In Re Advisory Opinion To Governor, in Re

Citation93 Fla. 1024,113 So. 115
PartiesIn re ADVISORY OPINION to GOVERNOR.
Decision Date12 May 1927
CourtUnited States State Supreme Court of Florida

En Banc.

Advisory opinion of the Justices of the Supreme Court in reply to a question by the Governor pursuant to Const. art. 4, § 13.

Syllabus by the Court

SYLLABUS

Statute requiring Governor to appoint additional circuit judge for Eleventh judicial circuit held valid (Acts [Ex. Sess.] 1925 c. 11366; Const. art. 5,§ 43 [see Acts, 1921, p. 425]). Section 43 of article 5 of the Constitution (see Acts 1921 p. 425) constitutes the authority for chapter 11366, Acts of 1925 (Ex. Sess.), under which the Governor was required to appoint an additional circuit judge for the Eleventh judicial circuit.

Six-year term of office of additional judge for Eleventh judicial circuit began at appointment during which period it was held subject only to Senate's confirmation (Acts [Ex. Sess.] 1925, c. 11366). Upon the enactment of chapter 11366, Acts of 1925 (Ex. Sess.), the office of additional circuit judge for the Eleventh judicial circuit was created. The term of office was six years, and it began to run from the date of the appointment of a person to hold such office, during which period it might be held by the Governor's appointee subject only to confirmation by the Senate of such appointment.

Governor's appointee as circuit judge during Senate's recess holds no longer than end of next session of Senate, to which Governor should submit appointments for confirmation (Rev Gen. St. 1920, §§ 396, 399; Const. art. 4, § 7, and art. 5, § 33). When a vacancy occurs in the office of a circuit judge during a recess of the Senate the Governor fills the vacancy by appointment to hold no longer than the end of the next ensuing session of the Senate, and when the Senate convenes in session it is the duty of the Governor to submit appointees to fill such vacancies to the Senate for confirmation for the unexpired term.

Tallahassee, Florida. May 9, 1927.

To the Honorable the Justices of the Supreme Court of Florida--Gentlemen: Chapter 11366, Laws of Florida, approved November 30, 1925, provided for the appointment of an additional circuit judge for the Eleventh judicial circuit of Florida. Pursuant thereto, I appointed Hon. Will H. Price as additional circuit judge of the Eleventh judicial court of Florida, his commission being issued December 12, 1925. In and by said commission the said Will H. Price was appointed to hold said office 'from the 12th day of December, 1925, until the end of the next ensuing session of the Senate, unless an appointment be sooner made and confirmed by the Senate.'

OPINION

Thereafter but prior to the next ensuing session of the Senate, the said Will H. Price resigned as additional circuit judge of said circuit, his resignation becoming effective June 1, 1926. I thereupon appointed Hon. W. L. Freeland as additional circuit judge of the Eleventh judicial circuit of Florida, to fill the vacancy caused by the resignation of Hon. Will H. Price, his commission being issued June 21, 1926. In and by said commission the said W. L. Freeland was appointed to hold office 'from the 21st day of June, 1926, until the end of the next ensuing session of the Senate, unless an appointment be sooner made and confirmed by the Senate.'

During the present session of the Senate, I reappointed Hon. W. L. Freeland as additional circuit judge of the Eleventh judicial circuit of Florida, submitted and appointment to the Senate, and the same was confirmed by the Senate on April 14, 1927.

The question now arises as to how the commission of Judge Freeland should read, that is to say, whether his commission should be for a period of six years commencing April 14, 1927, or whether for any shorter period of time.

Pursuant to section 13 of article IV of the Constitution of Florida, I have, therefore, the honor to request the written opinion of the Justices of the Supreme Court as to the term for which, under the Constitution, I am authorized and empowered as Governor to issue a commission as additional circuit judge of the Eleventh judicial circuit of Florida to Hon. W. L. Freeland.

Very respectfully,

John W. Martin, Governor.

Hon. John W. Martin, Governor of Florida, Tallahassee, Florida--Sir:

Your communication of the 9th instant has been received and considered.

Section 43 of article V of the Constitution (see Acts 1921, p. 425) constitutes the authority for the Act of 1925 (Ex. Sess.), designated as chapter 11366, under which the Governor was required to appoint an additional circuit judge for the Eleventh judicial circuit. That section of the Constitution provides that each such additional circuit judge shall be appointed by the Governor and confirmed by the Senate and hold office for six years.

When the Legislature determined the existence of the fact that the Eleventh judicial circuit contained 75,000 inhabitants, or more, the condition precedent named in the Constitution to the exercise of the power to make provision for the appointment of one or more additional circuit judges for such circuit and enacted chapter 11366, supra, it created the office of additional circuit judge for the Eleventh judicial circuit, which office should be filled by appointment by the Governor and such appointment confirmed by the Senate. The duration of the term of such office is six years.

Appointment by the Governor and confirmation by the Senate were not required to be concurrent in point of time. Indeed, they could not be unless it had been the purpose of both the constitutional provision and legislative act that no appointment...

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