Advisory Opinion to Governor
| Citation | 147 Fla. 157,2 So.2d 378 |
| Parties | ADVISORY OPINION TO GOVERNOR. |
| Decision Date | 22 May 1941 |
| Court | United States State Supreme Court of Florida |
Ralph Davis Executive Secretary Honorable Armstead Brown, Chief Justice Honorable J. B. Whitfield, Honorable Glenn Terrell, Honorable R. H. Buford, Honorable R. H. Chapman, Honorable Elwyn Thomas, Honorable Alto Adams, Justices of the Supreme Court.
Gentlemen:
Under Section 13 of Article IV of the Constitution of Florida, I respectifully request your opinion on the questions set forth below be one circuit judge for said circuit for each fifty thousand of its population.
The increased population of the Eleventh Judicial Circuit, as officially reflected by the 1940 Federal census, indicated that this circuit was entitled to two additional circuit judges. Accordingly, my predecessor, the Honorable Fred P. Cone, on November 30, 1940, appointed Honorable Richard H. Hunt, as Judge of the Eleventh Judicial Circuit and on December 9 1940, he appointed the Honorable Stanley Milledge as Judge of such Circuit, the term of each of said commissions being from the date thereof, 'until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed by the Senate'.
Under the facts and circumstances stated, is it the constitutional duty of the Governor during the 1941 session of the Florida Legislature----
(a) To make and submit to the Senate appointments to the two aforesaid offices of additional judges in and for the Eleventh Judicial Circuit of Florida?
(b) If so, for what term or terms should such appointments be made?
(c) Is the present Governor bound by the appointments of the former Governor so that he is required to transmit and nominate to the Senate for its approval or rejection to the two aforesaid offices the names of Honorable Richard H. Hunt and Honorable Stanley Milledge, or may the present Governor appoint other properly qualified persons to such offices and transmit to the Senate for its approval or rejection the names of such other persons to serve in said offices?
In the Supreme Court of Florida
Tallahassee, Florida, May 21, 1941
Honorable Spessard L. Holland
Governor of Florida
Tallahassee, Florida
Dear Sir:
An advisory opinion is expressed herein in response to the following request from you:
'Justices of the Supreme Court.
'Gentlemen:
'Under Section 13 of Article IV of the Constitution of Florida, I respectfully request your opinion on the questions set forth below:
'Upon the adoption of Section 45 of Article V of the Constitution at the general election of 1934, and the enactment by the Legislature of 1935 of Chapter 17085 of the Laws of Florida, four circuit judges were appointed in and for the Eleventh Judicial Circuit of Florida. The allocation of this number of circuit judges was based upon the then population of the Eleventh Judicial Circuit as contemplated by Section 45C of Article V of the Constitution. Chapter 17774, Acts of the Legislature of 1937, expressly provides that there should be one circuit judge for said circuit for each fifty thousand of its population.
'The increased population of the Eleventh Judicial Circuit, as officially reflected by the 1940 Federal census, indicated that this circuit was entitled to two additional circuit judges. Accordingly, my predecessor, the Honorable Fred P. Cone, on November 30, 1940, appointed Honorable Richard H. Hunt, as Judge of the Eleventh Judicial Circuit and on December 9, 1940, he appointed the Honorable Stanley Milledge as Judge of such Circuit, the term of each of said commissions being from the date thereof, 'until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed by the Senate'.
'Under the facts and circumstances stated, is it the constitutional duty of the Governor during the 1941 session of the Florida legislature----
'(a) To make and submit to the Senate appointments to the two aforesaid offices of additional judges in and for the Eleventh Judicial Circuit of Florida?
'(b) If so, for what term or terms should such appointments be made? '(c) Is the present Governor bound by the appointments of the former Governor so that he is required to transmit and nominate to the Senate for its approval or rejection to the two aforesaid offices the names of Honorable Richard H. Hunt and Honorable Stanley Milledge, or may the present Governor appoint other properly qualified persons to such offices and transmit to the Senate for its approval or rejection the names of such other persons to serve in said offices?
The appointments of two additional Circuit Judges for the Eleventh Judicial Circuit of Florida, predicated upon the increase of population in the Circuit as shown by the 1940 Federal census, were properly made in 1940 by former Governor Fred P. Cone under Sections 43 and 45, Article V of the Constitution, and Chapters 17085, Acts of 1935, and 17774, Acts of 1937, and the commissions severally issued to such appointees were properly made to run 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. See In re County Com'rs of Duval County, 32 Fla. 138, 13 So. 705; Simonton v. State, 44 Fla. 289, 31 So. 821; State v. Bird and Viney, 120 Fla. 780, 163 So. 248; In re Executive Communication, 14 Fla. 277; Advisory Opinion to the Governor, 45 Fla. 154, 34 So. 571; Advisory Opinion to the Governor, 93 Fla. 1024, 113 So. 115.
Sections 461(396) and 464(399), Compiled General Laws, operating under Section 7, Article IV of the Constitution, provide that 'when any office created or continued by the Constitution or laws shall not have been filled by election or appointment * * * it shall be the duty of the Governor to fill such office by appointment, * * * and in cases requiring the confirmation or the...
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