, 214 N.Y.S. 491; Plarrington v. Department of Labor and Industries, 1941, 9 Wash.2d 1, 113 P.2d 518.

' In the Harrington case, the rule of the Van Tassel case is cited. The court, in the Harrington case, said that the mere fact that a workman may recover from an injury which has been classified as a permanent total disability for which he has been fully compensated does not negate the fact he has already received all the benefits allowed for permanent total disability. This statement was made immediately after a statement by the court that the theory upon which compensation is allowed is that the workman has sustained a loss of earning power. An opposite holding was cited by the court in the case of Asplund Const. Co. v. State Industrial Comm., 1939, 185 Okl. 171, 90 P.2d 642, but the Washington court felt a statutory distinction brought such about. It quoted [9 Wash.2d 1, 113 P.2d 520] the applicable Washington statute as providing “should a further accident occur to a workman who has been previously the recipient of a lump sum payment under this act, his future compensation shall be adjudged according to the other provisions of this section and with regard to the combined effect of his injuries and his past receipt of money under this act.” Rem. Rev.Stat. § 7679 (g). The applicable statute in Oklahoma was quoted as providing “the fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury; but in determining compensation for the later injury his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury.” 85 O.S.1951 § 22, subd. 6. The Washington court pointed out that the Oklahoma statute made no distinction as to degrees of disability to which it applied and made no exception of permanent total disability. Because its statute contained language substantially different, the Washington court refused to consider the As-plund case as authority on the question.

It will be noted that the statute in Oklahoma referred to above is quite similar to the language used in our own Workmen’s Compensation Act. See Sec. 440.15(5) (c).

The Asplund case was decided in 1939. The question before the court was whether a claimant who had on one date received an injury for which he had been awarded compensation for permanent and total disability could thereafter receive an award for temporary total disability for a second injury. The second injury occurred some sixteen years after the first, while claimant was working for a second employer. For eight years previous to the second injury he had been working at various mechanical and manual labor jobs. The court found the question to be one of first impression and adopted its holding upon its construction of that state’s workmen’s compensation law. It found the statute did not except a previous permanent total disability when it provided an employee might receive an award even though he had previously received compensation for a prior injury. It therefore concluded the workman was entitled to the additional compensation. In reaching that conclusion it considered that the previous adjudication of total disability by the Industrial Commission was, and of necessity, must have been based upon opinion evidence by doctors. The court said it could not, however, overlook the recuperative powers of nature which in the case of the first injury constituted the final arbiter. The court found the claimant had an earning power, irrespective of the prior adjudication of total permanent disability, and that industry saw fit to use this earning capacity. It concluded that the second award was not erroneous because of the first award for permanent total disability.

We fav.or the reasoning of the court in the Asplund case. Our statute, while similar in part to that applicable to the Asplund case, goes further, however. It provides that an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by .itself and not in Conjunction with the previous disability. Sec. 440.15(5) (c),. In the instant case the second injury resulted in a temporary total disability when considered alone. We have held, in International Paper Co. v. Merchant, Fla.1955, 77 So.2d 622, that where a claimant had been paid for a permanent partial disability and thereafter developed an occupational disease which left him totally disabled, he was entitled to full compensation for permanent total disability without deduction of payments made on account of the prior injury. We are of the opinion the reasoning of that case may be extended to the circumstances of this case and no violation of Sec. 440.15(5) (c) results.

The following comments are found in 2 Larson’s Workmen’s Compensation Law, 'Sec. 59.41-59.43:

“There is sound and practical reason for the generally accepted rule that ’ awards for successive or concurrent permanent injuries should not take the form of weekly payments higher than., the weekly maxima for total disability. A man can be no more than totally disabled, and if he is allowed to draw weekly benefits simultaneously from a permanent total and a permanent partial award, it will probably become more profitable for him to be disabled than to be well — a situation which compensation law always studiously avoids in order to prevent inducement to malingering.”

The author comments, however, in a footnote, that such argument is open to question, since a schedule award continues to run even if claimant resumes his normal earnings. Therefore, he says, a potential malingerer’s choice is between total compensation benefits (some percentage of his wages) plus partial benefits, on the one hand, and full wages plus partial benefits on the other. He goes on to say, immediately after the quotation above:

• “However,' no such' policy applies when, as in many states, there is a maximum-number-of-weeks limit on disability payments including even total disability payments, and a claimant receives, concurrently or successively, an injury constituting total disability and another constituting partial * *. Putting the allowances ‘end-to-end’, so to speak, permits full allowance for the specific losses without the criticised feature of making any weekly payment greater than the wages claimant would get if actually working.” (Emphasis ours).
“The capacities of a human being cannot be arbitrarily and finally divided and written, off by percentages. The fact that a man has once received compensation as for 50% of total disability does not mean that ever after he is in the eyes of compensation law but half a man, so that he can never again receive. a compensation award going beyond the other 50% of total.. After having received his prior payments, he may, in future years, be able to resume gainful employment. If so, there is no reason why a disability which would bring anyone else total permanent disability benefits should yield him only half as much.”

Finally, Larson comments, concerning an over-all dollar limit on benefits:

“If the maximum is to have any effect, it must be understood to set a limit on the allowance that can be made for a specific damaging result to a particular member manifested at a particular time. As noted above, after time healing and training have done their work, an injured member may again be susceptible to injury for which maximum compensation is appropriate.”

