Advisory Opinion to the Governor, In re

• Decision Date: 12 January 1968
• Docket Number: No. 37026,37026
• Citation: 206 So.2d 212
• Parties: In re ADVISORY OPINION TO THE GOVERNOR.
• Court: Florida Supreme Court

Page 212

206 So.2d 212

In re ADVISORY OPINION TO THE GOVERNOR.

No. 37026.

Supreme Court of Florida.

Jan. 12, 1968.

PER CURIAM.

SUPREME COURT OF FLORIDA

Tallahassee

January 11, 1968

The Honorable Claude R. Kirk, Jr.

Governor

State of Florida

Tallahassee, Florida

Dear Governor:

We have your request for an advisory opinion under date of January 8, 1968, in 'Pursuant to the provisions of Section 13 of Article IV, Florida Constitution, the Governor is authorized to request the opinion of the Justices of the Supreme Court as to the interpretation of any portion of the Constitution upon any question affecting the Governor's executive powers and duties.

which you have asked for our advice pursuant to Section 13 of Article IV, Florida Constitution, F.S.A.:

'According to the provisions of Section 8, Article IV, Florida Constitution, the Governor is authorized to call the Legislature into special session. Under the provisions of Section 2, Article III, Florida Constitution, it is specifically provided that, 'No special session convened by the Governor shall exceed twenty days.'

'It is my intention, very shortly, to issue a Proclamation calling the Legislature into special session. However, before doing so, it is necessary that I receive clarification of my executive authority under the aforementioned provisions of the Constitution, particularly with regard to the limitations which the Executive can place upon the length of such special session.

'Therefore, I have the honor to request your written opinion on the following question:

'1. When the Legislature is convened into special session pursuant to Section 8, Article IV, Florida Constitution, am I authorized to limit the call to a specified number of days, such as five days, ten days, etc., or would such special session automatically be fixed at twenty days by virtue of Section 2, Article III, Florida Constitution, regardless of the time specified in my Proclamation?

'Since time is of the essence with respect to the calling of such special session, your early reply would be most sincerely appreciated.

Sincerely,

/s/ Claude Kirk

Governor'

We find it proper to answer your inquiry.

ARTICLE III, Section 2, Constitution of Florida, among other things, provides:

'The regular sessions of the Legislature shall be held biennially commencing on the first Tuesday after the first Monday, in April, 1887, and on the corresponding day of every second year thereafter, but the Governor may convene the same in extra session by his proclamation. Regular sessions of the Legislature may extend to sixty days, but no special session convened by the Governor Shall exceed twenty days.' (Emphasis supplied.)

ARTICLE IV, Section 8, provides:

'The Governor may, on extraordinary occasions, convene the Legislature by proclamation, and shall in his proclamation state the purpose for which it is to be convened, and the Legislature when organized shall transact no legislative business other than that for which it is especially convened, or such other legislative business as the Governor may call to its attention while in session, except by a two-thirds vote of each House.'

Thus it becomes necessary to read in conjunction the foregoing two sections of the Constitution from which joint gleaning we find that the Governor has the power to call an extraordinary session but the outer limit of the call is fixed at twenty days. The limitation that the call shall not exceed twenty days clearly implies that it may be for a shorter period. It is noteworthy that the regular session is called for a period not to exceed sixty days By the Constitution and does not require the exercise of any action by the Governor We have examined former decisions of this court but find no precedent controlling the situation. Our attention has been directed to State ex rel. Cunningham v. Davis, 1936, 123 Fla. 41, 166 So. 289, but we find the decision bears no relation to the question here under review. That case dealt with the constitutional power of a regular session of the Legislature to perform any act upon the expiration of the sixty-day period provided in the Constitution, and held that the power to legislate terminated at the expiration of the sixty-day period but that the Legislature could immediately thereafter make

however, the calling of the extra session is an exercise of executive discretion, and if in the exercise of such discretion he determines that an extra session of less than twenty days is in the public interest, he has the power to make the call and fix the shorter time. The wisdom of the Governor in fixing a lesser time is not a matter of judicial concern as we are involved here only with his power to do so.

'* * * an orderly disposition of its remains by properly winding up its affairs as soon as practicable thereafter, so long as the assembly did not actually disperse as a parliamentary body and thereby put it beyond its power to reassemble for that purpose absent the call of the Governor into extra session.'

We also examine the opinion of the Justices of the Supreme Court of Alabama reported in 275 Ala. 102, 152 So.2d 427, which dealt basically with the proposition of whether or not a regular session and an extraordinary session could be in session simultaneously. The opinion has no bearing and gives no assistance in the matter here under consideration.

The organic power of the Legislature to convene itself into extra session is authorized in Article III, Section 2, Constitution of Florida, is not involved here.

In view of the foregoing, our advice to you is that you may issue a call for an extra session of the Legislature for a period of time to be determined by you but not in excess of twenty days.

Respectfully submitted,

/s/ MILLARD F. CALDWELL

Chief Justice

/s/ ELWYN THOMAS

Justice

/s/ B. K. ROBERTS

Justice

/s/ RICHARD W. ERVIN

Justice

/s/ ALTO ADAMS

Justice

SUPREME COURT OF FLORIDA

Tallahassee

January 10th, 1968

Honorable Claude R. Kirk, Jr.

Governor of Florida

State Capitol

Tallahassee, Florida.

Dear Governor:

It is with regret that we find it necessary to disagree with our colleagues. In view of the importance of the question presented and our responsibility as individual Justices or respond to your inquiry, we feel constrained by the mandate of Article III, Section 13, Florida Constitution, to submit our views.

We proceed from the justifiable assumption that you share our concern for a continued recognition of the historic separation of powers, pursuant to which the three branches of government function.

Under our system the power of a state legislature is inherent unless limited by the provisions of the Constitution. State v. Board of Public Instruction of Dade County, 126 Fla. 142, 170 So. 602. We find nothing in the Florida Constitution which empowers the Governor to influence or otherwise control the enactment of legislation by shortening the period of time which the Constitution allots to the Legislature for an extra legislative session.

Indeed, Florida Constitution, Article II, mandates this recognition of the fundamental concept of distribution of powers. The cited Article divides our state government into three branches. It specifically prohibits a person in one branch from exercising any powers appertaining to the others, 'except in cases Expressly provided for by this Constitution.' (Emphasis added.) In other words, one branch of the sovereignty will not be empowered to exercise control over a coordinate branch by Implication. To be valid such an encroachment must be expressly stated in the Constitution. Despite this specific mandate of Article II, our esteemed colleagues appear to ground their entire conclusion on the sole assumption that the twenty day limit on the length of time that the...