State v. Giblin

• Decision Date: 30 October 1929
• Citation: 98 Fla. 802,124 So. 375
• Parties: STATE ex rel. DAVIS, Atty. Gen. v. GIBLIN.
• Court: Florida Supreme Court

124 So. 375

98 Fla. 802

STATE ex rel. DAVIS, Atty. Gen. v. GIBLIN.

Florida Supreme Court

October 30, 1929

En Banc.

Quo warranto proceeding by the State, on the relation of Fred H Davis, Attorney General, against Vincent C. Giblin. On respondent's demurrer to, and motion to quash, the information, and relator's motion for judgment of ouster against respondent.

Demurrer overruled, and motions denied.

Syllabus by the Court

SYLLABUS

Demurrer to quo warranto information overruled, and motions to quash and render judgment of ouster denied, because of equal division of opinion.

Demurrer to information in quo warranto proceeding overruled, and motions to quash information and render judgment of ouster against respondent denied, because of equal division of opinion as to disposition of such pleadings.

COUNSEL

Fred H Davis, Atty. Gen., McCune, Hiaasen & Fleming, C. N. McCune C. A. Hiaasen, and T. F. Fleming, all of Ft. Lauderdale, Walsh, Beckham, Farley & Ellis, of Miami, Howard Dresbach, Thomas E. Swanson, and Rogers & Morris, all of Ft. Lauderdale, and Price, Price, Kehoe & Kassewitz, of Miami, for relator.

Baxter, Byrd & Walton, of Ft. Lauderdale, John C. Cooper, Jr., of Jacksonville, and James M. Carson and John P. Stokes, both of Miami, for respondent.

W. T. Hendry, of Perry, and James T. Vocelle and Chas. A. Mitchell, both of Vero Beach, amici curiae.

OPINION

PER CURIAM.

This cause having heretofore been submitted to the court upon the demurrer of the respondent to the information, upon the motion of the respondent to quash the information, and upon the motion of the relator for a judgment of ouster against the respondent notwithstanding the return or answer filed by the respondent, and the pleadings having been duly considered by the court upon briefs and argument of counsel for the respective parties, and the court being equally divided in opinion as to the disposition to be made of the said pleadings, Mr. Chief Justice TERRELL, Mr. Justice ELLIS, and Mr. Justice BUFORD being of opinion that the demurrer to the information should be sustained, the information quashed and the motion for judgment of ouster denied, while Mr. Justice WHITFIELD, Mr. Justice STRUM, and Mr. Justice BROWN are of opinion that the demurrer should be overruled, the motion to quash the information denied and the motion of the relator for a judgment of ouster be granted, as is indicated by the opinions this day filed in the cause, it is thereupon considered, ordered, and adjudged by the court that the said demurrer of the respondent be, and the same is hereby, overruled, that the motion to quash the information be, and the same is hereby, denied, and that the motion for a judgment of ouster herein be, and the same is hereby, denied.

TERRELL, C.J., and WHITFIELD, ELLIS, STRUM, BROWN, and BUFORD, JJ., concur.

CONCURRING

ELLIS J.

Information in the nature of quo warranto, signed by the Attorney General for the state, was filed in the court in June, 1929. By leave of court, an amendment was filed July 5, 1929. The information charges that Hon. Vincent C. Giblin has since the 21st day of June, 1929, used, exercised, enjoyed and performed without warrant or authority of law, and in violation of the Constitution of Florida, the franchise, functions, jurisdiction, and powers of circuit judge of the Twenty-Second judicial circuit of the state of Florida.

A specific instance was given in which the respondent on that date signed as judge of that circuit certain orders in a cause pending in chancery in that court, and it is alleged that he still claims the right and title to use, enjoy, exercise, and perform the franchise, functions, and powers of circuit judge of that circuit.