It is our view that the foregoing comments lend direct support to our finding in this case. Where necessary the author’s comments are susceptible to an extension applicable to the circumstances of the present case. We are of the opinion that an employee, although previously adjudicated permanently and totally disabled and fully compensated therefor, may thereafter acquire a wage earning capacity. If he suffers a subsequent injury which deprives him of such newly acquired wage earning capacity, he may be entitled to compensation for such loss.

Workmen’s compensation acts are but statutory creations. Few statutes have achieved perfection in accomplishing their purpose. The statutes themselves may not evince a perfect logic. For instance, many provide that for a permanent and total disability a man shall be compensated at a percentage of his salary for a certain maximum number of weeks, instead of a period based upon some formula with respect to his remaining life expectancy. Due to the impossibility or impracticality of providing for every conceivable factual situation, application of the statute to achieve a known purpose of legislation may sometimes create a technical inconsistency. We feel that workmen’s compensation acts were designed to remove from the workman himself the burden of his own injury and disability and place it on the industry which he served. Such acts should be liberally construed with the interest of the working man foremost.

Many acts have provided for subsequent injuries, as ours has done. Special disability funds have been created. Such legislative action was no doubt inspired by desire to encourage employment of handicapped workers. In our state, we have also provided for rehabilitation of injured workers. Sec. 440.49, Fla.Stats.195S, F.S. A. This provision includes the case of those previously adjudicated permanently and totally disabled. It contemplates the possibility of one so adjudicated again becoming gainfully employed. To construe our law to be that one who has become gainfully employed as a result of rehabilitation, whether through his own efforts or with the aid of the Commission, may not be entitled to compensation for loss of such rehabilitated wage earning capacity due to a subsequent injury is, in our opinion, contrary to what we believe to have been the Legislature’s intent, and is contrary to common sense.

The petition for writ of certiorari is therefore denied. However, there appears to be some error in the Commission’s computation of the 350 week period of compensation for the injury sustained on April 14, 1949. Our calculations indicate said first period of compensation should be computed to have expired on the 9th day of January, 1956, rather than on the 15th day of March, 1956, assuming the commencing date to have been April 18, 1949, in accordance with the four-day waiting period. If the Commission finds its calculation to be incorrect, it is directed to modify its order accordingly.

THOMAS, Acting C. J., and DREW and THORNAL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. THOMAS JEFFERSON, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Anderson & Nadeau, Miami, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    Clemmie WHITE, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida, Division B.
    March 13, 1957.
    B. L. Solomon, Marianna, for appellant.
    Richard W. Ervin, Atty. Gen,, Jos. P. Manners and George R. Georgieff, Asst. Attys. Gen., for appellee,
   PER CURIAM.

Appellant was tried on four informations each charging manslaughter resulting from culpable negligence' in the operation of a motor vehicle. By agreement of counsel the cases were consolidated and tried together resulting in verdict of guilty as to three cases and not guilty as to one case. Appellant was sentenced to serve seven years in the state penitentiary as to each case in which he was found guilty,- the sentence in the second and third cases to run concurrently with the sentence in the first case. The record shows that appellant’s motor vehicle collided with .an Oldsmobile in which three persons were killed. A passenger riding with him was also killed, the verdict of not guilty being as to the death of said passenger. Appellant was traveling East from Cottondale in the direction of Marianna at about 2:30 p. m.

Appeals were taken from the judgment in each case wherein appellant was found guilty but only one question is relied on for reversal. Was the evidence sufficient to sustain, the verdicts ?

The pertinent part of the material evidence shows that appellant was driving his “pulpwood truck” about 35 or 40 miles per hour in a “no passing zone,” 812 feet in length, the point of impact being approximately one-half the distance between the extremes of the “no passing zone.” Appellant attempted to pass the car leading him which speeded up -and prevented him from passing. The Oldsmobile with which he collided came over the hill at a “fast” rate of speed. Appellant’s motor vehicle and the Oldsmobile commenced zig-zagging as if each were trying to avoid the other. Appellant was on the wrong side of the road, could not get back into his own lane, attempted to turn left onto the shoulder but was unable to do so before the collision. Appellant’s motor vehicle overturned on the North side of the road and the Oldsmobile was struck with such force that it reversed its position and came to rest headed in the opposite direction from which it was traveling. There were no skid marks indicating the application of brakes but the point of impact was fixed by physical evidence as' being at the extreme North edge of the pavement.

Appellant contends that the speed of the Oldsmobile with which he collided and not his own negligence was the cause of the accident; also that when the car which he attempted to pass increased its speed it became impossible for him to pass it, his action was an error in judgment and that under Miller v. State, Fla., 75 So.2d 312, he should not be held guilty of culpable negligence. Appellant’s own testimony shows that he was hauling pulpwood to Cottondale from a point east of the accident, that he had hauled two loads that day, that he usually completed three trips in a day and was going for his last load when the accident occurred. From this testimony it is clear that appellant was familiar with the road and the “no passing zone.” Appellant further testified on cross examination as follows:

“Q. You realized you had crossed the solid yellow line, didn’t you?
“A. Yes, sir, and when I 'seed’ me and him both was on that side, I was going to take the ditch then, but he was too close on me and was driving too fast and dodging around, and I could not make it.”

