State ex rel. Hawthorne v. Wiseheart

• Decision Date: 08 October 1946
• Citation: 28 So.2d 589,158 Fla. 267
• Parties: STATE ex rel. HAWTHORNE v. WISEHEART.
• Court: Florida Supreme Court

28 So.2d 589

158 Fla. 267

STATE ex rel. HAWTHORNE v. WISEHEART.

Florida Supreme Court

October 8, 1946

Rehearing Denied Nov. 26, 1946.

Murrell, Fleming & Flowers and Thomas H. Anderson all of Miami, and J. Lewis Hall, of Tallahassee, for petitioner.

M. L Mershon, W. G. Ward, and J. P. Marchant, all of Miami, James Messer, Jr., of Tallahassee, and Robert H. Anderson, of Miami, for respondent.

TERRELL, Justice.

On June 24, 1946 the Governor appointed N. Vernon Hawthorne to the office of Circuit Judge, Eleventh Judicial Circuit of Florida, the position at the time being held by Marshall C. Wiseheart under an appointment and commission dated June 4, 1943. Hawthorne promptly filed information in quo warranto challenging the title of Wiseheart to the office. A demurrer to Wiseheart's return to the information raises the sole question presented: The validity of Wiseheart's title to the office drawn in question.

The facts out of which the answer to this question must be deduced are these: Wiseheart was duly elected, qualified, and served as a member of the House of Representatives, Legislature of 1943, the time for which he was elected being from the general election in 1942 to the general election in 1944. On June 4, 1943, he resigned as a member of the House of Representatives and was appointed and commissioned Judge of the Eleventh Judicial Circuit of Florida for the term ending the first Tuesday after the first Monday in January, 1949. The appointment was to fill out the unexpired term of the Honorable Worth W. Trammell, resigned.

The Legislature of 1943 enacted Chapter 21760, F.S.A. § 26.51, the pertinent part of which is as follows:

'Section 1. That beginning July 1, 1943, the annual salaries of the Judges of the Circuit Court of the State of Florida shall be $6,000.00, which salaries shall be paid in equal monthly installments by warrants drawn by the State Comptroller upon requisition made for same.

Section 2. Any Member of the Legislature who may during the time for which he was elected Senator or Member of the House of Representatives, be appointed or elected to a civil office referred to in Section 5, Article III of the Constitution shall receive during the term for which he was elected or appointed to such civil office the salary or emoluments which under the provisions of law appertain to such office at the beginning of the time for which he was elected Senator or Member of the House of Representatives.'

The Legislature of 1943 also enacted Chapter 22153, the effect of which was to amend Chapter 17772, Acts of 1937, by authorizing counties with a population of 260,000 or more to pay their Circuit Judges an additional compensation of ten per cent of the compensation paid them by the state. The letter act contains a provision similar to that here quoted from Section 2 of Chapter 21760 barring Senators and Representatives from participating in its provisions during the time for which they were elected, should they be appointed or elected by any civil office.

Hawthorne contends that both these acts are in direct conflict with Section 5, Article III of the Constitution, and, being so, Wiseheart's appointment was devoid of legal sanction, that he usurps the office of Circuit Judge, and that his appointment was void ab initio. Section 5, Article III, is as follows:

'No Senator or member of the House of Representatives shall during the time for which he was elected, be appointed, or elected to any civil office under the Constitution of this State that has been created, or the emoluments, whereof shall have been increased during such time.'

The latest interpretation of this provision of the Constitution was in Advisory Opinion to Governor, reported in Fla., 22 So.2d 458, wherein we held that no member of the Legislature of 1945 was eligible to appointment to the office of additional Circuit Judge of the Sixth Circuit created at that Session. Other holdings are to the effect: (1) that 'during the term for which he was elected' means the term fixed by the Constitution. Advisory Opinion to Governor, 94 Fla. 620, 113 So. 913. (2) Ineligibility continues during the time for which the member of the Legislature was elected, and he cannot render himself eligible by resigning. Advisory Opinion to the Governor, 49 Fla. 269, 39 So. 63. (3) A Senator elected in 1924 is eligible to be elected Governor in the 1928 General Election, even though the emoluments were increased during his incumbency as Senator. Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41. (4) State ex rel. Landis v. Bird, 120 Fla. 780, 163 So. 248, is enlightening on other phases of this question.

