Gray v. Bryant

• Decision Date: 19 December 1960
• Citation: 125 So.2d 846
• Parties: R. A. GRAY, as Secretary of State of the State of Florida, and Ray E. Green, as Comptroller of the State of Florida, Appellants, v. Farris BRYANT, as Governor-elect of the State of Florida, and as a citizen, elector and taxpayer of the State of Florida, Appellee.
• Court: Florida Supreme Court

Page 846

125 So.2d 846

R. A. GRAY, as Secretary of State of the State of Florida, and Ray E. Green, as Comptroller of the State of Florida, Appellants, v. Farris BRYANT, as Governor-elect of the State of Florida, and as a citizen, elector and taxpayer of the State of Florida, Appellee.

Supreme Court of Florida.

Dec. 19, 1960.

Rehearing Denied Dec. 23, 1960.

Richard W. Ervin, Atty. Gen., Fred M. Burns and Wilson W. Wright, Asst. Attys. Gen., for appellants.

Caldwell, Parker, Foster, Madigan & Oven, Tallahassee, and Marion E. Sibley, Miami Beach, for appellee.

Charles R. Scott, Jacksonville, as amicus curiae.

PER CURIAM.

Honorable Farris Bryant, as Governorelect and as a citizen, elector and taxpayer of this State, filed a complaint for declaratory decree against R. A. Gray, as Secretary of State, and Ray E. Green, as Comptroller, in which he sought a declaratory judgment on the following questions:

1. Which, if any, of the vacancies in the office of circuit judge created by virtue of the certification of the 1960 federal census and the operation of Section 6(2), Article V, Florida Constitution, F.S.A., may be filled by executive appointment in advance of legislative action?

2. If any of such vacancies may be filled by appointment of the present Governor, may the present Governor issue commissions for those appointed to run beyond January 2, 1961?

3. If the present Governor may not appoint or issue commission for terms to run beyond January 2, 1961, may the plaintiff, Governor-elect, after he succeeds to the office of Governor on January 3, 1961, appoint to fill such vacancies 'until the general election of 1962 and until the successors of such appointees shall have been elected and qualified?'

The complaint prayed that if the court determined that the present Governor had the power to appoint to any such vacancies for terms expiring on January 2, 1961 and that the Governor-elect would on January 3, 1961 have the power to fill such offices by appointment, the court enjoin the Secretary of State from issuing to any such appointees of the present Governor commissions extending beyond January 2, 1961 and also enjoin the Comptroller from issuing any warrants to any appointees to such offices by the present Governor for any period of time subsequent to January 2, 1961.

The defendants by answer alleged that the trial court was without jurisdiction of the parties and subject matter of the suit only for the reason that the suit in fact sought to bind the incumbent Governor, who is not and may not be made a party to the suit. The right or interest of the plaintiff to maintain a suit for declaratory decree in this instance was not challenged.

In his decree, which is under attack on this appeal, the Chancellor decreed that:

1. The official announcement of the results of the 1960 federal census caused the creation of additional offices of circuit judges only in those instances in which the legislature has provided for creation of such additional offices according to the population formula expressed in Section 6(2), Article V, Fla.Const., F.S.A.

2. The incumbent Governor has the authority to fill such vacancies in the office of circuit judge but the commissions issued to those appointed shall expire at midnight of January 2, 1961.

3. The person who shall hold the office of Governor on and after January 3, 1961 shall have the authority to appoint persons to fill such vacancies until the first Tuesday after the first Monday in January 1963.

The Chancellor then enjoined the Secretary of State from issuing any commissions to persons appointed to fill such vacancies which would extend for any period of time past midnight January 2, 1961. He reserved jurisdiction as regards a restraining order against the Comptroller.

Neither in the assignments of error filed herein nor in the oral argument before this Court have the defendants raised the question of the plaintiff's right or interest to maintain this suit; therefore, this question is not presented to us for decision. Consequently, this opinion cannot be taken as authority or precedent for the proposition that a governor-elect has any standing to contest or enjoin the actions of an incumbent governor as regards executive appointments to be made during the term of the incumbent.