The record also shows that upon a joint motion of the defense and the state, the jury was allowed to view the scene of the accident. Appellant stated that he was 28 years old and had been driving “nearly ever since I can remember.”

A “no passing zone,” clearly marked as the one in question was, is a red flag to all drivers. It warns all that to pass a car in the zone, even at lawful speeds, is extremely hazardous due to obstructed vision caused by a hill (as in this case) or a curve. To fail to observe it, is to invite tragedy. All the evidence considered, it is our view that reasonable men could have reached the verdict rendered.

Therefore the judgment appealed from should be, and is, hereby affirmed.

Affirmed.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. Morris LANSBURGH and Daniel Lifter, Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis, Thomas H. Barkdull, Jr., Miami Beach and Patton & Kanner, Miami, for appellees.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. SAX ENTERPRISES, Inc., Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


author: THORNAL, Justice.

text:
    Fred WELKER, Appellant, v. The STATE of Florida, and the taxpayers, property owners and citizens of Fort Lauderdale, including nonresidents owning property or subject to taxation therein; City of Fort Lauderdale, a municipal corporation of Florida; Enseller Corporation, a Florida corporation; Walter C. Peak; Lillian G. H. Peak; Charellen Corporation, a Florida corporation; and Della C. Hendricks, all taxpayers and property owners in the City of Fort Lauderdale, Florida, et al., Appellees.
    Supreme Court of Florida, Division A.
    March 13, 1957.

      Crim & Barrs, Fort Lauderdale, for Fred Welker.
    W. J. Kelley, E. L. Heinrich and Mc-Cune, Hiaasen, Kelley & Crum, Fort Lau-derdale, for Enseller Corp., Walter C. Peak, Lillian G. H. Peak, Charellen Corp., and Della C. Hendricks, appellants.
    Julian E. Ross, Fort Lauderdale, for ap-pellee.
   THORNAL, Justice.

Appellant Welker, as a taxpayer, seeks reversal of a decree of the Circuit Court validating an issue of excise tax improvement bonds.

The points raised which assault the validity of the bonds will be discussed hereafter.

The City of Fort Lauderdale proposes .to issue $3,000,000 of excise tax improvement bonds for the construction of the following facilities, towit: (1) an off-street parking lot, (2) a police station, (3) a bridge across New River at Third' Avenue, and (4) a bridge across the Intra-Coastal Waterway and another across Middle River at Sunrise Boulevard.

The income to be used to liquidate the indebtedness is from the following sources, towit: (a) the proceeds of the cigarette tax levied by the City pursuant to Chapter 210, Florida Statutes, F.S.A., to the extent of $2,325,000, excluding from this pledge the cost of constructing the parking lot, (b) the proceeds of a franchise tax collected from Florida Power and Light Company under its franchise from the City, and (c) to the extent available, the proceeds of a municipal utility tax which is subject to a pledge to pay three other bond issues.

At the hearing for validation of the bonds appellant and others, as taxpayers and property owners, registered their objections by their answers. After an extensive hearing at which considerable testimony was offered on all sides, the Circuit Judge entered a decree validating the bonds. Reversal of this decree is here sought.

The contentions of the parties on appeal are reflected by our discussion herewith. We point out that both the bond resolution and the decree of the Circuit Judge preclude any pledge or enforced exercise of the ad valorem taxing power of the City.

The appellant taxpayer assaults the bond issue on the broad ground that by obligating excise taxes, the municipality is indirectly placing an additional tax burden on the ad valorem taxpayers. It is the view of appellant that if these excise taxes were not pledged to the bond issue they would be used for general operations in lieu of ad valorem levies. Hence, he claims that the freeholders should have an opportunity to express their sentiments on the bond pro-posál as a condition .to the valid issuance of the bonds.

We have many times held that the requirements of Section 6, Article IX of the Florida Constitution, F.S.A., with reference to a freeholders election as a condition precedent to the issuance of bonds applies to bonds obligating the ad valorem taxing power of the governmental unit involved. As we shall see, we have also many times held that a pledge of excise tax income with a simultaneous prohibition against an ad valorem levy does not necessitate a precedent expression of the freeholders of the issuing authority. While the appellant offers strong and persuasive arguments to support his position on this point, we are compelled to point out that while the courts of some other states might agree with him, our own precedents are consistently contrary to his position.

Appellant next makes the point that the City of Fort Lauderdale is without authority to pledge the income from the cigarette tax levy, the franchise tax and the utilities tax to support the bond issue, the proceeds of which are to be used for the purposes stated above. Again we must point out that the decisions of this Court are consistently contrary to the position which appellant now wishes us to take. The authority of a municipality to pledge cigarette tax income derived pursuant to Chapter 210, Florida Statutes, F.S.A., in support of an issue of securities for improvements within the authority of the governing statute was clearly recognized in State v. City of Coral Gables, Fla.1954, 72 So.2d 48; and State v. City of Auburndale, Fla.1956, 85 So.2d 611. We recognized the authority of a municipality to pledge utilities taxes as security for revenue bond issues in State v. City of Miami, Fla.1953, 62 So.2d 405. We recognized the authority of a municipality to pledge utility franchise tax income in State v. City of Pompano Beach, Fla.1950, 47 So.2d 515. We could cite many other cases to support the conclusions reached by the authorities last mentioned. They are so numerous, however, that it would unduly burden this opinion to do so.

