Advisory Opinion to Governor
| Citation | 12 So.2d 876,152 Fla. 686 |
| Parties | ADVISORY OPINION TO GOVERNOR. |
| Decision Date | 03 April 1943 |
| Court | United States State Supreme Court of Florida |
Supreme Court of Florida
Division A Tallahassee Division B
Justices Justices
Glenn Terrell March 31,1943 Armstead Brown
Roy H. Chapman Elwyn Thomas
Alto Adams Harold L.
Tallahassee Florida
Dear Sir:
We have your letter or March 29, 1943, reading as follows:
'To the Honorable, The Chief Justice, and Justices of the Supreme Court of The State of Florida
Gentlemen:
'Committee Substitute for Senate Joint Resolution 334, Acts of 1941, was adopted by the people at the general election of 1942 as Section 46 of Article V of the Constitution. It reads as follows:
'The elevation to the Supreme Court of this State, on the first Tuesday after the first Monday in January, 1943, of the Honorable H. L. Sebring, a Circuit Judge of the Eighth Judicial Circuit holding office for a term current at the time of the adoption of the above-quoted provision, created a vacancy in said Circuit Judgeship which I filled by the appointment of the Honorable John A. H. Murphree.
'Under Section 13 of Article IV of the Constitution of this State, I have the honor to request your written opinion as to whether or not, under the abovequoted provision of the Constitution, the commission issued the said appointee should read until the end of the next ensuing session of the Senate unless an appointment should be sooner made and confirmed by the Senate, the language heretofore used in ad interim appointments requiring confirmation of the Senate, thus making it incumbent upon me to submit an appointment to the Senate at its next ensuing session, or whether the appointment should be made and a commission issued to the appointee for the remainder of the term as extended by the constitutional provision, supra, and without submission to the Senate for confirmation, or until a successor is elected at the general election in 1948 and qualifies.
Very respectfully,
Spessard L. Holland'.
In response to the above request for an advisory opinion, we might first observe that under Section 1 of Article XVII of the Constitution of Florida, the amendment which you quote became a part of the Constitution upon its adoption by the people at the general election in 1942, as Section 46 of Article V, and must be construed in pari materia with other sections of the Constitution which have a bearing upon the same subject matter. However, an amendment to the Constitution, duly adopted, is the last expression of the will and intent of the law making power and prior provisions inconsistent with or repugnant to the amendment are modified or superseded to the extent of the inconsistency or repugnancy. Board of Public Instruction of Polk County v. Board of County Commissioners, 58 Fla. 391, 50 So. 574.
Prior to the adoption in November, 1942, of this amendment, the offices of Circuit Judges were appointive offices. Thus Section 8 of Article V of the Constitution provided that the Circuit Judges should be appointed by the Governor and confirmed by the Senate and fixed their terms at six years; and Section 43 of Article V, being an amendment adopted in 1922, providing for the appointment of additional Circuit Judges, contained the same provision.
Section 7 of Article IV of the Constitution provides that 'When any office, from any cause, shall become vacant, and no mode is provided by this Constitution or by the laws of the State for filling such vacancy, the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term.'
Section 461, C.G.L., now Section 114.01, Florida Statutes 1941, F.S.A.§ 114.01, defines vacancies in office, and Section 464, C.G.L., now Section 114.04, Florida Statutes 1941, F.S.A. § 114.04, provides that: 'In all such cases, and in all other cases in which a vacancy may occur, if the office be a State, district or county office (other than a member or officer of the Legislature), it shall be the duty of the Governor to fill such office by appointment, and the person so appointed shall be entitled to take and hold such office until the same shall be filled by an election as provided by law, and in cases requiring the confirmation or the advice and consent of the Senate, the person so appointed may hold until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed and consented to by the Senate.'
Prior to the adoption of the amendment of 1942, now under consideration, it was the custom, and the statutory requirement, that, as to appointments to offices requiring the confirmation of the Senate, the Governor's ad interim appointment entitled the appointee to hold until the end of the next ensuing session of the Senate, 'unless an appointment be sooner made and confirmed and consented to by the Senate.' But this statutory requirement did not apply and does not now apply to appointments to elective offices. Under this statute and under Section 7 of Article IV of the Constitution, persons appointed by the Governor to fill vacancies occurring in elective offices were entitled to take and hold such offices until the same should be filled by election as provided by law.
Prior to the adoption of this constitutional amendment in 1942, we advised your Excellency, in response to an appropriate request, that where an ad interim appointment of a Circuit Judge is made by the Governor to hold until the end of the next ensuing session of the Senate, the Governor should also sumit to the Senate at such next session an appointment to such office for confirmation by the Senate to fill the same under Section 43 and 45, Article V of the Constitution for the contemplated by the Constitution, and that the ad interim appointment and the subsequent appointment for confirmation by the Senate were separate and distinct appointments;...
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