State Ex Rel. Landis v. Bird

• Decision Date: 12 September 1935
• Citation: 163 So. 248,120 Fla. 780
• Parties: STATE ex rel. LANDIS, Atty. Gen. v. BIRD et al.
• Court: Florida Supreme Court

163 So. 248

120 Fla. 780

STATE ex rel. LANDIS, Atty. Gen. v. BIRD et al.

Florida Supreme Court

September 12, 1935

En Banc.

Original quo warranto proceeding by the State of Florida, on the relation of Cary D. Landis, as Attorney General, for a judgment of ouster against John U. Bird, in which John I Viney, claimant, was made a party.

Judgment of ouster denied.

COUNSEL

Cary D. Landis, Atty. Gen., and H. E. Carter, Asst Atty. Gen., for relator.

J Locke Kelly and Jack F. White, both of Clearwater, and W. B. Dickenson, of Tampa, for respondent Bird.

Bussey, Mann & Barton, of St. Petersburg, for claimant Viney.

Charles F. Blake, of Tampa, D. A. Finlayson, of Monticello, Frank L. Butts, of Miami, C. Edmund Worth and C. Fred Thompson, both of Tampa, John C. Polhill, E. B. Casler, Jr., W. H. Wolfe, Ray E. Ulmer, Alfred P. Marshall, S.E. Simmons, L. Y. Douglas, and Edwin W. Grenelle, all of Clearwater, C. G. Varn, of Panama City, D. M. Johnson, Cyril E. Pogue, H. H. Baskin, Ralph Richards, M. H. Jones, J. E. Hampton, Ed. S. Whitson, Arthur W. Jordan, and H. L. Thompson, all of Clearwater, D. G. Haley, John F. Burket, Paul M. Souder, F. W. Dart, Frank Evans, J. D. Gill, S. R. Perry, Arthur R. Clarke, J. Douglas Arnest, C. L. McKaig, John Fite Robertson, Stephen B. Jennings, Harrison E. Barringer, and Fred Redd, all of Sarasota, W. H. Wilson, of Lake City, and Thomas L. Mervin, Jr., amici curiae. The question to be determined involves the authority of the Governor to appoint circuit judges. A brief consideration of the organic system for the selection of officers will be helpful in a judicial ascertainment of the intendments of the present Constitution relative to the appointment of circuit judges.

The government of this state is established upon the principle expressed in the Constitution that 'all political power is inherent in the people.' The will of the people is expressed at the polls by those of the citizens upon whom the right to vote is conferred. They elect by direct ballot those who are authorized to enact the laws within the limitations prescribed in the Constitution; while those who, as officers are to administer the laws are chosen by ballot at the polls, or are appointed or otherwise chosen by expressly authorized officials or tribunals. Authority to select officials to administer the laws is not inherent in any department of the government, but is delegated within definite limitations by the people through the Constitution and statutes.

Before delegating any of the powers of government, the Constitution, adopted at the polls and expressing the will of the people, divided such powers into three departments; and the Constitution of 1885 provides that 'no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by this Constitution.' Article 2.

All the Constitutions of Florida provided for the election at the polls of the Governor and the members of the Legislature. In the Constitution of 1838 and 1861 the principal state officers, including the circuit judges, were chosen by the Legislature, though, by amendments, some officers were to be elected at the polls. Under the Constitution of 1865 the state administrative and judicial officers, except the Supreme Court, were in general elected at the polls.

Under Acts of Congress of March and July, 1867 (14 Stat. 428, 15 Stat. 2, 14, 41), the Florida Constitution dated February 25, 1868, was formulated, promulgated, and adopted, under federal military supervision by persons a majority of whom had not yet been duly enfranchised. The Fourteenth Amendment to the Federal Constitution become operative July 28, 1868, and the Fifteenth Amendment, March 30, 1870. The Florida Constitution adopted as stated above made radical changes in the provisions of the previous organic systems of selecting state and county officers in the executive and judicial departments of the state government. It provided that the Governor, Lieutenant Governor, members of the Legislature and constables should be elected at the polls, and that all other officers of the executive and judicial departments except the clerk of the Supreme Court should be appointed by the Governor, in some cases with, and in other cases without, confirmation by the Senate.

Because of the extensive powers conferred by the Constitution of 1868 upon the Governor to appoint the officials who interpret as well as those who execute the law, the Constitution of 1885 was framed and adopted by representative citizens of the state, making most of the officers of the executive and judicial department elective. See Compiled General Laws of Florida, 1927, Annotated Edition, p. 4764, Compact Edition, p. 26.

