In case No. 642, a petition for writ of habeas corpus, we issued an order to show cause. The respondent replied by a return suggesting to the court that the cause is now moot. The purpose of a habeas corpus proceeding is to inquire into the legality of the petitioner's present detention. Sneed v. Mayo, Fla. 1953, 66 So.2d 865, Fla. 1954, 69 So.2d 653. Since the respondent no longer claims the right to detain the petitioner in his custody this cause is now moot. An appropriate order will be entered dismissing the petition for writ of habeas corpus. This leaves pending only the certiorari proceedings in case No. 671.
By his petition for writ of certiorari Hyman Martin seeks an order of this court quashing an order of the circuit court denying Martin's motion to quash a subpoena directed to and served upon Martin.
Pursuant to a praecipe made and filed by the state attorney the clerk of the circuit court issued a grand jury subpoena in the name of the state directing the sheriffs of the state to summon Hyman Martin to appear before the Judge of the Circuit Court at the Courthouse in Fort Lauderdale on Wednesday, the 23d day of March, 1966, at 11 o'clock A.M., to testify and in truth to speak in behalf of the State of Florida in a certain matter before the grand jury impaneled and sworn to inquire in and for the body of Broward County. After service of the subpoena Martin moved the court to quash the subpoena upon many grounds all to the ultimate effect that the subpoena directed him to appear before some undesignated judge of the circuit court; that there was no presently existing grand jury organized, convened, impaneled or sworn, either when the subpoena was issued or when the subpoena was served or at the time of the filing of the motion to quash; and that the subpoena was procured to be issued by the state attorney without legal authority and contrary to law. The court denied the motion to quash.
At the hearing on the motion to quash it was established that the fall term of the Circuit Court for Broward County ended on March 7, 1966, at which time the grand jury for that term was discharged. The spring term of that court was attended by a judge of that court on the first day of that term on March 8, 1966, at which time the spring term began. A grand jury for the spring term was drawn and summoned but the grand jury had not been impaneled and the grand jurors had not been sworn. For convenience in terminology we will hereafter refer to this status as a grand jury not yet in existence. Such a grand jury may not, of course, perform any of the duties nor exercise any of the powers of a grand jury. It cannot be said therefore that the state attorney caused this subpoena to be issued to secure this witness to appear before that grand jury not yet in existence, as he is directed to do when "so required by the grand jury" pursuant to F.S.A. § 932.17. In the second part of F.S.A. § 27.04 the state's attorney is allowed the process of the circuit court to summon witnesses to appear before him to testify as to any violation of the criminal law. The subpoena here was not such a command to Martin.
A grand jury has a specially valued place in our system of jurisprudence. It is a common law institution which has no independent existence but is a part of and an adjunct to the court. It is one of the common law institutions specifically retained in our constitution.
A state attorney is a constitutional officer.
Both the grand jury and the state attorney are a vital part of the processes for the administration of justice. Their duties are closely interrelated. The statutes in prescribing some of the duties of grand jurors provide that they shall inquire into all indictable offenses triable within the county which are presented to them by the prosecuting attorney.
It is apparent from all of the foregoing that the constitution and statutes impose a duty upon the state attorney to prosecute in the circuit court any and all violations of the criminal laws of which that court has jurisdiction either upon his own information or upon indictment by the grand jury. If any indictment has not been found or any information filed for such an offense, then all indictable offenses triable within the county should be presented to the grand jury by the state attorney. Obviously, the state attorney can only present to the grand jury indictable offenses triable within the county through the process of subpoenaing and presenting witnesses before the grand jury, and it is therefore his duty. If the law imposes a duty upon an officer to accomplish a stated governmental purpose then the law also confers by implication every particular power necessary or proper for complete exercise or performance of the duty that is not in violation of law or public policy. In re Advisory
In support of his contention that the subpoena was issued without authority of law and was therefore invalid and in rebuttal of the state's argument of implied power Martin relies primarily upon the decision in Ex parte Peart, 1935, 5 Cal.App.2d 469, 43 P.2d 334. That case was concerned with a statute very similar to F.S.A. § 932.17; however, the court there noted that under the laws of California the duties of the prosecuting attorney were merely to attend upon and give advice to the grand jury and not to institute proceedings before it. As we have previously noted, the duties of a state attorney in Florida are not so limited.
