In Re Advisory Opinion To the Governor, in Re

• Decision Date: 14 May 1913
• Parties: In re ADVISORY OPINION TO THE GOVERNOR.
• Court: Florida Supreme Court

62 So. 363

65 Fla. 434

In re ADVISORY OPINION TO THE GOVERNOR.

Florida Supreme Court

May 14, 1913

In the matter of an advisory opinion to the Governor.

The term of office of an appointee to an elective state office to fill a vacancy shall extend only to the election and qualification of a successor at the ensuing general election.

Syllabus by the Court

SYLLABUS

The provision of section 14 of article 16 of the Constitution that all state, county, and municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified is not a limitation upon the power of the Governor to fill vacancies in the succeeding term of any state and county office. The purpose of the provision is to prevent a hiatus in government until the appointing power acts and the appointee qualifies, wherever there is a vacancy in the term of an office; and to accomplish this the incumbent at the expiration of a former term is authorized to hold over in the succeeding term upon the qualification of a successor as provided by law.

Section 6 of article 18 contemplates that vacancies may occur in the terms of elective offices under the Constitution, and provides that the term of office of all appointees to fill such vacancies shall extend only to the election and qualification of a successor at the ensuing general election.

Section 2 of article 16 provides that every officer of the state shall before entering upon the discharge of his official duties take the prescribed oath. The statutes require the giving of official bonds by designated state officers, and also provide that no commission shall be issued by the Governor to any person who is by law required to give an official bond, until such bond has been duly executed approved, and filed.

The statute provides that every office shall become vacant for neglect or refusal to qualify according to law within 60 days after election or appointment. This has reference to the term of the office for which the election was had or the appointment was made.

In order to qualify as an incumbent of an office, the oath prescribed by the Constitution must be duly taken; and, where a bond is required by law, it must be duly executed approved, and filed.

If a person elected or appointed to office shall neglect or refuse to qualify within sixty days after his election or appointment, the term of the office to which he was elected or appointed is declared by the statute to 'be deemed vacant.'

When a term of an elective state office is vacant within the meaning of the statute, the Governor has the executive power under the Constitution to fill such vacancy by appointment, but the term of office of such appointee 'shall extend only to the election and qualification of a successor at the ensuing general election.'

Where a person is elected to a state office, and neglects or refuses to qualify within 60 days after such election by taking the oath prescribed by the Constitution, and by duly executing a bond if so required by law within such time, the term of such office is by the statute declared to 'be deemed vacant,' and the Governor is authorized to fill such vacancy by an appointment on a commission which 'shall extend only to the election and qualification of a successor at the ensuing general election.'

OPINION The following communication was received from the Governor:

State of Florida, Fxecutive Chamber.

Tallahassee May 12, 1913. To the Honorable Justices of the Supreme

Court of Florida--Gentlemen:

A gentleman who was elected to an elective state office at the general election held in this state November 5, 1912, to succeed himself, has filed with me a bond, an oath, and the statutory commission tax as qualification for the issuance of a commission to such office. The bond and oath were both executed and filed with me May 10, 1913. The bond is predicated upon the said election. No qualification under said election was sooner made, though the election to said office was duly certified and not contested.

In view of the provisions of section 298 of the General Statutes and of the authority duly imposed upon the Governor by the state Constitution to fill vacancies in offices, I have the honor to request the written opinion of the Justices of the Supreme Court as to whether under the Constitution, as Governor, I am authorized to issue to the gentleman so elected and who has so tendered qualification papers a commission for the term of four years for which he was elected, or whether such commission should be issued upon an appointment to extend until the election and qualification of a successor to such officer.

Very respectfully,

Park Trammell, Governor. To His Excellency, Park Trammell Governor of Florida--Sir:

Your communication has been duly considered. In effect your request is for an opinion as to your executive power and duty under the Constitution in issuing a commission to one who at the general election held November 5, 1912, was elected to succeed himself as a state officer, but who, though his election to said office was duly certified and the election was not contested, did not execute and file his oath of office and bond till May 10, 1913.

The provisions of the state Constitution bearing upon the subject are as follows:

'The Governor may, at any time, require the opinion of the Justices of the Supreme Court as to the interpretation of any portion of ...