Holley v. Adams, No. 39816

CourtUnited States State Supreme Court of Florida
Citation238 So.2d 401
PartiesCharles R. HOLLEY, Appellant, v. Tom ADAMS, as Secretary of the State of Florida, and the State of Florida, Appellees.
Decision Date26 June 1970
Docket NumberNo. 39816

Page 401

238 So.2d 401
Charles R. HOLLEY, Appellant,
Tom ADAMS, as Secretary of the State of Florida, and the State of Florida, Appellees.
No. 39816.
Supreme Court of Florida.
June 26, 1970.

Page 403

James G. Mahorner, of Dickens, Graham, Miller, Mahorner & Linn, Tallahassee, for appellant.

Earl Faircloth, Atty. Gen., T. T. Turnbull, and Ronald W. Sabo, Asst. Attys. Gen., for appellees.

Martin D. Kahn, of Kahn & Clein, N. Miami, for Elton J. Gissendanner, amicus curiae.

ADKINS, Justice.

This is an appeal from a final judgment rendered by the Circuit Court of the Second Judicial Circuit in Leon County, Florida, directly passing upon the validity of Ch. 70--80, Laws of Florida, amending § 99.012, Fla.Stat., F.S.A. We have jurisdiction. Art. V, § 4(2).

The appellant, hereinafter referred to as , is currently a Circuit Court Judge term of his office does not expire until January of 1973. He intends to qualify for the office of Justice of the Supreme Court of Florida, but is faced with the following provisions of Ch. 70--80, Laws of Florida:

'(2) No individual may qualify as a candidate for public office who holds another elective or appointive office, whether state, county or municipal, the term of which or any part thereof runs concurrent to the term of office for which he seeks to qualify without resigning from such office not less than ten (10) days prior to the first day of qualifying for the office he intends to seek. Said resignation shall be effective not later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, or the expiration date of the term of the office which he presently holds, or the geneal election day at which his successor is elected, whichever occurs earlier. With regard to elective offices said resignation shall create a vacancy in said office thereby permitting persons to qualify as candidates for nomination and election to that office, in the same manner as if the term of such public officer were otherwise scheduled to expire; or, in regard to elective municipal or home rule charter county offices, said resignation shall create a vacancy which may be filled for the unexpired term of the resigned officer in such manner as provided in the municipal or county charter. This does not apply to political party offices.

'(3) Any incumbent public officer whose term of office or any part thereof runs concurrent to the term of office for which he seeks to qualify and who desires to resign his office pursuant to the provisions of this act shall execute an instrument in writing directed to the governor irrevocably resigning from the office he currently occupies. The resignation shall be presented to the governor with a copy to the department of state. The resignation shall become effective and shall have the effect of creating a vacancy in office as provided herein, and the public officer shall continue to serve until his successor is elected or the vacancy otherwise filled as provided above in subsection (2).

'(4) Nothing contained in this act shall relate to persons holding any federal office.'

Not wishing to resign his present office unless he is successful in his quest for the office of Justice of the Supreme Court, Holley brought a declaratory action against Tom Adams, as Secretary of the State of Florida, and the State of Florida. In his complaint, Holley alleges that he 'intends, and has publicly announced, he intends, this year to be a Republican candidate for nomination and election to the office of Justice of the Supreme Court of Florida.' He further alleges that, although he has complied with all other requirements of law, the Secretary of State has informed Holley that unless he submits

Page 404

an irrevocable resignation from his office of Circuit Judge ten (10) days before the first date of qualifying (the resignation filing date being June 27, 1970) that the Secretary will reject his qualification papers for the office of Justice of the Supreme Court. In his complaint, Holley attacked the constitutionality of Ch. 70--80. The lower court held that it had jurisdiction and then sustained the provisions of Ch. 70--80, Laws of Florida, as not violating the provisions of the Florida Constitution or of the United States Constitution.

This appeal resulted and the cause has been accelerated so as to make possible the rendition of a decision prior to the June 27, 1970 deadline for submission of the resignation.

The appellees maintain that Holley only seeks advice as to his future action and is not entitled to relief under the decision in Bryant v. Gray,70 So.2d 581 (Fla.1954). The Bryant case, a suit for declaratory decree, sought a construction of the constitutional provision declaring the Governor ineligible for re-election for the next succeeding term. It was alleged that plaintiff Bryant desired to be a candidate and Might be a candidate for the next succeeding term. He was not sure. The question was therefore hypothetical and too remote as to time and too uncertain as to contingencies to warrant declaratory relief.