The court takes judicial knowledge of much which is alleged in the information, such as the act of the Legislature, chapter 12433, Acts of Florida, 1927, being 'an Act Defining and Fixing Territory and Boundaries of the Fifteenth Judicial Circuit; Creating the Twenty-second Judicial Circuit; Providing for a Circuit Judge and State's Attorney in the Twenty-second Judicial Circuit; and Providing and Fixing the Time for the Holding of Terms of the Circuit Court in the said Twenty-second Circuit; and Effect on Pending Litigation, and Making Appropriation for Payment of Salaries of Judge and State's Attorney'; the date of its approval by the Governor; the appointment by the Governor of the respondent to be judge of the circuit; his confirmation by the Senate; the issuing of the commission; the respondent qualifying under it and the exercise by him of the powers and performance of his duties as judge of that circuit. The court also takes judicial cognizance of the appointment by the Governor of the Honorable George W. Tedder to be judge of that circuit, the date and terms of the commission issued to him, and the confirmation of his appointment by the Senate. See State v. Bloxham, 42 Fla. 501, 28 So. 762; Perry v. Bush, 46 Fla. 242, 35 So. 225; State v. Philips, 64 Fla. 105, 59 So. 241; Brown v. Harley, 2 Fla. 159; Charlotte Harbor & N. R. Co. v. Welles, 78 Fla. 227, 82 So. 770; Amos v. Gunn, 84 Fla. 285, 94 So. 615; 7 Ency. of Ev. 947, 974, 978, 980; De La Rosa v. State (Tex Cr. App.) 21 S.W. 192; State v. Evans, 8 Humph. (Tenn.) 110.

When one assumes an office under the Constitution and laws of the state, he is required by the Constitution to take an oath that he will support, protect, and defend the Constitution and government of the United States and of the state of Florida, that he is qualified to hold office under the Constitution of the state, and that he will well and faithfully perform the duties of the office on which he is about to enter. Article 16, § 2, Constitution of Florida.

One's relation to an office which he enters, therefore, is not so much a matter of personal right to enjoy its privileges and emoluments, as a duty which he owes to the state to discharge the duties and exercise the powers with which the legal occupancy of the office vests him for and during the term of the office on which he enters. When an office is created by the Constitution or by the Legislature acting within its powers and the term of such office is fixed by the provisions of either the Constitution or the statute, it is not within the power of the Governor after appointment of a person to such office and his confirmation by the Senate, if that is the method prescribed for his selection, to shorten the term of office by any limitations in the commission issued to such appointee.

The Constitution of the state does not require the Governor to issue a commission to circuit judges appointed by him and confirmed by the Senate, nor does chapter 12433, supra, make any such requirement as to the person appointed and confirmed to be judge of the Twenty-Second circuit. No act of the Legislature makes any such requirement of the Governor except in cases where the officer is required to give bond. Indeed, it is doubtful if, under a Constitution containing the phraseology which ours contains in the matter of the selection of both Supreme Court justices and circuit judges, such a statute would be valid. Supreme Court justices are elected by the people, and are required to hold office for a term of six years. Their commissions are held directly of the people. Circuit court judges are appointed by the Governor and confirmed by the Senate, and are required to hold their office for six years. Their commissions are held under the concurring act of two powers of the government.

Where the issue of a commission is not made by law a necessary part of the election or appointment of a person to office, the appointment is complete when the choice of the appointing or electing power has been made. Even when under the law an appointment or election to office is not complete until the officer has been commissioned, the issue of the commission is in many circumstances regarded as a ministerial act which may be enforced by mandamus. See Hill v. State, 1 Ala. 559; State v. Towns, 8 Ga. 360; State v. Hodges, 107 Ark. 272, 154 S.W. 506; State v. Crawford, 28 Fla. 441, 10 So. 118, 14 L. R. A. 253.

While the appointment of an officer is usually evidenced by a commission, it is not essential as a general rule to the validity of the appointment that a commission issue. See Commonwealth v. Waller, 145 Pa. 235, 23 A. 382; Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60; Shuck v. State, 136 Ind. 63, 35 N.E. 993.

It would indeed be an anomalous situation if after an election to office by the people or selection by the concurrent action of two powers of the government the possession of the office should depend upon the will of a commissioning officer as to whether he would issue a commission for a part of the term of office, or for the entire term, or withhold it altogether and thus modify or defeat the election of the person to such office.

Mr. Chief Justice Marshall, speaking for the Supreme Court of the United States in Marbury v. Madison, supra, after discussing the distinction between the acts of appointing to office and commissioning the person appointed, said: 'It follows too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it.'

The respondent demurred to the information and later interposed a return and answer to the rule but reserving his right to insist upon the demurrer. The answer admits the matters of fact alleged in the petition, and avers that neither in his appointment by the Governor nor...