However, because of the then inefficiency of many of the electors in some of the judicial circuits of the state, the system of having circuit judges appointed by the Governor and confirmed by the Senate was continued by the Constitution of 1885. Section 8, art. 5.

All of the Constitutions of the state provided that vacancies in executive and judicial official offices which may occur or may be declared by the law shall be filled by executive appointments until the next election or until the end of the next Legislature or to the end of the next ensuing session of the Senate, according as the officers were chosen by election or by the Legislature or by the Governor and the Senate. No officers are now chosen by the Legislature except legislative officers under section 6 of article 3.

Under the Constitution of 1885 which was ratified in November, 1886, and became effective January 1, 1887, state and county officers in the executive and judicial departments are chosen either (1) by election at the appropriate biennial general elections held on the first Tuesday after the first Monday in November of the even numbered years; or (2) by appointment by the Governor and confirmation by the Senate; or (3) by appointment by the Governor alone as in section 16 of article 4, sections 27 and 34, art. 3; section 230, Comp. Gen. Laws; or (4) by exceptional methods as in section 6 of article 3 and section 7 of article 5. The Legislature convenes in regular biennial sessions on the first Tuesday after the first Monday in April of the odd-numbered years, and may be in session sixty days. Extra sessions convened by the Governor may continue twenty days. The Senate convenes and adjourns as a branch of the Legislature. Circuit judges are appointed by the Governor and confirmed by the Senate. Their official terms are for periods of six years and begin during or shortly after the sessions of the Senate at which the appointments are to be made and confirmed.

Vacancies in the elective offices, except in the offices of Governor and members of the Legislature and officers of the Legislature under section 6 of article 3, are filled by executive appointment until 'the election and qualification of successors at the ensuing general election,' (section 6, art. 18) or for the unexpired term if it comes before the next general election, (section 7, art. 4).

Elections to fill vacancies in the elective offices are for the unexpired term. Sections 7, 9, art. 18; In re Advisory Opinion, 72 Fla. 422, 73 So. 742; In re Executive Communication, 25 Fla. 426, 5 So. 613; State ex rel. v. Day, 14 Fla. 9; State v. Gamble, 13 Fla. 9. Vacancies in the office of Governor are filled by the succession of the President of the Senate, or if none, by the Speaker of the House of Representatives. Section 19, art. 4; section 34, art. 3, Constitution.

Vacancies in office where the officers are required by law to be appointed by the Governor and confirmed by the Senate are filled by executive appointment until the end of the term, if that comes before the next session of the Senate (section 7, art. 4), or until the end of the next ensuing session of the Senate if a session of the Senate comes before the end of the term. Section 7, art. 4; section 33, art. 5, Constitution; sections 461(396) to 464(399) Comp. Gen. Laws; Opinion of Justices, 14 Fla. 277; State ex rel. v. Murphy, 32 Fla. 138, 13 So. 705; Advisory Opinion, 45 Fla. 154, 34 So. 571. All confirmations of executive appointments by the Senate are for a full term or for the remainder of a term in which a vacancy occurs. Advisory Opinion, 45 Fla. 154, 34 So. 571; Simonton v. State ex rel., 44 Fla. 289, 31 So. 821.

Section 7 of article 4 of the Constitution authorizes the Governor to fill a vacancy in office for the unexpired term where 'no mode is provided by this Constitution or by the laws of the State for filling such vacancy.' Authority to appoint to fill vacancies in office for periods other than for the unexpired term is to be found in other provisions of the Constitution and statutes than section 7 of article 4. See section 6, art. 18; sections 461(396) to 464(399) Comp. Gen. Laws; section 15, art. 4; section 34, art. 3.

Vacancies in the office of State Senator or member of the House of Representatives are filled by special elections (section 254(219) Comp. Gen. Laws); therefore, section 7 of article 4 of the Constitution is not applicable where a vacancy occurs in the office of a member of the Legislature. Special elections may also be held where there has been no choice of any officer who should have been elected at a general election. See, also, paragraph 3, 4, section 254(219), Comp. Gen. Laws.

Under the Constitution and statutes, the Governor is authorized to appoint other officers in the executive and judicial department of the state government: (1) Where the law provides that an office shall be filled by executive appointment as in sections 15 and 16 of article 4; sections 27 and 34 of article 3 of the...