Next, appellant contends that although the bond resolution purports to limit the pledge of the cigarette tax to the improvements other than the parking lot, that nevertheless it has the effect of pledging cigarette tax income to support the entire bond issue, a part of the proceeds of which will be used to construct the parking lot. He claims that a municipal parking lot cannot be financed with cigarette tax income. This problem causes us very little concern. Actually, the bond resolution excludes the cigarette tax income as a supporting base for that portion of the bonds which will be used to finance the parking lot. Even if it did not, we would have no difficulty in concluding that the construction of an off-street parking facility is within the authorized uses of cigarette tax income as provided by Section 210.03, Florida Statutes, F.S.A. In the cited statute municipalities are authorized to use cigarette tax income for numerous purposes. Among these are: “ * * * the exercise of controls for public safety, * * * and municipal ordinances with respect to public travel, health and safety, * * * We have heretofore approved the construction and maintenance of municipal off-street parking facilities as an aid to travel by eliminating congestion and hazards to life and property through the removal of parked automobiles from the public way. Certainly it requires no stretch of the English language to conclude from the authority granted by Section 210.03, supra, that the construction of an off-street parking facility is directly related to the preservation of the public safety and the protection of the traveling public. If further support for this conclusion is needed, a brief reference to Chapter 183, Florida Statutes, F.S.A., dealing with municipal parking facilities would adequately buttress our position. It is there expressly stated that the free circulation of traffic through the streets of the cities of the state is an essential to the health, safety and general welfare of the public whether it be those who reside in the municipality or those who merely travel through the city.

Appellant makes a further point that the two bridges at Sunrise Boulevard will be constructed on a part of a state highway running through the city and will be competitive with two existing toll bridges in violation of the contract rights of the holders of the toll bridge bonds. We disposed of this argument adversely to appellant’s contention in Gibbs v. Florida State Turnpike Authority, Fla.1957, 91 So.2d 813. However, the record here shows that aside from the rule of law announced in the last cited case, the so-called existing “toll bridges” are in actuality not toll bridges as such. Travelers over the bridges do not pay a toll. The supporting income which is employed to liquidate those bridge bonds, commonly known as “causeway revenue debentures”, is the amount which the municipality derives periodically from the State Road Department through the commonly accepted lease-purchase arrangement now in existence between the Road Department and many other local governmental agencies. Moreover no causeway debenture holder is here complaining even if there were merit to the point and we hold there is none.

Finally, appellant contends that the municipality is using the proceeds of the bonds to improve a state highway, inasmuch as Sunrise Boulevard has been designated as a “municipal connecting link road” in the state highway system. We judicially know that many municipal streets in Florida constitute component parts of the state highway system to the extent that traffic entering the city on a state highway is channeled through the municipality in connecting state highways at other points on the municipal limits. It may be that this boulevard is a part of the state highway system. It is, however, at the same time, according to this record, an essential artery of travel serving the people of the municipality. As to whether muncipal funds should be expended for this particular improvement in the interest of the people of the city is a matter of local concern to be settled by the city officials in their wisdom. It is not a diversion of municipal funds to a non-municipal purpose. It is not a problem for this Court to resolve.

In the ultimate we find that the proposed bond issue is well within the rules laid down by numerous precedents heretofore established by this Court. This being so, the decree of the Circuit Judge validating the bonds is hereby—

Affirmed.

TERRELL, C. J., DREW, J., and ROWE, Associate Justice, concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. DI LIDO HOTEL, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. McALLISTER HOTEL, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. STUYVESANT CORPORATION, a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants. , •

      Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. A. H. S. CORPORATION, a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. B'rown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. LEEVLANS CORP., Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. Saul COHEN, Sidney Raffel, Herbert Robbins, Samuel Cohen, d/b/a President Madison Hotel, Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.

      Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellees.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. BISCAYNE TERRACE HOTEL, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    In re: ESTATE of Max LIEBER, Deceased.
    Supreme Court of Florida, Special Division A.
    Feb. 20, 1957.
   PER CURIAM.

Affirmed.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. MONTE CARLO, Inc., Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    In re: Adoption of Lawrence KUSHNER, a Male Minor Child. Franklyn H. KUSHNER, Appellant, v. Louis F. SNETMAN and His Wife, Bette A. Snetman, Appellees.
    Supreme Court of Florida, Division B.
    March 6, 1957.
   PER CURIAM.

Affirmed.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. of L.), et al., Appellants, v. 2500 COLLINS AVENUE CORPORATION, a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    SEABOARD FINANCE COMPANY, a Corporation, Appellant, v. McCOLLOUGH-FRAZER, Inc., a Corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 6, 1957.
   PER CURIAM.

Affirmed.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. Harry LEVY, Mark Allen Levy Trust, Erwin J. Fried, et al., Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, and Gramling & Gramling, Miami, for appellants.

      Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellees.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW ■and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. CASABLANCA OPERATING COMPANY, a partnership composed of Saul Cohen, Sam Cohen, Herbert Robins and Sidney Raffel, Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellees.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. Abe ALLENBERG, A. Birnbaum, etc., et al., Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellees.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. MARTINIQUE HOTEL, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.

