State v. Amos

Decision Date04 April 1931
Citation133 So. 623,101 Fla. 114
PartiesSTATE ex rel. HODGES v. AMOS, State Comptroller.
CourtFlorida Supreme Court
En Banc.

Error to Circuit Court, Leon County; E. C. Love, Judge.

Mandamus proceedings by the State, on the relation of T. R. Hodges against Ernest Amos, Comptroller of the State of Florida. The circuit court dismissed the proceedings, and the relator brings error.

Affirmed.

BUFORD C.J., and ELLIS, J., dissenting.

Syllabus by the Court.

SYLLABUS

Unless otherwise duly provided, where an office is created the term begins when the office is first filled.

The provisions of section 14, article 16, that an officer shall continue in office after the expiration of his official term until a successor is qualified, is intended to prevent a hiatus and does not affect the cycle of the term fixed by law which ends at the expiration of the statutory term periodically whether the incumbent or another is the successor.

The provision of section 14, article 16, Constitution, that 'all State, County and Municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified,' contemplates that while such an officer shall continue in office, or perform the official duties of the office after the expiration of his official term, and until his successor is duly qualified still the office is vacant as to the new term, in the sense that any office is vacant which is not occupied by a person chosen to fill it for such term.

'Vacancy' means that the office is without such an occupant as precludes the filling of it in any mode which the Constitution may provide, or may recognize as lawful.

When the term of four years for which an officer is appointed under chapter 6532, Acts of 1913, section 1790(1232) Compiled General Laws, expired in July, 1925, and the incumbent held over under section 14, article 16, Constitution, until March 5, 1926, when he was appointed for a term of four years from the latter date, the office became vacant for the purpose of an executive appointment when the statutory term of four years expired in July 1929, and an appointment of another person, made by the Governor January 1, 1930, to fill the vacancy for the unexpired term ending in July, 1933, is legal, and served to terminate the right of the incumbent to hold the office. The law and not the commission issued to an officer controls as to the term of office.

COUNSEL

Parker & Parker, of Tallahassee, for plaintiff in error.

Fred H. Davis, Atty. Gen., and H. E. Carter, Asst. Atty. Gen., for defendant in error.

OPINION

WHITFIELD, J.

Chapter 6532, Acts of 1913, contains a provision that:

'The Governor shall appoint one competent person, who shall fill the office of shell fish commissioner of the State of Florida, and who shall not be financially interested in the oyster or clam industry, who shall hold the office for a period of four years and until his successor is appointed and qualified.' Section 1790(1232), C. G. L.

The law became effective June 4, 1913. The first appointment of a shell fish commissioner under the act was made July 19, 1913, for four years from that date. On July 19, 1917, another appointment was made for four years. The incumbent resigned April 15, 1921, and the relator was appointed and commissioned on April 16, 1921, to hold the office until July 19, 1921, the remainder of the unexpired term. On July 19, 1921, the relator was appointed and commissioned for four years. 'At the expiration of the four year term of said office beginning on July 19, 1921, and ending July 18, 1925, the Relator continued to act as such Shell Fish Commissioner and performed the duties thereof and received the emoluments therefor down to the fifth day of March, 1926, when the said Relator was again appointed and commissioned for four years from March 5, 1926.'

On January 1, 1930, another person was appointed and commissioned to hold the office until July 19, 1933.

The relator brought mandamus proceedings in the circuit court against the state comptroller to require the payment of the salary to relator for the months of January and February, 1930.

The circuit judge held that 'when the Governor appointed a successor to the relator and such appointee qualified on January 1, 1930, relator's tenure of office terminated and thenceforth he no longer was entitled to receive further compensation as such officer,' and dismissed the mandamus proceedings against the state comptroller. Relator took writ of error.

The question presented is the legality of the appointment of a successor to the relator on January 1, 1930, the relator contending that his appointment and commission on March 5, 1926, for four years made the appointment of a successor on January 1, 1930, illegal.

