State ex rel. Roundtree v. Johnson

• Decision Date: 21 April 1971
• Docket Number: No. 40933,40933
• Citation: 247 So.2d 54
• Parties: STATE ex rel. William H. ROUNDTREE, Petitioner, v. Clarence T. JOHNSON, Junior, Respondent.
• Court: Florida Supreme Court

Page 54

247 So.2d 54

STATE ex rel. William H. ROUNDTREE, Petitioner, v. Clarence T. JOHNSON, Junior, Respondent.

No. 40933.

Supreme Court of Florida.

April 21, 1971.

William H. Roundtree, Cocoa, for petitioner.

Larry Klein of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for respondent.

PER CURIAM.

We here consider a petition for writ of prohibition ¹ on relation of William H. Roundtree, a citizen and attorney (officer of the court) residing and engaging in the practice of law in the Eighteenth Judicial Circuit of Florida. After hearing oral argument on questions concerning the propriety of Relator's standing to seek prohibition in this cause and concerning the merits thereof, we deem it timely and appropriate that an early decision be rendered herein on the merits.

The question presented by the petition for the writ of prohibition is whether the Honorable Clarence T. Johnson, Jr. was legally appointed on January 4, 1971 by the Governor of Florida as one of the Circuit Judges of the Eighteenth Judicial Circuit. Relator contends that Clarence T. Johnson, Jr. was not legally appointed pursuant to a special census taken by the Governor's special judicial census commission created in 1970 under F.S. section 26.011, F.S.A. This special census ascertained the population in the two counties of the circuit (Brevard and Seminole) to be 326,750 inhabitants as of July 1, 1969, and was officially proclaimed to be such by the Governor on November 2, 1970. The 1970 Federal decennial census reflected the population of the Eighteenth Judicial Circuit to be only 313,698. On December 30, 1970 that portion of the 1970 Federal decennial census relating to Florida was certified to the Governor of Florida by the Director of the Federal Census Bureau.

Under the special census reflecting 326,750 inhabitants, the Circuit was entitled to an additional circuit judge, its seventh. At the time of Clarence T. Johnson, Jr.'s purported appointment, the circuit had six incumbent circuit judges under prior census population figures, which were within the range of 300,000 persons. Population of 26,750 persons in excess of 300,000 persons entitled the circuit to an additional seventh judge pursuant to Section 6(2), Article V, State Constitution, which provides in part:

'The legislature shall provide for one circuit judge in each circuit for each fifty thousand inhabitants Or major fraction thereof according to the last census authorized by law. * * *' (Emphasis supplied.)

However, under the 1970 Federal decennial census the number of persons in the circuit over 300,000 was only 13,698. Therefore, under that census there was not a major fraction of 50,000 inhabitants.

Relator contends that inasmuch as the Governor did not purport to appoint Clarence T. Johnson, Jr. Circuit Judge under the special census until January 4, 1971 after the 1970 Federal decennial census population figures had been officially certified on December 30, 1970 by the Director of the Federal Census Bureau, the appointment attempted was a nullity because the special census was not 'the last census authorized by law' and was superseded by the Federal census.

In support of his contention Relator relies upon State ex rel. Pettigrew v. Kirk, Fla.1970, 243 So.2d 147, which, following Gray v. Bryant, Fla.1960, 125 So.2d 846, held that the Governor in office upon official certification of the Federal decennial census could immediately thereafter make appointments under such census as the last census authorized by law of additional circuit judges pursuant to Section 6(2) of Article V, State Constitution. The Court in Pettigrew pointed out Section 8 of Article X, State Constitution, provides in part:

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

Relator agrees that prior to December 30, 1970, the date the 1970 Federal decennial census population figures for Florida were certified, the Governor could have appointed Clarence T. Johnson, Jr. a circuit judge in the Eighteenth Judicial Circuit pursuant to the special census but not thereafter.

Turning now to a consideration of the questions presented, we have no difficulty in reaching the conclusion Relator has standing to seek a writ of prohibition to restrain illegal judicial authority from being exercised. Compare State ex...