Advisory Opinion to the Governor

• Decision Date: 30 September 1949
• Parties: ADVISORY OPINION TO THE GOVERNOR.
• Court: Florida Supreme Court

Page 170

42 So.2d 170

ADVISORY OPINION TO THE GOVERNOR.

Supreme Court of Florida, en Banc.

Sept. 30, 1949.

PER CURIAM.

September 23, 1949

Honorable Fuller Warren

Governor of Florida

Tallahassee, Florida

Dear Governor:

We are in receipt of your request for the written opinion of this Court as authorized by Section 13, Article IV of the Constitution, F.S.A., as follows:

'Honorable Alto Adams, Chief Justice and the Justices of the Supreme Court of Florida

'Tallahassee, Florida

'Gentlemen:

'The State Constitution authorizes me, as Governor, to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the State Constitution upon any question affecting my executive duties and powers (Section 13, Article IV, of the Constitution.)

'The said Constitution also provides that there may be established 'upon application of a majority of the registered voters' a Criminal Court of Record 'in such other counties as the Legislature may deem expedient * * * and there shall be one Judge for each of the said courts' (Section 24, Article V, of the Constitution) and a Prosecuting Attorney (Section 27, Article V, of the Constitution), and a Clerk (Section 30, Article V, of the Constitution) and Judge and Prosecuting Attorney (Section 47, Article V, of the Constitution) shall be elected by the qualified electors of their respective counties as other county officials are elected. The second paragraph of Section 47, Article V, of the Constitution providing that:

"The first election of * * * Judges of Criminal Courts of Record and County Solicitors * * * shall be held at the General Election in 1948 to take office the first Tuesday after the first Monday in January 1949, for a term of four years.'

'Under the State Constitution I am required to commission all county officers before they enter upon the duties of their offices (Section 7, Article VII, of the Constitution) 'the term of office for all appointees to fill vacancies in any of the elective offices under this Constitution, shall extend only to the election and qualification of a successor at the ensuing general election' (Section 6, Article XVIII, of the Constitution); However, Section 7, Article IV, of the State 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 be granting a commission for the unexpired term.'

'At the 1949 regular session of the Legislature of this State an act was enacted creating and establishing a Criminal Court of Record in and for Broward County, Florida, which act has already become a law and became effective on June 1, 1949. Acts 1949, c. 25066, F.S.A. § 32.01 and note, § 32.03.

Notwithstanding the following opinions by the Supreme Court of this State (opinion of Justices, 68 Fla. 560, 66 So. 1003; Knight v. Atkin, 95 Fla. 526, 116 So. 239; Opinion of Justices, 76 Fla. 649, 80 So. 519; Opinion of Justices, 78 Fla. 5, 82 So. 612; State v. Giblin, 98 Fla. 802, 124 So. 375; Opinion of Justices, 94 Fla. 986, 114 So. 889, and Opinion of Justices, 152 Fla. 686, 12 So. (2nd) 876) I am uncertain as to the following questions and request the opinion of the Justices, as provided by Section 13, Article IV, on the State Constitution, thereon, to-wit:

'1. Should the Judge, Clerk and County Solicitor of the said Court be appointed by the Governor for (a) terms of four years from the effective date of the act, (b) for terms of four years from the first Tuesday after the first Monday in January, 1949, or (c) until the first Tuesday after the first Monday in January, 1951?

'2. If such commission should be issued until the first Tuesday after the first Monday in January, 1951, and until their successors are duly elected and qualified, should the persons elected at the general election in 1950 (which will be during the term of the undersigned) be commissioned until the first Tuesday after the first Monday in January, 1953, or for a full four year term ending on the first Tuesday after the first Monday in January, 1955?

'Thanking you for giving me an advisory opinion on this question, and with much respect, I am,

'Cordially yours,

Fuller Warren

Governor.'

The criminal Court of Record for Broward County was created by Chapter 25066, Acts of 1949, and was made effective June 1, same year. The Act contemplates the appointment of a judge and county solicitor for the Court but makes no provision for a clerk. The act further provides that Chapter 32, F.S.A. relating to Criminal, Courts of Record shall be applicable to the Criminal Court of Record for Broward County except as otherwise provided under the provisions of this act.

Prior to the adoption of House Joint Resolution 322, at the General Election in November 1944, now Section 47, Article V of the Constitution, judges of criminal courts of record and county solicitors were appointed by the Governor and confirmed by the Senate. Under Section 47, Article V of the Constitution, they are elected by the qualified electors in the same manner that other state and county officers are elected. The first election under ...