the criminal court of record in and for Hillsboro county, Florida; that said Turman qualified as solicitor for the court aforesaid, reference being made to a copy of his oath of office filed with the secretary of state, attached to the information, marked "Exhibit A"; that on June 8, 1899, a commission was duly issued to said Turman commissioning him solicitor of the criminal court of record in and for said county of Hillsboro, reference being made to a copy of the commission attached to the information, marked "Exhibit B"; that said Turman entered upon the duties of said office on the date aforesaid, to wit, June 8, 1899, and held and executed the duties and functions of said office as solicitor aforesaid up to April 27, 1901; that said Turman is entitled to said office, to hold the same and execute the duties and functions thereof, for four years from the date of said commission, to wit, June 8, 1899. Wherefore said William B. Lamar, attorney general of said state, for said people, and in the name and by the authority thereof, on the relation of Solon B. Turman, prays the consideration of the court in the premises, and that Solon B. Turman, the relator, be restored to the office of county solicitor of the criminal court of record, and due process of law against the said Frank M. Simonton in this behalf to be made, to answer the said people by what warrant or authority he claims to use, enjoy, exercise, and perform the functions, franchise, and powers of the office aforesaid. The affidavit of Solon B. Turman was appended to this information, to the effect that the matters of fact set forth therein are true. There were also attached, as exhibits, copies of the acceptance, and the oath of office of relator, dated June 1, 1899, and the commission issued to him June 8, 1899. This commission, signed by Gov. Bloxham, and countersigned and sealed by Secretary of State Crawford, after reciting that "Solon B. Turman hath been duly appointed by the governor and confirmed by the senate, according to the constitution and laws of the state, to be county solicitor of the criminal court of record in and for Hillsboro county, from the 8th day of June, A. D. 1899, for the unexpired term of P. O. Knight, resigned, which term will expire on April 27, A. D. 1901," declares that the governor does thereby "commission the said Solon B. Turman to be such county solicitor according to the constitution and laws of said state for the term aforesaid." There was also attached to the information a certificate dated June 6, 1901, by the Honorable Jos. B. Wall, judge of the Sixth judicial circuit (which embraces Hillsboro county), and a letter from the attorney general to Solon B. Turman, dated June 3, 1901. Judge Wall certified "that Solon B. Turman is related to me by affinity, to wit, he is my nephew-in-law, and that I am disqualified from hearing or deciding any cause or controversy in which he may be interested." The letter of the attorney general

states, "You are hereby authorized to bring an information in the nature of quo warran to in any circuit court of this state in my name as attorney general of the state of Florida against Frank M. Simonton to test his right and title to the office of solicitor of the criminal court of record for the county of Hillsboro, provided no costs in such proceedings shall accrue against the state of Florida." On June 7, 1901, the judge of the Fifth judicial circuit, in his circuit, made an order reciting the disqualification of Judge Wall, and that the attorney general, upon the relation of Solon B. Turman, had moved the court for leave to file an information in the nature of quo warranto against Frank M. Simonton, solicitor of the criminal court of record for Hillsboro county, and granting leave to file such information, and a rule against said Simonton requiring him to show cause at a certain time and place why the writ of quo warranto prayed for in said information should not issue, and directing service of the rule and information upon said Simonton. On June 14, 1901, the same judge, in his circuit, made an order denying the motion of respondent, Simonton, for an extension of the time for filing his return to the rule to show cause, and directing that such return be made and filed on June 25, 1901, at Tampa, in said county of Hillsboro, with the clerk of the court. The judge attaches to this order a statement that the order requiring the return to be made at Tampa is made because the condition of the business in his circuit is such that he will be unable to give the case proper attention. On June 25, 1901, respondent. Simonton, filed a motion and demurrer. The motion was to quash the rule to show cause upon the following grounds: (1) The leave of the attorney general to bring the suit had not been complied with. (2) It does not appear from the record that relator has filed any bond or security to protect the state from costs. (3) The writ and information show on their face that the alleged term of office claimed by relator will expire before the relief sought can be granted. (4) That the rule to show cause and all orders of the judge of the Fifth eircuit are unconstitutional, null and void, in this: that the constitution has not granted to the circuit courts any extraterritorial jurisdiction in common-law cases. (5) The statute under which the judge of the Fifth cir cuit claimed the right to permit the information to be filed and to make the orders made by him is unconstitutional, in that it attempts to confer upon the circuit courts extraterritorial jurisdiction. The demurrer was to the entire information, and the matters of law noted thereon for argument are as follows: (1) The information shows no cause of action against respondent. (2) The allegations of the information do not authorize the granting of the relief sought, or any re lief whatever, against respondent. (3) Relator has a good and sufficient remedy at law

against respondent. (4) Relator has a good and sufficient remedy at law in an action to recover the alleged damages he may sustain by reason of his alleged claim to the office in question. (5) No facts are alleged in the information or rule to show cause authorizing or requiring respondent to plead thereto. (6) There is a variance between the information and the term of office of relator as shown by his commission attached as an exhibit. (7) It does not appear from the information that relator has any such interest in the proceedings as to authorize him to become relator in said cause.