It is evident from the pleadings in this cause that the issues involved have political overtones and that they have arisen because of the ending of the term of one chief executive and the commencement of another's at a time when a large number of newly created judicial offices must be filled by appointment of a chief executive.

It is our opinion that it is unimportant that there will soon occur a change in the person who holds the office of Governor and that the issues should be determined without regard to this fact. Our decision should and would be the same if the incumbent Governor's term were to extend past January 2, 1961 or if the Governor-elect were now the incumbent.

The first issue to be decided relates to the Chancellor's decision that the official announcement of the 1960 federal census created vacancies in the office of circuit judge only in those circuits where the legislature had acted to provide for the creation of additional offices upon the showing, by census authorized by law, of requisite population authorizing creation of such additional offices.

Section 6(2), Article V, Florida Constitution prescribes the formula by which the number of circuit judges in each of the sixteen judicial circuits is to be determined. It reads:

'The legislature shall provide for one circuit judge in each circuit for each fifty thousand inhabitants or major fraction thereof according to the last census authorized by law. In circuits having more than one judge the legislature may designate the place of residence of any such additional judge or judges.'

The Chancellor's decree indicates that he construed this section of the constitution not to be self-executing, but on the contrary construed it as requiring that the legislature act to create the offices of circuit judge which a census would authorize.

However, as to the First, Second, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Fourteenth and Fifteenth Judicial Circuits it is immaterial to this case, and to the determination of whether or not the 1960 federal census figures created any vacancies in the office of circuit judge in any of those circuits, whether Section 6(2), Article V be construed to be self-executing or not. This is true because the legislature, by the various sections of ch. 26, F.S.A. and by ch. 59-1005, Laws of Florida, Acts of 1959, has already acted to prescribe that there shall be one circuit judge for each 50,000 inhabitants, or major fraction thereof, in each of those circuits, according to the last census authorized by law.

We have noted that Section 26.02(1), F.S.A., which pertains to the First Judicial Circuit, contains two sentences which may be contradictory. The first sentence names the four counties in the circuit and prescribes that there shall be one circuit judge for each 50,000 inhabitants or major fraction thereof. The second sentence reads:

'No two of said judges may be legal residents of the same county.'

Read literally this section in effect limits the number of circuit judges in the First Judicial Circuit to four. Section 6(2), Article V authorizes the legislature to designate the place of residence of any circuit judge in any circuit having more than one such judge, but it does not authorize the legislature to limit the number of judges below the number resulting from the population formula expressed therein as applied to the last census authorized by law.

We judicially know that the First Judicial Circuit, prior to the certification of the 1960 federal census, was authorized to have, and had, four circuit judges. Therefore the provision of the statute limiting each county to one such judge was not a more restrictive limitation on the number of such judges than the constitutional provision. It seems clear that the statutory provision was intended to be an exercise of the power granted the legislature to designate the place of residence of the four judges of the circuit and was not intended to limit the number of judges therein. This is clear because the first sentence of said Section 26.02(1) fixes the number of judges in accordance with the population formula prescribed in the constitutional provision.

If construed literally, the second sentence of Section 26.02(1) is in conflict with the first sentence thereof and with Section 6(2), Article V and is therefore unconstitutional and void. If construed to mean that there will be one circuit judge resident in each county of the circuit before more than one is resident in any county, the sentence can be held to be valid and gives effect to what we find to be the legislative intent. We so construe its meaning.

In sum the foregoing results in our concluding that the decree of the Chancellor is correct in holding that in those circuits above mentioned as to which the legislature has prescribed that there shall be one such judge for each 50,000 persons, or major fraction thereof, the certification of the 1960 federal census figures did automatically create vacancies in the office of circuit judge in each circuit in which the number of circuit judges now holding office is less than one such judge for each 50,000 persons or major fraction thereof according to the figures shown by said census.

We disagree, however, with the Chancellor in his decision that Section 6(2), Article V, is not self-executing and that the legislature would be required to act before any vacancies in the office of circuit judge would exist in the Third, Fifth, Eighth, Thirteenth, and Sixteenth Circuits even though the 1960 federal census reveals that those circuits have populations which would authorize additional judges.

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