      Sibley & Davis and Thomas H. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. SEA ISLE HOTEL, Inc., Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 225 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. BOCA RATON CLUB, Inc., a Florida corporation, and Hildemart Corporation, a Florida corporation, Appellees.
    Supreme Court of Florida, Division B.
    March 15, 1957.
    J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas H. Bark-dull, Jr., Miami Beach, for appellees.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


text:
    HOTEL EMPLOYEES UNION, LOCAL NO. 255 (A. F. OF L.), et al., Appellants, v. HOTEL DELMONICO, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida, Division B.
    March 15, 1957.

      J. W. Brown, Cincinnati, Ohio, and Gramling & Gramling, Miami, for appellants.
    Sibley & Davis and Thomas IT. Barkdull, Jr., Miami Beach, for appellee.
   PER CURIAM.

Affirmed on authority of Fontainebleau Hotel Corp. v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla., 92 So.2d 415.

TERRELL, C. J., and HOBSON, DREW and O’CONNELL, JJ., concur.


author: TERRELL, Chief Justice.

text:
    In re INVESTIGATION of a CIRCUIT JUDGE of the ELEVENTH JUDICIAL CIRCUIT of FLORIDA.
    Supreme Court of Florida, En Banc.
    Feb. 27, 1957.
    See also 91 So.2d 165.

      Richard H. Hunt, Miami, for petitioner.
    Francis P. Conroy and Jack F. Wayman, Jacksonville, for The Florida Bar, respondent.
   TERRELL, Chief Justice.

Article XI, Integration Rule of The Florida Bar, 31 F.S.A., will hereinafter be referred to as the Integration Rule, and Board of Governors of The Florida Bar' will hereinafter be referred to as the Board, of Governors. Pursuant to the Integration! Rule the Board of Governors subpoenaed petitioner to appear before it on the 15th-day of December, 1956, 9:30 a.m., at the-Gables Room of the Key Biscayne Hotel in the City of Miami to then and there-testify as to certain charges for the purpose of determining whether or not there exists probable cause that the said petitioner is guilty of unprofessional conduct-in violation of subd. 2, Article XI, Integration Rule, Canon 29 of the Canons of Ethics Governing Attorneys and the Canons of Ethics Governing Judges, 31 F.S.A., both of which were adopted by the Supreme Court of Florida January 27, 194L

December 10, 1956, petitioner moved this. Court to quash said subpoena, to enter an. order declaring the Board of Governors-to be without jurisdiction to apply or enforce the disciplinary provisions of the Integration Rule against him in his status-as Circuit Judge, and in and by said order quashing said subpoena so issued and! served upon petitioner and his wife, suppress and invalidate the notice of hearing dated October 4, 1956. Petition further prayed that in the event this Court did not determine the issues presented by said petition prior to December 15, that it enter its order commanding the Board of Governors to desist from further proceedings against petitioner pending determination of the questions raised in the cause. Said petition was heard December 12, 1956, su-persedeas was denied and the case was set for hearing on the merits before this Court en banc January 9, 1957.

On the merits petitioner contends that the Integration Rule confers no authority upon The Florida Bar or its Board of Governors to challenge the judicial conduct ■of petitioner or to discipline him as a Cir■cuit Judge for unprofessional conduct.

The primary support for this contention is Section 29, Article III of the Constitution, F.S.A., particularly the latter part thereof reading as follows: “The Govern- or, Administrative officers of the Executive Department, Justices of the Supreme Court, and Judges of the Circuit Court shall be liable to impeachment for any misdemeanor in office, but judgment in such cases shall extend only to removal from •office and disqualification to hold any office of honor, trust or profit under the State; but the party convicted or acquitted shall nevertheless be liable to indictment, trial and punishment according to law.”

The following provisions of the statutes •and Constitution petitioner says contain secondary support for his contention: (1) Section 1, Article V of the Constitution relating to co-equal origin of Circuit and Supreme Courts: (2) Section S, Article V of the Constitution clothing the Supreme 'Court with appellate jurisdiction in causes emanating from the Circuit Courts, as well •as jurisdiction to issue designated extraordinary writs; Section 11, Article V of the ■Constitution clothing Circuit Courts with •exclusive original jurisdiction in certain matters including intermediate appellate functions; (3) under Section 6, Article V ■of the Constitution Circuit Judges may be called to sit on the Supreme Court in •case a Justice thereof is disqualified or ■otherwise disabled to sit. This provision is implemented by Section 25.08, Florida Statutes, F.S.A., result of which Circuit Judges serve as associate justices of the Supreme Court; (4) Section 25.03, Florida Statutes, F.S.A., authorizes the Supreme Court to promulgate rules relating to pleading and practice for all courts in the state but it does not interfere with the internal government of the Circuit Courts. The real purpose of these secondary supports for petitioner’s contention is to show the separate and independent origin and functions of Circuit and Supreme Court and call attention to the reason why Supreme Court and Circuit Judges with the Govern- or and administrative officers of the Executive Department were subject to impeachment while all others were subject to removal by the Governor on consent of the Senate.