On July 26, 1901, the judge of the Seventh circuit, in his circuit, acting "pro hac vice," made an order denying the motion to quash, overruling the demurrer to the information, and granting leave to respondent to plead within 20 days.

On August 14, 1901, respondent filed four pleas, in substance as follows: (1) That relator was never authorized by the attorney general to bring information in the nature of a quo warranto in the circuit court of Hillsboro county in the name of such attor ney general against respondent, wherefore respondent prays judgment of the information, and that same be quashed. (2) That on or about April 27, 1901, the office of county solicitor of the criminal court of record for Hillsboro county was vacant, and there was no incumbent in the office; that on or about April 16, 1901, Gov. Jennings appointed respondent county solicitor of said criminal court of record for four years from April 27, 1901, which appointment was confirmed by the senate on or about the same day; that on April 16, 1901, respondent took the oath of office required by the constitution and laws, filed same with the secretary of state, and accepted the office; that on or about April 27, 1901, Gov. Jennings commissioned respondent to be county solicitor of the said criminal court of record for four years from April 27, 1901, and by that warrant respondent had held and executed the duties and functions of the said office all the time in the information mentioned, and still holds said office, and executes its duties, as he has a right to do. Copies of the oath of office and commission mentioned in this plea were attached to the pleas as Exhibits A and B, and the exhibits were specially referred to in this plea. (3) That on or about April 27, 1897, Gov. Bloxham appointed Peter O. Knight, according to the constitution and laws of Florida, to be county solicitor of the criminal court of record for Hillsboro county for four years from April 27, 1897; that while the senate was in session in the year 1899 said Peter O. Knight resigned said office, and, there being no method prescribed by the constitution or laws of the state for filling an unexpired term in said office while the senate was in session, Gov. Bloxham, under and by virtue of section 7, art. 4, of the constitution, appointed relator "to be county

solicitor of the criminal court of record in and for Hillsboro county, Fla., from the 8th day of June, A. D. 1899, for the unexpired term of Peter O. Knight, resigned, which term will expire on April 27, A. D. 1901"; that Gov. Jennings appointed respondent as county solicitor of the criminal court of record in and for Hillsboro county, Fla., and he was confirmed by the senate; that respondent took the oath of office, filed same with the secretary of state, and accepted said office, as will more fully appear from a copy of the oath of office and acceptance attached to the pleas, marked "Exhibit A"; that on or about April 27, 1901, a commission was duly issued by the governor commissioning respondent to be county solicitor of said court for four years from April 27, 1901, as will more fully appear from a copy of the commission attached to the pleas, and marked "Exhibit B"; that respondent entered upon the duties of the said office about April 29, 1901, and by that warrant still performs and executes the duties thereof. A copy of the commission mentioned in this plea as having been issued to Peter O. Knight was attached to the pleas as "Exhibit C," and this exhibit was also specially referred to in this plea. (4) That on or about April 16, A. D. 1901, respondent was appointed by the governor and confirmed by the senate to the office of county solicitor of the criminal court of record of said Hillsboro county, and that on or about April 16, 1901, he took the oath of office required by the constitution and laws of Florida, as will more fully appear by reference to a copy of the said oath and acceptance attached to the pleas, marked "Exhibit A"; that on or about April 27, 1901, said office of county solicitor was vacant, and there was no incumbent therein, and that the governor, on or about April 27, 1901, duly issued to respondent a commission commissioning him to be county solicitor of the said criminal court for four years from the 27th day of April, A. D. 1901, as will more fully appear by reference to a copy of said commission attached to the pleas, marked "Exhibit B," and by that warrant respondent still holds and executes the duties and functions of said office.

