State ex rel. Pettigrew v. Kirk, 40534

• Decision Date: 21 December 1970
• Docket Number: No. 40534,40534
• Parties: STATE of Florida on the relation of Richard A. PETTIGREW and Jerry Thomas, Relators, v. Claude R. KIRK et al., Respondents.
• Court: Florida Supreme Court

Page 147

243 So.2d 147

STATE of Florida on the relation of Richard A. PETTIGREW and Jerry Thomas, Relators, v. Claude R. KIRK et al., Respondents.

No. 40534.

Supreme Court of Florida.

Dec. 21, 1970.

Talbot D'Alemberte, Miami, for relators.

Leo Foster, of Parker, Foster & Madigan, Tallahassee, for Claude R. Kirk, Governor.

Robert L. Shevin and Stuart Simon, Miami, for Tom Adams, as Secretary of the State of Florida.

Jesse F. Warren, Jr., Tallahassee, for Board of Business Regulation, respondents.

BOYD, Justice.

This cause is before us on petition of Richard Pettigrew, as Speaker of the Florida House of Representatives and as a citizen and taxpayer of the State of Florida, and Jerry Thomas, as President of the Florida Senate, taxpayer and citizen of Florida, seeking issuance of a writ of quo warranto to prevent the Honorable Claude R. Kirk, Jr., as Governor, from appointing additional circuit judges whose offices are created by the constitutional provisions of Section 6, Article V, which requires one circuit court judge for each 50,000 population or major fraction thereof. The suit seeks to prevent the issuance of commissions for such appointees by the Honorable Tom Adams as Secretary of State. The suit further attempts to prevent Thomas D. Wood, Charles W. Rex, Jr., Eugene M. Toll, Roger P. Doyle, C. Cheshull Harrison, Jr., as and constituting the Board of Business Regulation of Florida, from issuing alcoholic beverage licenses to applicants based on increases of population determined by the 1970 Federal Census.

There is no allegation that any of the respondents are exercising or attempting to exercise any authority contrary to law which could constitute a basis for issuance of a writ of quo warranto. ¹ In the introduction of relator's brief is shown the following language:

'The action seeks to prevent a threatened exercise of power by the executive branch in the appointment of additional Circuit Judges and issuance of additional beverage licenses immediately on certification of the 1970 census. The relators are asserting a controlling provision of the Florida Constitution, specifically Article X, Section 8, which states:

'Section 8. Census

'(a) Each decennial census of the state taken by the United States shall be an official census of the state.

'(b) Each decennial census, for the purpose of classifications based upon population, shall become effective on the thirtieth day after the final adjournment of the regular session of the legislature convened next after certification of the census."

It is obvious that relators seek to enjoin the respondents from performing certain official acts which will vitally affect the public interest of the State. Although quo warranto is not the proper remedy, we are of the view that since all the parties have appeared before the Court and argued the questions involved we should exercise our jurisdiction under the all writ section. ²

First, relators admit that subsection (2), § 6 of Article V of the Florida Constitution of 1968 requires that there shall be one circuit court judge for each 50,000 population based upon the last census authorized by law. They further admit said provision to be self-executing to the extent there is no authority in the Legislature to prevent the appointment and qualification of such judges. ³

Relators insist that although the Court held in Gray v. Bryant, supra, that the Governor in office upon official certification of the 1960 Census could make the appointments and commissions could be issued forthwith that the law had now been changed. They cite § 8(a) of Article X, Florida Constitution, which provides the Federal Census will be the official state census and further cite § 8(b) of Article X which provides that powers and authority created under population acts shall not become operative until 30 days after the adjournment of the next regular session of the Legislature after certification of the census. Relators urge upon us the view that no new circuit judges can be appointed until 30 days after adjournment of the 1971 general session of the Florida Legislature.