The Integration Rule, says petitioner, was designed to promote high standards of justice, to improve its administration and has exclusive application to persons admitted to and who are engaged in the practice of law, that a Circuit Judge or Judge of any constitutional court, being prohibited from practicing law during his tenure of office and subject to removal from office by the sole power of impeachment, is not an integrated lawyer and may not be disciplined, proceeded against or 'removed from office in any manner other than impeachment. In support of this contention petitioner points out that the Integration Rule was provided to “govern the conduct of members of The Florida Bar in their capacity as attorneys and shall govern all proceedings for discipline of such members.” It also provides that membership in the bar shall be limited to persons admitted to practice law in Florida; and that no person shall engage in the practice of law unless he is “an active member of The Florida Bar” in good standing, that a Circuit Judge in Florida is not permitted to practice law and consequently cannot be an active member of the bar and cannot qualify as a member of The Florida Bar in the capacity of attorney. See Perry v. Bush, 46 Fla. 242, 35 So. 225.

Inspection of applicable provision of the Constitution discloses that judgment in case of impeachment consists only in removal from office and disqualification to hold any office of honor, trust or profit under the state but the party convicted or acquitted shall be subject to indictment, trial and punishment according to law. The House of Representatives is clothed with the sole power to impeach and all impeachments are tried 'by the Senate. Since the House of Representatives is clothed with the sole power of impeachment, it necessarily follows that it has the power to determine whether the charges brought against one amount to a “misdemeanor in office” as contemplated by the .Constitution. It matters not what charge may be lodged against a judge, to be ground for impeachment it must- amount to “misdemeanor in office.” Is “misdemeanor in office” bounded by the definition of misdemeanor used in the statute or at common law or may it include breach of judicial duty or other impropriety in office ? A bill of particulars, or list of the charges against petitioner, is attached to petition but they will be discussed later so we will make no further reference to them at this time.

The law is well settled that when a judge is regularly admitted to practice law and is later elected or appointed and is acting as circuit judge, whatever right as attorney or counselor at law he may have been clothed with by virtue of admission to the bar, and whatever may have been his eligibility to do so was held in suspension during his incumbency on the court and he could not exercise the privilege during the time he held such office. Perry v. Bush, supra; State Bar of California v. Superior Court in and for Los Angeles County, 207 Cal. 323, 278 P. 432; In re Silkman, 88 App.Div. 102, 84 N.Y.S. 1025, 1027; Chambers v. Central Committee of the Oklahoma Bar Ass’n, 203 Okl. 583, 224 P.2d 583. The same cases also approve the doctrine that where the constitution creates an office, fixes its term and provides upon what conditions the incumbent may be removed before the expiration of his term, it is beyond the power of the legislature or any other authority to remove or suspend such officer in any manner than that provided by the constitution. Falloon v. Clark, 61 Kan. 121, 58 P. 990; Lowe v. Com., 3 Metc., Ky., 237; Throop, Pub.Off., Section 341; State ex rel. Holmes v. Wiltz, 11 La.Ann. 439; State ex rel. Robinson v. McNeely, 24 La. Ann. 19; Brown v. Grover, 6 Bush, Ky., 1; Page v. Hardin, 8 B.Mon., Ky., 648; Mechem, Pub.Off., Section 457.

In re Jones, 202 La. 729, 12 So.2d 795, the Louisiana Supreme Court reasoned that since the judge was subject to removal on constitutional grounds exclusively, the Bar of Louisiana had no authority to proceed against him under disciplinary rules governing lawyers. See also In re Meraux, 202 La. 736, 12 So.2d 798, 800, where, among other things, it was held that the official conduct of public officers is not subject to review in disbarment proceedings for what they do officially is not done in the capacity of attorneys at law but by virtue of their office. In re Meraux and cases cited therein are enlightening but not necessarily controlling on the question presented here.

In the case of In re Strahl, 201 App. Div. 729, 195 N.Y.S. 385, the Court approved the majority rule and questioned the wisdom, propriety or the power of the court to pronounce against a judge on the bench punishment that the law provides for misconduct as a lawyer. The case In re New Jersey State Bar Ass’n, 114 N.J.Eq. 261, 168 A. 794, held in effect that when one holds a civil office under the Constitution and is subject to impeachment, he is not subject to judicial inquisition by another arm of the government. In Chambers v. Central Committee of the Oklahoma Bar Ass’n, supra, the Bar Association contended that it was authorized to accuse and try any state or federal judge guilty of misconduct on the bench. In response to this contention, the Court said that the bar’s position overlooked the fact that any such judge is not presently an attorney at law and that in Soda v. Marriott, 130 Cal.App. 589, 20 P.2d 758, it was pointed out that one elevated to the bench is no longer an attorney at law, that a judge is precluded from being an attorney at law so long as he holds the judicial position. In the case of In re McGarry, 380 Ill. 359, 44 N.E.2d 7, among other things, the Court observed that it is clear that disciplinary proceedings may not be converted into a review of the manner in which a judicial officer chooses to carry on his official duties.

Respondent, The Florida Bar, admits that it has no jurisdiction to discipline a Circuit Judge but contends that it does have jurisdiction to discipline a member of The Florida Bar for unprofessional conduct despite the fact that he has become a Circuit Judge.

This contention, says respondent, is supported by the fact that subd. 1, Article II, Integration Rule, provides that “all persons licensed to practice law in this state shall be active members of The Florida Bar immediately upon issuance of license to practice by this Court.” Weston v. Board of Governors of State Bar, 177 Okl. 467, 61 P.2d 229. Respondent also supports its contention with In re McGarry, 380 Ill. 359, 44 N.E.2d 7, 9, 10, 12; 27 Minn.Law Rev., Feb. 1943, page 317; Copland v. Newcomb, 66 Ohio App. 304, 33 N.E.2d 857; In re Spriggs, 36 Ariz. 262, 284 P. 521, 522, 523; In re Burton, 67 Utah 118, 246 P. 188, and cases cited therein.