Exhibit A attached to the pleas purports to be an oath of office of county solicitor of the criminal court of record of Hillsboro county, in the form prescribed by the constitution, by Frank M. Simonton, dated April 16, 1901, and a communication from said Simonton to the secretary of state transmitting said oath and accepting the office mentioned therein. Exhibit B purports to be a copy of a commission issued to Frank M. Simonton, signed by Gov. Jennings, and sealed and countersigned by Secretary of State Crawford, dated April 27, 1901, reciting that said Simonton had been duly appointed by the governor and confirmed by the senate, according to the constitution and laws of the state, to be county solicitor of the criminal

court of record in and for Hillsboro county for four years from April 27, A. D. 1901, and declaring that the governor does thereby commission the said Frank M. Simonton to be such county solicitor of the criminal court, according to the constitution and laws of the state of Florida, "for the term aforesaid." Exhibit C purports to be a copy of a commission issued to Peter O. Knight, signed by Gov. Bloxham, and sealed and countersigned by Secretary of State Crawford, dated April 27, 1897, reciting that said Knight hath been duly appointed by the governor and confirmed by the senate, according to the constitution and laws of the state, to be county solicitor of the criminal court of record in and for Hillsboro county for four years from the 27th day of April, A. D. 1897, and declaring that the governor does thereby commission the said Peter O. Knight to be such county solicitor of the criminal court of record, according to the constitution and laws of said state, "for the term aforesaid."

On August 14, 1901, a demurrer was interposed to these pleas, purporting to be signed by the attorney general, and also by attorneys for Turman, the relator. The matters of law noted for argument are substantially as follows: (1) The pleas do not controvert any material fact alleged in the information showing that Solon B. Turman is entitled to hold, exercise, and discharge the functions of the office of county solicitor. (2) The pleas do not controvert any material fact alleged in the information showing that the office of county solicitor is unlawfully held and usurped by respondent. (3) The pleas do not set forth facts sufficient in law to warrant respondent in holding, discharging, or exercising the functions of the office of county solicitor. (4) The pleas do not set forth any facts showing that the office of county solicitor was vacant at the time respondent claims to have been commissioned to hold said office. (5) The pleas seek to Justify the respondent in holding, exercising, and discharging the functions of the office of county solicitor on the conclusion of law therein set forth, which is unwarranted by any facts therein contained.

On August 15, 1901, a paper purporting to be signed by the attorney general, and also by the attorneys for relator, Turman, was served upon respondent, notifying him that the demurrer to pleas had been set down for hearing before the judge of the Second judicial circuit on August 21, 1901, and that at said time the demurrer would be argued, and that a judgment of ouster thereon would be asked.

On August 21, 1901, respondent was granted leave to file two additional pleas, and by consent of parties the judge of the Second circuit, in his circuit, made an order that the demurrer previously filed to pleas apply also to the two additional pleas. These additional pleas, which are numbered 5 and 6, are substantially as follows: (5) That on or

about April 10, 1893, the criminal court of record for Hillsboro county was established by legislative act (chapter 4223 of the laws of 1893 of Florida), in accordance with the constitution of the state, and, among other things, said legislation prescribed that: "There shall be a prosecuting attorney for said court to be designated the county solic itor; such prosecuting attorney shall be appointed by the governor and confirmed by the senate. The term of office shall be four years." That thereupon, while the senate continued in session, the governor appointed Peter O. Knight to be the prosecuting attorney for said court under the designation of "county solicitor of the criminal court of record in and for Hillsboro county" for the term of four years from the 27th day of April, A. D. 1893; and thereupon the senate, being in session, confirmed said appointment for said term; and thereupon, on or about April 27, 1893, said Knight accepted said office, took the oath of office in accordance with the constitution and laws; and there upon, on the 27th day of April, 1893, the governor issued the commission for said office to said Knight for the term of four years from said date. That thereupon, on said day, Knight, being duly qualified and commissioned, entered upon and executed the duties and functions of said office. That upon the expiration of said term of four years, on or about April 27, 1897, the governor appointed said Knight to be prosecuting attorney for said court, under the designation aforesaid, for the term of four years from April 27, 1897. That thereupon the senate, being in session, confirmed the said appointment of Knight for the term aforesaid; and thereupon on or about said day said Knight accepted said office, took the oath of office in accordance with the constitution and laws; and thereupon on April 27, 1897, the governor of the state issued the commission for said office to said Knight for the term of four years from said date; and thereupon, on said last-named day, said Knight, being duly qualified and commissioned, entered upon and executed the duties and functions of said office. That upon the expiration of said term of four years the governor, on or about April 27, 1901, appointed the respondent to be prosecuting attorney for said court, under the designation aforesaid, for the term of four years from April 27, 1901; and thereupon the senate, being in session, confirmed said appointment of respondent for the term aforesaid; and thereupon, on or about the 27th day of April, 1901, respondent accepted said office and took the oath of office in accordance with the constitution and laws of said state; and thereupon, on the 27th of April, 1901, the governor issued the commission for said office to respondent for the term of four years from said date, April 27, 1901; and thereupon, on said last-named day respondent, being duly qualified and commissioned, entered upon and executed the duties