Relators insist that since the incumbent Governor Claude R. Kirk, Jr., will be succeeded in office on January 5, 1971, that if he should appoint new circuit judges without proper constitutional authority, the exercise, or attempted exercise, of jurisdiction could become highly detrimental to the public interest. We agree the question merits determination by this Court. We are mindful of constitutional limitations of courts to interfere with acts of the executive and legislative branches of the government when acting under color of law. We would observe here that respondent, Honorable Claude R. Kirk, Jr., sought an advisory opinion of this Court on the same question constituting a part of the question here. ⁴ In that proceeding we permitted all aspects of the matters to be argued as in an adversary proceeding. We held that under authority of Gray v. Bryant, supra, upon official certification of the Federal Census showing the population of Florida and determining the number of persons in each judicial circuit the Governor in office at that time could fill the judgeships then created by the automatic provisions of subsection (1) of § 6, Article V, supra. Since we issued our advisory opinion there has been no change in the fundamental law and we find this question is now settled.

We feel subsection 8(b) of Article X does not apply to the creation of new circuit judgeships because the Legislature cannot materially increase or decrease the total number of judges by modifying geographic boundaries of judicial circuits. This is not true of the question here presented concerning issuance of alcoholic beverage licenses.

Florida Statutes § 561.20, F.S.A. provides that in the unincorporated areas of counties there can be only one liquor license for each 2,500 persons. The Legislature enacted this provision of law and has the authority to modify it. In the adoption of section 8(b) of Article X, we feel the people of Florida provided that the Legislature should have an opportunity to examine the new Federal Census and to enact any new legislation required to protect the public interest before the issuance of new licenses. It might well be determined that one license would be authorized for an amount of residents greater or less than 2,500. Because the Legislature has the authority to revise all population acts or to enact new ones at the next regular session, we feel the constitutional provisions of Section 8(b) of Article X apply.

Quo Warranto is not the appropriate remedy here, but in view of the urgency and great public interest in this cause, we are constrained to treat the petition before us as a petition for writ of prohibition. We have jurisdiction under Article V, Section 4(2):

'The supreme court may issue * * * writs of prohibition to commissions established by law, * * * when questions are involved upon which a direct appeal to the supreme court is allowed as a matter of right.'

Respondents appeared voluntarily and argued both the jurisdiction and merits of this cause. Therefore, we dispense with the issuance of a rule nisi and herewith issue the peremptory writ of prohibition directed to the respondents Thomas D. Wood, Charles W. Rex, Jr., Eugene M. Toll, Roger P. Doyle, C. Cheshull Harrison, Jr., as and constituting the Board of Business Regulation, prohibiting them from issuing new alcoholic beverage licenses based upon population increases reflected by the 1970 Federal Census until 30 days after adjournment of the 1971 regular session of the Florida Legislature. As to other respondents, we hold that the petition does not state a cause of action for the reasons stated above and it is, therefore, denied.

It is so ordered.

ROBERTS, DREW and ADKINS, JJ., concur.

McCAIN, J., concurring in part and dissenting in part with opinion.

ERVIN, C.J., dissenting in part and concurring in part with opinion.

DEKLE, Circuit Judge, concurs with ERVIN, C.J.

McCAIN, Justice (concurring in part and dissenting in part).

In respect to the issue of the appointment of judges by the Governor, whoever he may be, when certification is received, I agree that the appointments are then available. However, in respect to the issue of the beverage licenses, it is my determination that we have no jurisdiction inasmuch as the director has not been made a party respondent to the suit. He is the person directly responsible for the issuance of the license, and those individuals named as respondents constitute only an appellate board. Therefore, there is no justiciable issue because no attempt has been made to issue a license and the director has not been made a party to the suit.

Furthermore, I would dissent on the issue of the licenses because the legislature has already set the standards for issuance of the licenses, i.e., one license per 2,500 people or a major fraction thereof, in most instances. Therefore, when the official census on counties is certified from Washington, then the present director may proceed to issue licenses accordingly. I cannot construe our present Constitution as reserving unto the Legislature the right to review singularly population in respect to a determination of beverage licenses.

ERVIN, Chief Justice (dissenting in part and concurring in part):

Two questions are presented in this case: First, does this Court have jurisdiction to entertain an extraordinary original writ (quo warranto or mandamus or prohibition) to implement the contentions of Petitioners, the President of the Florida Senate and the Speaker of the House of Representatives, that Section 8 of Article X of the 1968 Constitution postpones the effectiveness of the 1970 Federal decennial census in Florida until thirty days after the final adjournment of the 1971 regular session of the Florida Legislature insofar as population classifications in Florida are concerned; and Second, does Section 8 of...