It is true that the last cited case approved the following rule which supports respondent’s contention:

“We hold, therefore, that where a judicial officer who is a member of the bar of this court commits an act while he is such judicial officer which in the ordinary attorney would be ground for disbarment, his office affords him no protection from such proceedings — leaving expressly undecided the question of the effect of such disbarment upon his official position.”

It is perfectly apparent that the cases relied on by respondent draw a distinction between the official and professional conduct of an attorney and hold that when a judicial officer commits acts which if committed by an attorney would be ground for disbarment, his office would afford him no protection. At first blush, these cases reveal a split of authority on the question we are concerned with at this time, but weighed in the light of the constitutional provisions and the factual conditions from which they emanate, they are readily explainable and do not rule the question here.

The fact that the pertinent part of our Constitution, Section 29, Article III, limits impeachment to the Governor, the Cabinet (administrative officers of the Executive Department), Justices of the Supreme Court and Judges of the Circuit Courts is very significant. The Governor singly, or with the assistance of the Cabinet, administers or executes every law, statutory or constitutional, of statewide application and in many instances of county or district application. The Supreme Court and Circuit Judges interpret these laws where question is raised as to their meaning and guide the administrative officers in their application. The independence of the Executive and Judicial Departments would certainly contemplate that if their actions are to be questioned and reviewed, it should not be by those whom they direct or over whose conduct they have supervision but by the people or representatives of the people to whom they owe allegiance. The independence of the Executive and Judicial Departments are safe-guarded in that the House has the sole power of impeachment and the Senate is vested with the sole power to try impeachments. As to independence of departments see Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527, and McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580.

Under Section 29, Article III of the Constitution, impeachment is imposed only for “misdemeanor in office.” Misdemeanor in office as ground for impeachment has a much broader coverage than the common law misdemeanor as usually defined and applied in criminal procedure. As applied to impeachment, “misdemeanor in office” may include any act involving moral turpitude which is contrary to justice, honesty, principles, or good morals, if performed by virtue or authority of office. “Misdemeanor in office” is synonymous with misconduct in office and is broad enough to embrace any wilful malfeasance, misfeasance, or non-feasance in office. It may not necessarily imply corruption or criminal intent. 40 C.J., Misconduct, p. 1221; 58 C.J.S., p. 818; Yoe v. Hoffman, 61 Kan. 265, 59 P. 351; Reid v. Superior Court of Trinity County, 44 Cal.App. 349, 186 P. 634; Stanley v. Jones, 197 La. 627, 2 So.2d 45. In Words and Phrases, citing Yoe v. Hoffman, supra, it was said that the phrase “Misdemeanor In Office,” when referring to impeachment should be applied in the parliamentary sense and when so applied it means misconduct in office. Something which amounts to a breach of the conditions tacitly annexed to the office, and includes any wrongful official act or omission to perform an official duty.

In Stanley v. Jones, supra [197 La. 627, 2 So.2d 51], it was held that “misdemeanor in office” within the constitutional provision that all state and district officers shall be liable to impeachment for high crimes and misdemeanors in office, LSA-Const. Art. 9, § 1, means any misconduct in office. In State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477, 480, 482, applying a statute providing that any clerk who shall knowingly and wil-fully do any act contrary to the duties of his office, or shall knowingly and wilfully fail to perform any act or duty required of him by law, he shall be deemed guilty of a misdemeanor in office authorizing his removal on information that he has been guilty of a “misdemeanor in office” V.A.M.S. § 51.270, but said the Court, a Circuit Judge was without jurisdiction to remove him [Clerk of the Circuit Court, account of his having been informed against for murder, wholly disconnected with his office].

This Court is committed to the doctrine that where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner. Weinberger v. Board of Public Instruction of St. Johns County, 93 Fla. 470, 112 So. 253; Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876; Amos v. Matthews, 99 Fla. 1, 126 So. 308; State ex rel. Ellars v. Board of County Commissioners of Orange County, 147 Fla. 278, 3 So.2d 360; Thomas v. State ex rel. Cobb, Fla.1952, 58 So. 2d 173, 34 A.L.R.2d 140. Here the Constitution provides that one impeached for “misdemeanor in office” may be removed from office and disqualified to hold any office of honor, trust or profit under the state. Whether convicted or acquitted as result of impeachment the party so acquitted or convicted is liable to indictment, trial and punishment according to law. Since a Circuit Judge must be twenty-five years of age and an attorney at law, Section 3, Article V, Constitution, and the impeachment strips him of his office only, he is still an attorney at law and may be subject to discipline by The Bar but not until he is found guilty in an impeachment proceeding or until his tenure as judge ends.