The net result of these holdings is that no member of the Legislature is eligible to appointment as Circuit Judge or to any civil office that was created or the emoluments thereof were increased during the time for which he was elected. If he is a member of the House of Representatives, the time for which he is elected runs to the succeeding general election after the one at which he was elected. If he is a Senator, the time for which he is elected runs to the general election four years from the one at which he was elected. He cannot better his position by resigning his membership in the Legislature, but he is eligible to appointment or election to any civil office immediately following the general election at which his term in the Legislature expires. We are also of the view that a statute raising the compensation of Circuit Judges, as did Chapter 21760 or Chapter 22153, with provision withholding such compensation from members of the Legislature during the time they were elected thereto, does not render them eligible for appointment as Circuit Judge.

The purpose of Section 5, Article III of the Constitution, was to remove the temptation on the part of the Legislature or any of its members to 'featherbed' on the public domain during the period of their election, by raising the salary of or creating public offices and getting themselves appointed thereto. Any device to circumvent this provision of the Constitution should be stricken down. We are of the view, however, that any question of a Legislator's ineligibility to hold office because of Section 5, Article III, must be raised during the time the Constitution prohibits his appointment or election.

Many considerations support this view. Section 5, Article III, does not state a disqualification for office; it only prohibits election or appointment to another office during the period for which one is elected to the Legislature. When that period expires, the prohibition expires with it, and the member of the Legislature is eligible to election or appointment to any civil office. No penalty is imposed for violation of the prohibition, so in determining whether or not its terms have been violated this Court is burdened with no punic consideration because there is no authority to punish. Whether Hawthorne or Wiseheart holds the office of Circuit Judge in Dade County is not the material consideration. The matter with which we are concerned is whether or not Section 5, Article III of the Constitution, is being violated and the mandate of the people, as contained therein, transgressed.

A legal disqualification to hold office continues indefinitely, unless removed by the Legislature or some authority commissioned to remove it. This is not the rule when a legal prohibition interdicts the holding of an office for a specified time. If Wiseheart's title to the office of Circuit Judge had been challenged during the period he was elected to the Legislature, he would no doubt have been declared ineligible and ousted, but that period expired in November, 1944, nearly two years ago. We think, by the very terms of the Constitutional prohibition, it should be construed like a statute of limitations of a statute of repose, and, since the limitation has long since run and there is no other charge of disqualification, Wiseheart's eligibility cannot now be drawn in question.

Section 15, Article IV of the Constitution, authorizes the Governor to suspend all officers not subject to impeachment for malfeasance, misfeasance, or neglect of duty in office, for the commission of a felony, or for drunkenness or incompetency. The Governor cannot, however, reach back and suspend an office for an offense committed prior to his current term. If the power of suspension and removal is limited to the current term, then certainly the prohibition against appointment to office for a period specified in the Constitution should not be permitted to be raised more than a year and a half after it is dead. A statute of limitations would be so construed, and there is no difference in the rules governing statutory and constitutional construction.

Hawthorne contends that Wiseheart's appointment was void ab initio, though he says all orders, decrees, and other proceedings in which he participated are valid. We fail to follow this logic. The facts are that Wiseheart's appointment was, on its face, regular, it was regularly confirmed by the Senate, he qualified as the law requires, and he has faithfully performed the duties of the office to this date, or for more than three years, the major portion of which transpired after the expiration of the time he was elected to the Legislature when there was no question of his eligibility. The Governor and the Senate may not be too severely criticized for their action, since the same thing had been done before and no question was raised to its validity.

Much is said in the briefs about Wiseheart's having been appointed, confirmed by the Senate, qualified, and having assumed his duties as Circuit Judge before the effective date of the Act increasing the emoluments of the office. These facts...