State Ex Rel. Landis v. Thompson

• Decision Date: 18 September 1935
• Citation: 163 So. 270,120 Fla. 860
• Parties: STATE ex rel. LANDIS, Atty. Gen. v. THOMPSON.
• Court: Florida Supreme Court

163 So. 270

120 Fla. 860

STATE ex rel. LANDIS, Atty. Gen. v. THOMPSON.

Florida Supreme Court

September 18, 1935

En Banc

Original quo warranto proceeding by the State of Florida, on the relation of Cary D. Landis, Attorney General, against Uly O Thompson.

Judgment in accordance with opinion.

COUNSEL

Cary D. Landis, Atty. Gen., H. E. Carter, Asst Atty. Gen., Cockrell & Cockrell, Francis P. Fleming, E. J L'Engle, L. R. Milton, and P. H. Odom, all of Jacksonville, H. T. Cook, of Bunnell, Hull, Landis & Whitehair, of De Land, and MacWilliams & Upchurch, of St. Augustine, for relator.

D. H. Redfearn, R. H. Ferrell, Thomas H. Anderson, H. H. Eyles, and E. F. P. Brigham, all of Miami, for respondent.

OPINION

DAVIS Justice.

The state, by its Attorney General, has filed an information in quo warranto against respondent, Uly O. Thompson, requiring him to show by what authority he continues to exercise the powers and duties of a circuit judge of the Eleventh judicial circuit of Florida, notwithstanding the becoming effective of Senate Bill No. 4 (chapter 17085, Acts of 1935).

To the pleading of the Attorney General respondent has filed an answer which sets up, in effect, the alleged right of the respondent to continue to hold the office he claims, under and by virtue of chapter 9163, Acts of 1923, Laws of Florida, the respondent's contention being that section 45 of article 5 of the Constitution purportedly ratified at the general election in 1934 was never properly submitted to the electors, and therefore not legally adopted as a part of the State Constitution, and even if it was, that said Senate Bill No. 4, passed at the 1935 session of the Legislature, was never constitutionally enacted as a valid law of the state of Florida, and that it is otherwise contrary to and violative of the paramount law set forth in the provisions of the State Constitution controlling legislation of that character.

Specifically respondent avers in his return that on the 27th day of January, 1930, he was duly appointed by the Honorable Doyle E. Carlton, who was then Governor of the state of Florida, judge of the circuit court of the Eleventh judicial circuit of the state of Florida, and he duly qualified for such office as required by law, and that his appointment as said judge was thereafter confirmed by the Senate of the state of Florida at its next regular session, and he has since said time and is now exercising the franchises, functions, jurisdiction, and powers of said office by virtue of said appointment and confirmation of the Senate of the state of Florida, and that although the term of the commission under said appointment did expire on the 6th day of June, 1935, he is now holding over and acting in pursuance of a continuing constitutional commission and by reason thereof is exercising the functions, franchises, jurisdiction, and powers as circuit judge of the Eleventh judicial circuit of Florida because his successor has not been appointed by the Governor of the state of Florida and confirmed by the Senate of the state of Florida, as is provided by the Constitution and laws of the state of Florida; that he is now and will cintinue to be judge of the circuit court of the Eleventh judicial circuit of Florida, until his successor is appointed by the Governor of the state of Florida and confirmed by the Senate, for the reason that the amendment to the Constitution of the state of Florida, set up and known as section 45, article 5 thereof, providing for the reapportionment and reduction of all judicial circuits, and circuit judges in the state of Florida and for the appointment of additional judicial circuit judges and the designation of the place of residence of such additional judge or judges, and Senate Bill No. 4, redistricting the state of Florida into judicial circuits and providing for the appointment of circuit judges and repealing existing laws in conflict with the provisions of said act are unconstitutional and void for the following reasons:

1. By said purported amendment an attempt was made to amend the Constitution in four separate and independent ways by repealing all or portions of sections 8, 35, 42, and 43 of article 5 of the Constitution of the state of Florida without submitting separately to the electors each of said amendments and giving the electors an opportunity to vote 'yes' or 'no' on each of said amendments provided by section 1, article 17, of the Constitution of the state of Florida.