This is true because (1) under the scope of impeachment for “misdemeanor in office,” as applied by the weight of authority pointed out in this opinion, some, if not all, the charges against petitioner as detailed in his petition might subject him to impeachment, depending on the showing made before the House of Representatives when sitting to consider impeachment charges; (2) impeachment charges concluded, whether convicted or acquitted, petitioner would still be an attorney at law subject to prosecution and punishment according to law because if impeachment results in conviction, the one convicted is merely removed from office while if he is acquitted or convicted, there may or may not be shown to exist a basis for prosecution and punishment in a court of law; (3) respondent contends that petitioner should be disciplined for unprofessional conduct as distinguished from alleged official misconduct as a judge. We do not think it proper to determine at this time whether the charges against petitioner constitute a “misdemeanor in office”; that will be determined by the House of Representatives if impeachment proceedings are brought. Eight charges are laid against petitioner; they are broad in scope but how many of them may constitute a “misdemeanor in office” in the judgment of the House of Representatives it would not be proper for us to say at this time.

We have examined the cases relied on by both petitioner and respondent, including the criticisms of them by each. They present a variety of view on the main question presented, but we are convinced that this variety of view arises from the difference in language and application of the pertinent constitutional and statutory provisions relating to impeachment and removal from office and not otherwise. In some jurisdictions like Ohio it appears that they have statutory or other provisions authorizing prompt removal of all officers for any misconduct involving moral turpitude or for other causes provided by law, upon complaint and hearing such method of removal to be in addition to impeachment or other method of removal authorized by the Constitution

In this state, county and some other officers not subject to impeachment may be removed in a somewhat similar manner, but such removal must be reported to the Senate for investigation and concurrence. If the Senate refuses to concur, the suspended officer is automatically reinstated and his compensation lost during suspension is restored. There is no summary method provided in this state for removing an officer subject to impeachment. It may be admitted that impeachment is a slow and tedious process but it is the only method provided by the law of this state and we are bound by it. It is our duty to interpret the law as given us by the people in the Constitution or by the Legislature. We are not permitted to substitute judicial cerebration for law or that which we think the law should be and command that it be enforced.

Elsewhere in this opinion we called attention to In re Burton, 67 Utah 118, 246 P. 188, and other cases approving the rule that where a judicial officer who is a member of the bar commits acts which if committed as attorney would be grounds for disbarment, his official position would afford him no protection in a disciplinary proceeding that may result in disbarment. Respondent contends that this should be the rule in Florida but we think not because, as heretofore pointed out, the right of an attorney to practice law in Florida is “suspended and continues to be suspended so long as he occupies the official position of Circuit Judge.” The reason being that the “rights, duties, privileges and functions of the office of an attorney at law, counselor, or advocate, are so inherently incompatible with the high official functions of a judge of one of our Circuit Courts, with their vast range of jurisdiction, both original and appellate, that express inhibitory legislation on the subject would seem to be superfluous, and work of supererogation.” After all is said the law of the forum controls. Whether convicted or acquitted as result of impeachment the one so charged is subject to be indicted, tried and punished according to law. If trial and punishment for infractions of state law may follow impeachment it would seem that discipline for infractions of the Integration Rule would be permitted and should take the same course.

This is a somewhat extended resume of the legal aspect of the question presented— may a Circuit Judge in this state be disciplined under the Integration Rule? All we have said may be summarized in this: Circuit Judges in Florida are subject to impeachment under Section 29, Article III of the Constitution. Impeachment may be for any “misdemeanor in office” which appears to cover every species of official wrong. The Integration Rule was designed to discipline for unprofessional conduct. Any wrongdoing committed by a public official in an official capacity may or may not be classified as “unprofessional conduct” depending on the nature of the alleged wrong. Respondent admits this but says the inherent power of this Court authorizes it to discipline a Circuit Judge, he being an attorney despite his being subject to impeachment.

We do not think this can be true because the Constitution clearly contemplates that impeachment proceedings should first be exercised since they are imposed for official wrong and the Circuit Judge’s right to practice law is suspended while he is on the bench. Official wrong and unprofessional conduct are in many respects entirely different and call for different treatment. At any rate, disciplinary proceed.-ings cannot be leveled at a Circuit Judge who is charged with official wrong until after his conviction in an impeachment proceeding. If impeachment proceedings result in conviction and removal from office, the Judge removed would automatically resume his status as attorney at law subject to be disciplined under the Integration Rule provided he has committed acts of unprofessional conduct of such nature as to subject him to discipline by The Bar.

Petitioner has raised the point that a Circuit Judge is not bound to respond to a witness subpoena which is issued by the Board of Governors in the exercise of its disciplinary functions. We do not consider that he is entitled to claim such a broad exemption. A judge is not excused from responding to a subpoena when The Bar within the orbit of its authority is conducting an investigation into the conduct of a lawyer or any other proper matter upon which information held by the judge can throw light. If such a hearing develops into an investigation of the judge himself, he then, of course, may exercise his constitutional right against such investigation as announced herein.

What we have here said with reference to the authority of the Integrated Bar to discipline one holding the office of Circuit Judge prior to conviction in an impeachment proceeding is in actuality a recognition of' a limitation on our own authority. In disciplinary matters the Board of Governors of the Integrated Bar serves merely as an adjunct or administrative agency of this Court with authority to make recommendations. We deem it appropriate in this instance to add that the officials and members of the Board of Governors of The Bar have throughout the matter conducted themselves with great credit to the profession. They have proceeded under difficult circumstances with the highest degree of integrity, patience and sincerity. For this they are commended.

The petition is granted and respondent is enjoined from further proceedings against petitioner until further order of this Court.

It is so ordered.

HOBSON, ROBERTS, DREW, TBOR-NAL and O’CONNELL, JJ., concur.

THOMAS, J., not participating because of illness.