and functions of said office, and ever since said day respondent has held the office and continues to execute the duties and functions thereof; and this respondent was on the day of his appointment, and has continued ever since to be, and is now, duly qualified, under the constitution and laws of the state, to receive and hold said office. (6) The sixth plea was substantially identical with the fifth, except that it contained additional allegations to the effect that upon the expiration of the two terms of office for which Peter O. Knight was alleged to have been commissioned, viz., the term expiring four years from April 27, 1893, and the term expiring four years from April 27, 1897, and by reason of such expiration of terms, the said office became vacant, and there was no incumbent to fill the same.

On August 24, 1901, the cause was brought on for hearing before the judge of the Second circuit, in his circuit, and upon such hearing the judge rendered judgment sustaining the demurrer to the pleas, adjudging that relator, Solon B. Turman, upon proof presented, was the lawfully appointed and duly qualified solicitor of the criminal court of record of Hillsboro county, and entitled to use, hold, and exercise the said office, perform the duties thereof, and to receive its emoluments for four years commencing with the 8th day of June, A. D. 1899; that respondent is guilty of usurping, holding, and executing the same, performing the duties and receiving the emoluments thereof unlawfully; and that respondent be excluded from said office, and from exercising any of the duties pertaining thereto, and that he do forthwith yield and deliver up to relator said office. From this judgment this writ of error was taken, and the assignment of errors complains that the court erred in the following particulars, among others: (1) Denying respondent's motion to quash the rule. (2) Overruling respondent's demurrer to the information. (3) Sustaining the demurrer to respondent's pleas. (4) Entering the final judgment, and each several provision thereof. (5) It is also contended by the assignment of errors that the judge of the Second circuit did not have jurisdiction to render the final judgment.

Barron Phillips, Geo. G. Clough, and A. W. Cockrell & Son, for plaintiff in error. Hugh C. Macfarlane and John P. Wall, for defendant in error.

CARTER, J. (after stating the facts). I. The third ground of the motion to quash has not been argued, and will, therefore, be treated as abandoned. The fourth and fifth grounds will be considered in connection with the assignment of error questioning the jurisdiction of the judge of the Second circuit to render the final judgment. The first and second grounds proceed upon the theory that the information was brought by the re

lator in pursuance of leave granted him by the attorney general, and that it was necessary that relator should file a bond or security to protect the state for liability for costs.. It is true, a letter from the attorney general was attached to the information authorizing Solon B. Turman to bring an information in the nature of quo warranto in the name of the attorney general to test the right and title of respondent to the office of solicitor of the criminal court of record of Hillsboro county, but the motion to file the information and the information itself purport to be brought by the attorney general in person; each purports to be signed by him, and neither is signed by Mr. Turman or by his attorneys. Upon the face of the proceedings they were not instituted in pursuance of the authority granted in the letter, but were instituted directly by the attorney general for the double purpose of ousting respondent from the office and having it judicially declared that Solon B. Turman, a person claiming title to the office, was rightfully entitled thereto. This he had a right to do under sections 1781 et seq., Rev. St. Under such circumstances the statute does not require a bond or security for costs from Mr. Turman, and therefore the first and second grounds of the motion were properly overruled.

II. The demurrer to the information was properly overruled. It was general, addressed to the entire information, and, even though the information be defective in its allegations as to the right or title of relator, Solon B. Turman, to the office, it does allege that respondent uses, enjoys, exercises, and performs the functions of the public office of solicitor of the criminal court of record of Hillsboro county without warrant or authority of law, and charges usurpation of said office by him; and is, therefore, sufficient to require him to show by what right or authority he exercises or performs the functions thereof as against the state. State v. Philips, 30 Fla. 579, 11 South. 922. The proceeding, as we have seen, was in behalf of the state, through its attorney general, and the rule we announce above applies to such cases. Lake v. State, 18 Fla. 501. If the respondent in an information of this nature brought by the attorney general in behalf of the state can ever take advantage of a defect in the allegations as to the title of another person claiming the office whose claim is recognized and set forth in the information, he must do so in some manner other than by demurrer to the entire information.

