In Re Advisory Opinion To Governor, in Re

• Decision Date: 20 January 1893
• Court: Florida Supreme Court
• Parties: In re ADVISORY OPINION TO THE GOVERNOR.

12 So. 114

31 Fla. 1

In re ADVISORY OPINION TO THE GOVERNOR.

Florida Supreme Court

January 20, 1893

Advisory opinion of the supreme court to the governor, under Const art. 4,§ 13, as to the duty of the governor in commissioning James E. Johnson, a tax collector of Duval county, suspended in 1890, and re-elected in 1892.

Syllabus by the Court

SYLLABUS

1. A suspension from office and appointment to fill the office under section 15 of article 4 of the constitution, do not affect the suspended officer's right to qualify for or exercise the duties of a succeeding term of the same office nor do they prevent a governor succeeding the one who made the suspension from commissioning the suspended officer for the new term.

2. An appointment to fill an office, the incumbent of which has been suspended under section 15 of article 4 of the constitution, cannot be for a longer period than the remainder of the pending term of the suspended officer, and until the qualification of his successor.

OPINION

Hon. Henry L. Mitchell, Governor of the State of Florida.

Sir: We have the honor to acknowledge the receipt of your communication dated the 17th inst., in which you state that at the general election in 1890 James E. Johnson was elected tax collector for Duval county, and that he was re-elected to the office at the general election in 1892 that on the 29th day of October, 1892, he was suspended from office by your predecessor, Gov. Fleming, for neglect of duty, and on the 26th of November, 1892, E. W. Gillen was commissioned as tax collector of Duval county to act until the adjournment of the next session of the senate; and you ask an interpretation of the constitution upon the question of your power and duties as to commissioning Johnson for the term to which he was elected in the year 1892.

The constitution (section 13, art. 4) authorizes the governor to require our opinion 'as to the interpretation of any portion of this constitution upon any question affecting his executive powers and duties,' and it makes it our duty to render an opinion in writing. The duty thus devolved upon us by the organic law goes no further than the interpretation of the constitution upon some particular question affecting your executive power and duties.

Any question of executive duty involves necessarily that of executive power. The question of your power under the facts stated by you involves that of the effect of the suspension made by your predecessor. At the time of this suspension Johnson was holding the office of tax collector of Duval county for the term commencing on the first Tuesday after the first Monday in January, 1891, and to end on the corresponding Tuesday of January, 1893. From this term of office he was suspended on the 29th day of October, 1892, for neglect of duty in office, and the effect of the suspension was to arrest and take away from him the right and power to perform the duties of the office. This deprivation or arrest of the power and right to exercise the functions of the office until the senate shall act, or fail to act, at its next ensuing session, is the effect which the constitution has attached to the executive ascertainment of the official delinquency which the order of suspension affirms; and there is but one other limitation to this effect, and that is the power of the governor to reinstate at any time, at least until the senate may meet, which power adheres to the executive office, to be exercised whenever the governor finds that the circumstances of any case justify it. If the senate meets and refuses to concur with the governor in a removal of the officer for the cause stated in the order of suspension, or if it meets and adjourns without taking action upon the matter, the law restores the officer; while if the senate concurs in a removal of the officer, his right to the office is, in effect, adjudged to have been taken away and forfeited as from the date of the order of suspension, or at least the notice thereof, as the penal consequence of the delinquency stated in the order of suspension and recognized by the constitution. Section 15, art. 4. When the senate meets pending the term of the office from which the suspension has been made, and fails to act, or refuses to remove, the restoration is to the exercise of the functions of the place for the balance of such pending term, and also to the salary or compensation for the time he was suspended; whereas, if it does not meet until after the term, then there can be no restoration, except to the right to the salary or other compensation for the time of suspension. Had the senate met in special session between the day the order of suspension was made in this case and the first Tuesday after the first Monday of January of the present year, and adjourned without taking action on the question of Johnson's removal, or had it refused to remove him, the restoration would have been to the term from which he was suspended; or, meeting thus, had it removed him, the removal would have been from that term of office and the combined executive and senatorial action would have had no effect upon his right to any future term. The delay of senatorial action, sometimes necessitated, in the absence of a special session, by the system of biennial sessions of the legislature, to a period subsequent to the termination of the term from which there is suspension, cannot enlarge or change the effect of that action, or of the antecedent executive action. The final consummation intended by a suspension must, as shown in State v. Johnson, 11 South. Rep. 845, (lately decided,) always be a removal of the officer; and this removal is for the remainder of the term from which he is suspended, and nothing more. The remainder of the existing term is, including its incidents and rights, in our judgment, all the removal can act on or...