2. The amendment proposed by the Legislature was not copied upon the ballots used when the same was submitted to the electors of the state of Florida for approval or rejection, as provided by section 1, article 17, of the Constitution of the state of Florida, as shown by the provisions of said ballot relating to said amendment as follows:

'Proposing to Amend Article V of the Constitution of Florida Relating to the Judiciary by Adding Thereto an Additional section to be Known as Section 45, Providing that there shall Be No More Than Fifteen Judicial Circuits of the State of Florida, the Same to be Designated, Numbered and Defined by Act of the Legislature; Provided, that no Such Judicial Circuit Shall Embrace Less than Fifty Thousand Inhabitants According to the last Preceding State or Federal Census; and Provided Further, that No Existing Judicial Circuit Shall be Affected Except by Act of the Legislature Under This Amendment; Nor Shall Any Existing Circuit Judge or State Attorney be Disturbed in the Tenure of His Office Until the Expiration of His Present Commission; Making it the Duty of the Legislature at its Next Regular Session to Pass Suitable Laws to Effect this Amendment, and Providing That There Shall Be One Circuit Judge to Each Judicial Circuit, but Additional Circuit Judges May Be Provided for by Law as Now Authorized; but the Total Number of Circuit Judges in any One Circuit Shall Not Exceed One for Every Fifty Thousand Inhabitants or Major Fraction Thereof; and Providing that in Circuits Having More Than One Judge, the Legislature May Designate the Place of Residence of Any Such Additional Judge or Judges.'

3. The substance of the amendment was not placed upon the ballot used.

4. The amendment as appearing upon the ballot used contained incorrect and misleading statements of the substance of the amendment.

5. A material portion of the amendment proposed by the Legislature was omitted from the amendment that appeared upon the ballots used.

6. Senate Joint Resolution No. 582, proposing said amendment to the Constitution, upon reaching the House of Representatives for consideration, was amended by three separate amendments, neither of which was concurred in by the Senate, and from one of which amendments the House of Representatives never receded, so that no proposal to amend the Constitution was ever agreed upon by the requisite three-fifths vote of the members of the House and Senate so as to authorize the submission thereof to the people for ratification or rejection.

7. The purported amendment constituted a revision of and not an amendment to article 5 of the Constitution.

8. Senate Bill No. 4 was passed in the Senate of the state of Florida after 12 o'clock noon May 31, 1935, contrary to section 2, article 3, of the Constitution, had arrived.

9. It is common public knowledge of which the courts will take judicial notice that the 1935 Legislature of the state of Florida remained in session approximately forty hours after the constitutional sixty-day limitation had expired, for the purpose of passing legislation, and that during said period said Senate Bill No. 4 was passed.

10. Section 5-A of said Senate Bill No. 4 was never passed by both Houses of the Legislature, and being inseparably connected with the remainder thereof, said bill as a whole was thereby rendered nugatory, illegal, and void.

11. Said Senate Bill No. 4, embraces more than one subject-matter properly connected therewith by the inclusion therein of section 5-A, which is in violation of section 16, article 3 of the Constitution of the state of Florida. 12. Said Senate Bill No. 4 violates section 21 of article 3 of the Constitution in that it is not a law of general and uniform operation throughout the state.

13. Said Senate Bill No. 4 does not provide for carrying into execution the alleged constitutional amendment in the manner provided in the amendment itself.

14. By the provisions of said Senate Bill No. 4, it designates where constitutional judges may or may not reside.

15. Said Senate Bill No. 4 fails to provide for additional circuit judges for judicial circuits as authorized by section 43 of amended article 5 of the Constitution of the state of Florida.

16. Said Senate Bill No. 4 fails to designate the place of residence of the additional judge or judges provided for under the provisions of section 45 of amended article 5 of the Constitution of the state of Florida.

17. The amendment empowered the Legislature to provide additional circuit judges by law as authorized by section 43 of amended article 5 of the Constitution of the state of Florida. The statute, therefore, must be construed to refer to additional judges only, and the number so provided for is in excess of the number allowed by the provisions of said amendment.

18. By designating the residences of circuit judges in all of the circuits except the Sixth and Thirteenth judicial circuits, which are excepted from the provisions of section 2, said Senate Bill No. 4 is in conflict with section 45 of amended article 5, which authorizes the Legislature to designate only the place of residence of any such additional judge or judges.

19. In section 1 of Senate Bill No. 4, it is provided, among other things, that the Second circuit '* * * shall have...