In the case Sub judice, Holley alleges that he Intends to be a candidate and has Publicly announced his intention to be a candidate. He has filed with the Secretary of State a declaration of such intention, designation of campaign treasurer and campaign fund and depository collection, deposit and disbursement of campaign funds. These circumstances call into play the principle announced in James v. Golson, 92 So.2d 180 (Fla.1957), which held that under the provisions of § 86.011(2) (formerly § 87.01(2), Fla.Stat., F.S.A., the Court may render a declaratory judgment,

'Of any fact upon which the existence or nonexistence of such immunity, power, privilege or right does or may depend, whether such immunity, power, privilege or right now exists or will arise in the future. Any person seeking a declaratory judgment may also demand additional, alternative, coercive, subsequent or supplemental relief in the same action.'

the fact that a controversy had not matured is not always essential.

The action for declaratory judgment was appropriate and the Circuit Court had jurisdiction.

Holley contends that Ch. 70--80, Laws of Florida, is invalid as a legislative attempt to prescribe qualifications of eligibility to a constitutional public office, the qualifications for which are prescribed by the Florida Constitution. In considering this contention, the distinction between eligibility for office and qualifications or conditions imposed upon an office seeker should be kept clear.

In determining the validity of the statute certain basic principles of constitutional construction must be followed.

First, it is the function of the Court to interpret the law, not to legislate.

Second, courts are not concerned with the mere wisdom of the policy of the legislation, so long as such legislation squares with the Constitution.

Third, the courts have no power to strike down an act of the Legislature unless the provisions of the act, or some of them, clearly violate some express or implied inhibition of the Constitution.

Fourth, every reasonable doubt must be indulged in favor of the act. If it can be rationally interpreted to harmonize with the Constitution, it is the duty of the Court to adopt that construction and sustain the act.

Page 405

Fifth, to the extent, however, that such an act violates expressly or clearly implied mandates of the Constitution, the act must fall, not merely because the courts so decree, but because of the dominant force of the Constitution, an authority superior to both the Legislature and the Judiciary. Amos v. Mathews, 99 Fla. 1, 126 So. 308 (1930).

The judiciary will not nullify legislative acts merely on grounds of the policy and wisdom of such act, no matter how unwise or unpolitic they might be, so long as there is no plain violation of the Constitution. Jackson Lumber Company v. Walton Company, 95 Fla. 632, 116 So. 771 (Fla.1928). See also Williams v. City of Jacksonville, 118 Fla. 671, 160 So. 15 (1935).

Holley relies upon Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944), where the Court considered a statute requiring resignation by any executive or administrative officers before running for another office. The Texas Supreme Court held that the statute was unconstitutional as attempting to impose an additional qualification beyond that required by the Constitution.

On the other hand, the appellees rely upon Mulholland v. Ayers, 109 Mont. 558, 99 P.2d 234 (1940), which also involved a resignation statute substantially similar to the one at issue in the case Sub judice. The Court upheld the statute as being constitutional, saying,

'A person may possess the requisite qualifications or may be eligible to many different offices. The legal requirement, however, that he may not hold more than one at a time does not affect his eligibility to hold them all. On the other hand, the requirement that an office held by one who becomes a candidate for another becomes vacated goes not to his eligibility to hold either office.' (p. 239)

Decisions in other jurisdictions concerning this question are in conflict, so it is necessary to determine the rule which would be applicable in this jurisdiction in the light of our previous decisions.

In Webster's Third New International Dictionary, the word 'eligible' is defined as 'fitted or qualified to be chosen or used.' The word 'qualified' is defined as 'fitted (as by endowments or accomplishments) for a given purpose: competent, fit.'

The word 'eligible,' when used in speaking of a candidate for office as being eligible, means capable of being chosen, while qualified means the performance of the acts which the person chosen is required to perform before he can enter into office. See Bradley v. Clark, 133 Cal. 196, 65 P. 395 (1901).

Holley relies upon Thomas v. State ex rel. Cobb, 58 So.2d 173 (Fla.1952), where a statute requiring candidates for the...

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