III. The fourth and fifth grounds of the motion to quash, and the assignment of error questioning the jurisdiction of the judge of the Second circuit to render the final judg ment, will be considered together. As will be seen by reference to the statement, the motion for leave to file the information, together with the information proposed to be filed with its exhibits, were first filed in the

circuit court of Hillsboro county, in the Sixth circuit. The judge of that circuit being disqualified, as appears from his certificate of record, application was made to the judge of the Fifth circuit for leave to file the information and for the rule to show cause, which was granted. Subsequently the motion to quash the rule and the demurrer to the information were heard and decided by the judge of the Seventh circuit, and thereafter the demurrer to respondent's pleas was heard, and final judgment upon the demurrer was rendered against respondent by the judge of the Second circuit. The case was never transferred from Hillsboro county, but remained pending there all the while, and each judge before whom the case was brought for hearing undertook to act as to the several matters submitted pro hac vice only; or, in other words, merely in the place and stead of the judge of the Sixth circuit, who was disqualified. The several judges to whom the case was submitted for the sev eral orders mentioned derived their power to act from section 1078, Rev. St., which provides that: "Whenever the judge of any court, other than the supreme and criminal courts of record shall be unable from absence, sickness or other cause, or shall be disqualified from interest or any other cause to discharge any duty whatever appertaining to his office which may be required to be performed in vacation or between terms, it shall be the duty of any other judge of a court of the same jurisdiction as the court in which the cause is pending, on the application of any party to perform such duties, and hear and determine all such matters as may be submitted to him and such judge may discharge such duties either in his own or any other jurisdiction and shall be substituted in all respects in the place and stead in the matter aforesaid of the judge unable or disqualified to act." It is argued here that a proper construction of this statute requires us to hold that, when application is once made to a judge of a particular circuit to perform a duty or to hear and determine a matter that might have been required to be performed or heard and determined in vacation or between terms by a judge of another circuit but for his disqualification to act, all matters subsequently arising for decision in that particular matter or cause must be submitted to the same judge so long as he is qualified and able to perform the duty or to hear and determine the matter to be submitted, and that such subsequent matters cannot be submitted to the judge of a different circuit. A careful reading of the statute convinces us that this construction is untenable. The language is plain that it shall be the duty of any other judge of a court of the same jurisdiction, upon application of a party to a pending cause, to perform any duty or hear and determine any matter therein which it would be the duty of the judge of the circuit in which the cause is pending to

perform or to hear and determine in vacation but for his disqualification. In performing the duty required by the statute, the judge to whom application is made acts in the place and stead of the disqualified judge, not for the purpose of hearing and deciding every matter arising in the cause, but only in respect to the particular matter submitted to him. It is also contended that the statute is void because it confers upon circuit courts and circuit judges extraterritorial jurisdietion, in violation of section 12, art. 5, Const. 1885, and because its legal effect is to transfer a cause at law, upon the application of one party only, from the circuit in which such cause is pending to the circuit of the judge who is called upon to hear and determine a matter arising therein, in violation of section 19, art. 5, of the same constitution, as interpreted by this court in State v. Walker, 25 Fla. 561, 6 South. 169. In State v. Hocker, 35 Fla. 19, 16 South. 614, the constitutionality of the statute in question was upheld as against the contentions now made in this case, and we are satisfied that deci sion is correct. It is claimed, however, that in that case the question was simply whether the statute was constitutional in so far as it applied to the hearing and determination of a demurrer to a declaration, while in the present case the judge of the Second circuit proceeded to render a final judgment against respondent. It is true the two cases differ in the respect pointed out, but we think they are both controlled by the same principles. In either case there is no transfer of the cause, nor exercise of extraterritorial jurisdiction. The judgment in this case was a judgment final upon demurrer to the respondent's pleas, no leave to plead over being requested or given. It was lawful to hear and decide the demurrer to pleas in this case, and to render the proper judgment upon such demurrer, in vacation or between terms. The power to hear and determine a demurrer, which was affirmed in the case mentioned (State v. Hocker, 35 Fla. 19, 16 South. 614), necessarily involves and includes the power to render the proper judgment upon that demurrer in all cases where such judgment can lawfully be entered in vacation or between terms. We think the statute gave power to the several judges pro bac vice to hear and determine the matters submitted to them in the present case, and pow er to the judge of the Second circuit pro hac vice to render final judgment against respondent, and that the statute is constitutional.

IV. Exhibit B attached to the information. and referred to therein, is the commission under which it is alleged that relator, Solon B. Turman, is entitled to hold the office of county solicitor for four years from its date, June 8, 1899. This commission purports to have been issued in pursuance of an appointment of the governor, confirmed by the senate, for the unexpired term of Peter 0.