Section 7, article 16, Constitution, provides that 'the Legislature shall not create any office, the term of which shall be longer than four years.' Unless otherwise duly provided where an office is created, the term begins when the office is first filled. In re Advisory Opinion to the Governor, 76 Fla. 649, 80 So. 519; In re Advisory Opinion to the Governor, 78 Fla. 5, 82 So. 612. The provision of section 14, article 16, that an officer shall continue in office after the expiration of his official term until a successor qualified, is intended to prevent a hiatus, State ex rel. v. Murphy (In re Com'rs of Duval County), 32 Fla. 138, 161, 13 So. 705; In re Advisory Opinion, 65 Fla. 434, 62 So. 363, 50 L. R. A. (N. S.) 365; 22 R. C. L. 550, and does not affect the cycle of the term fixed by law which ends at the expiration of the statutory term periodically whether the incumbent or another is the successor; otherwise the organic limitation as to terms may be violated by an officer holding over for a length of time after his term has expired and then being commissioned for a full term from the date of the commission and not from the end of the previous term as the Constitution contemplates. See State v. Young, 137 La. 102, 68 So. 241.

The rule announced in Re Tenure of Office of Circuit Judges, 16 Fla. 841, was changed by section 33 of article 5 of the Constitution of 1885. See State ex inf. v. Williams, 222 Mo. 268, 121 S.W. 64, 17 Ann. Cas. 1006; State ex rel. Withers v. Stonestreet, 99 Mo. 361, 12 S.W. 895.

The provision of section 14, article 16, Constitution, that 'all State, County and Municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified,' contemplates that while such an officer shall continue in office, or perform the official duties of the office after the expiration of his official term, and until his successor is duly qualified, still the office is vacant as to the new term, in the sense that any office is vacant which is not occupied by a person chosen to fill it for such term. "Vacancy' here means that the office is without such an occupant as precludes the filling of it in any mode which the constitution may provide, or may recognize as lawful.' State ex rel. v. Murphy (In re Com'rs of Duval County), 32 Fla. 138, 163, 13 So. 705, 712. See, also, State ex rel. Wilkinson v. Hingle, 124 La. 655, 50 So. 616.

Section 7 of article 4, Constitution, provides that 'when any office, from any cause, shall become vacant, and no mode is provided by this Constitution or by the laws of the State for filling such vacancy, the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term.'

When the four-year term beginning in July, 1921, expired in July, 1925, a new term then began, and for the purpose of making an executive appointment for the new term there was a vacancy in the office in July, 1925, though the occupant, by virtue of section 14, article 16, Constitution, continued in office until a successor was duly qualified. The executive appointment to fill the vacancy caused by the expiration of the term was not made until March 5, 1926, which was more than seven months after the new term began, and section 7, article 4, Constitution, authorized the Governor 'to fill such vacancy' caused by the expiration of the former term 'by granting a commission for the unexpired term' which began in July, 1925, and ended in July, 1929. This is the necessary result of the operation of section 14 of article 16 and section 7 of article 4 of the Constitution upon the statute under which the relator was appointed to the office.

The relator's term of office under the law expired in July, 1929, and the office was vacant for the purpose of an executive appointment of a successor to the incumbent. The holding over of the incumbent under section 14, article 16, of the Constitution into the succeeding term was subject to the executive power to 'fill such vacancy by granting a commission for the unexpired term' ending July 19, 1933. The commission issued was legal and served to terminate the right of the relator to hold the office under section 14, article 16, of the Constitution. The fact that the commission issued to the relator on March 5, 1926, was for four years from that date, does not control as against the law. Opinion No. Justices, 14 Fla. 277; Advisory Opinion to Governor, 31 Fla. 1, 12 So. 114, 18 L. R. A. 594.

Affirmed.

BROWN, J. and HUTCHISON and JOHNSON, Circuit Judges, concur.

BUFORD C.J., and ELLIS, J., dissent.

TERRELL and DAVIS, JJ., disqualified.

DISSENTING

BUFORD, C.J. (dissenting).

'The statement of the facts in this case, as correctly stated by the circuit judge in his findings, were as follows: The relator, T. R. Hodges, claimed to have been lawfully entitled to and held the office of state shell fish commissioner from March 5, 1926, to March 5, 1930, under and by...

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