Certiorari is denied.
ANDREWS, J., concurs.
WALDEN, J., concurs in Case No. 642 and dissents with opinion in Case No. 671.
WALDEN, Judge (dissenting).
What is the factual background of this petition? Essentially, the state attorney on his own motion and without the knowledge, consent or requirement of the grand jury, it being then non-existent, commanded the issuance of a grand jury subpoena under F.S.A. § 932.17, infra, to petitioner, Martin, directing him to appear and testify at a certain time before the grand jury. The trial court seconded by a majority of this court approved this procedure.
This clear manifestation of legislative intent forecloses both the need and the possibility for employment of statutory construction. Had the legislature intended the state attorney to have the power to initiate grand jury subpoenas at his own behest, it would have so provided. It has not done so. When the controlling law directs how a thing shall be done, that is, in effect, a prohibition against its being done in any other way. Alsop v. Pierce, 1944, 155 Fla. 185, 19 So.2d 799.
The assailed subpoena, designed as a grand jury subpoena under F.S.A. § 932.17, supra, was clearly premature and defective because its issuance was not required by the grand jury. Neither does any other statute exist which would afford legitimacy to the process.
Does the common law give sanctuary? This writer is in nowise persuaded that the common law authorized the happenings here found. Assuming that it did, the comprehensive statutory enactment found in F.S.A. § 932.17, supra, together with the powers afforded the state attorney in F.S.A. § 27.04 (state attorney can summon witnesses to testify before him), invade and fill the field so as to serve as a repealer by implication.
While the state attorney may, whenever required by the grand jury, attend and furnish legal advice, the grand jury is not obliged to accept him as its advisor, or, if it does choose to do so, it is not obligated to follow his advice. Nowhere is it found that the state attorney controls, directs or supervises the decisions and affairs of the grand jury. It follows, of course, that the ultimate decisions as to what matters a grand jury will consider and what witnesses it will choose to call rest solely in the bosom of the grand jury.
In this light it is paradoxical to say the least for the state attorney in advance of the grand jury's birth to order issuance of grand jury subpoenas. Not being clairvoyant, he can only speculate as to what matters the grand jury will choose to consider and what witnesses it will wish to call. While his guesses may be educated they are none the less guesses. Further, there is the possibility that the grand jury's formation will temporarily abort due to challenge or that its call or impaneling will be postponed to the end that no grand jury will be in existence on the subpoena's return date. Thus, the subpoena, instead of being absolute, contains many unwritten conditions, an unpalatable circumstance.
Does it really make any difference? The compulsive features of a subpoena necessarily infringe upon the rights and liberty of a citizen. Thus, because of its seriousness it should be issued in accordance with law and not idly, speculatively or provisionally.
Was the prophecy implicit in the issuance of the subpoena to the effect that the grand jury wished petitioner to testify before it accurate? While this court cannot actually know, it may be fairly inferred that it was inaccurate. Why? At any time during the months that have intervened since its impaneling, the grand jury by the extraordinarily simple expedient of directing the issuance of a subpoena under F.S.A. § 932.17, supra, to petitioner, Martin, could have caused his appearance before it and thereby eliminated his objection, solved the problem and rendered this issue moot. It did not do so. Faced with the clear statutory language and the easy do-it-yourself remedy in case of error, it comes as no surprise that this is a case of first impression in Florida.
If the analysis here made is correct, then who may be considered to have an interest
It is true that so far as can be learned there is only one case in point, O'Hair v. The People, 32 Ill.App. 277, decided in 1889, and it does permit the procedure about which complaint is made. It recites three factual reasons in justification at page 281:
Without laboring these conditions, they simply do not obtain today in Florida under our practice and procedure, and I am unable to find any need or justification for the state attorney to independently subpoena a witness to appear before the grand jury.
I dissent by reason of these comments, feeling that the subpoena should have been quashed as its issuance under the circumstances was contrary to public policy, without sanction of law, and violative of the rights of petitioner.