
    In Re: Advisory Opinion to Governor.
    162 So. 346.
    Opinion Filed June 19, 1935.
   State of Florida. Executive Department.

June 11, 1935.

To the Hon. Chief Justice and Justices of the Supreme Court of the State of Florida.

Gentlemen :

Pursuant to Section 13 of Article IV of the Constitution of Florida, I have the honor to request your opinion upon a question affecting my constitutional duties and powers involving the appointment of circuit judges.

By Chapter 10068, Laws of Florida, 1925, an additional judge was provided for the First Judicial Circuit of Florida. The first appointment under this Act was on November 23rd, 1925. The term of the present incumbent of that office will expire by limitation on November 23rd, 1937.

Senate Bill No. 4 of the 1935 Legislature provides for the appointment of two judges of the First Judicial Circuit, and Honorable A. G. Campbell, the judge of the First Judicial Circuit, as distinguished from the additional judge of that Circuit, was appointed, and confirmed by the Senate on May 30th, 1935, for a term of six years, as such to be and act as the constitutional judge of the First Judicial Circuit.

Honorable L. L. Fabisinski is the incumbent holding for the term expiring November 23rd, 1937, as additional judge of the First Judicial Circuit under the provisions of Chapter 10068, Laws of Florida, 1925.

On May 31st, 1935, Judge Fabisinski resigned that term for the purpose of accepting an appointment under the provisions of Senate Bill No. 4, effective on the day which will be the 60th day after the effective day of the reorganization contemplated by Senate Bill No. 4; and on the same day was appointed by me, and confirmed by the Senate, for an additional term.

By the terms of Senate Bill No. 4, all appointments under that Act are to take effect sixty days from the day the bill became a law; and the question now arises whether the office of additional judge of the First Judicial Circuit of Florida should be filled by appointment for a term of six years from August 2nd, 1935, which date is assumed as a day sixty days after the bill became a law, or whether it should be filled by appointment for a term expiring November 23rd, 1937, consequent upon the first appointment under Chapter 10068, Laws of Florida, 1925, having been made on November 23rd, 1925.

Your opinion upon this question is requested so that the commission of Judge Fabisinski, when issued, shall be in due and proper form.

Respectfully submitted,

David Sholtz, Governor.

DS-Sm

Supreme Court of Florida.

Tallahassee, Florida.

June 19, 1935.

To His Excellency, David Sholtz, Governor of Florida. Sir:

Your request dated June 11, 1935, for an advisory opinion under .Section 13, Article IV, of the Constitution, has been duly considered by the Justices, the letter being as follows:

“State of Florida.

“Executive Department.

“Tallahassee,. June 11, 1935.

“To the Honorable Chief Justice and Justices of the Supreme Court of the State of Florida.

“Gentlemen:

“Pursuant to Section 13 of Article IV of the Constitution of Florida, I have the honor to request your opinion upon a question affecting my constitutional duties and powers involving the appointment of circuit judge.

“By Chapter 10068, Laws of Florida, 1925, an additional judge was provided for the First Judicial Circuit of Florida. The first appointment under this Act was on November 23rd, 1925. The term of the present incumbent of that office will expire by limitation on November 23rd-, 1937.

“Senate Bill No. 4 of the 1935 Legislature provides for the appointment of two judges of the First Judicial Circuit, and Honorable A. G. Campbell, the judge of the First Judicial Circuit, as distinguished from the additional judge of that Circuit, was appointed, and confirmed by the Senate on May 30th, 1935, for a term of six years, as such to be and act as the constitutional judge of the First Judicial Circuit.

“Honorable L. L. Fabisinski is the incumbent holding for the term expiring November 23rd, 1937, as additional judge of the First Judicial Circuit, under the provisions of Chapter 10068, Laws of Florida, 1925.

“On May 31st, 1935, Judge Fabisinski resigned that term for the purpose of accepting an appointment under the provisions of- Senate Bill No. 4, effective on the day which will be the 60th day after the effective day of the reorganization contemplated by Senate Bill No. 4; and on the same day was appointed by me, and confirmed by the Senate, for an additional term.

“By the terms of Senate Bill No. 4, all appointments under that Act are to take effect sixty days from the day the hill became a law; and the question now arises whether the office of additional judge of the First Judicial Circuit of Florida should be filled .by appointment for a term of six years from August 2nd, 1935, which date is assumed as a day sixty daj^s after the bill became a law, or whether it should be filled by appointment for a term expiring November 23rd, 1937, consequent upon the first appointment under Chapter 10068, Laws of Florida, 1925, having been made on November 23rd, 1925.

“Your opinion upon this question is requested so that the commission of Judge Fabisinski, when issued,- shall be in due and proper form.

“Respectively submitted,

(Signed) David Sholtz, “Governor.”

Section 45, Article Y, Constitution, adopted in 1934, is as follows:

“(a) There shall be no more than fifteen judicial circuits of the State of Florida to be appropriately designated, numbered and defined by a suitable law enacted by the Legislature for that purpose in accordance with the amendment; Provided that no judicial circuit as defined by law hereunder shall embrace less than fifty thousand inhabitants according to the last preceding State or Federal census; and provided further that no judicial circuit existing at the time of the ratification of this amendment shall be affected, altered, or abolished, except in the manner provided in this amendment for carrying the same into execution, nor shall any existing Circuit Judge or State Attorney be disturbed in the tenure of his office until the expiration of any commission held by him on the date this amendment is ratified.

“(b) It shall be the duty of the Legislature at its next regular session after the amendment shall have been ratified to pass suitable laws to carry this amendment into effect, and to make effective the reapportionment and reduction of judicial circuits and Circuit Judges hereby contemplated.

“(c) There shall be one Circuit Judge to each Judicial Circuit, but additional Circuit Judges for Judicial Circuit may be provided for by law as authorized by Section 43 of Amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any one Judicial Circuit shall not exceed one Circuit Judge for every fifty thousand inhabitants, or major fraction thereof, after this amendment shall have been put into effect.

“(d) In Circuits having more than one Judge the Legislature may designate the place of residence of any such additional Judge or Judges.

“(e) The reapportionment of Circuits and Judges thereof hereby provided for shall become effective sixty days- after the Act providing for same shall have become a law.”

Senate Bill No. 4, enacted by the Legislature pursuant to Section 45, Article V, Constitution, and approved by the Governor May 31, 1935, is entitled:

“An Act Redistricting the State of Florida into Judicial Circuits, and providing for the appointment of Circuit Judges, and repealing existing laws in conflict with the provisions of this Act.”

It provides for Fifteen Judicial Circuits with at least two Circuit Judges in each Circuit, and also contains Sections 3 and 6 hereinafter quoted. The First Circuit “shall have two Circuit Judges.” Sec. 1, Senate Bill No. 4.

The organic section provides that no Judicial Circuit “shall embrace less than fifty thousand inhabitants according to the last preceding State or Federal census,” and that “there shall be one Circuit Judge to each Judicial Circuit, but additional Circuit Judges for Judicial Circuit may be provided for by law as authorized by Section 43 of Amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any one Judicial Circuit shall not exceed one Circuit Judge for every fifty thousand inhabitants, or major fraction thereof.” “The reapportionment of Circuits and Judges thereof hereby provided for shall become effective sixty days after the Act providing for same shall have become a law.” Sec. 45, Article V, Constitution, adopted November 6, 1934.

Senate Bill No. 4 contains the following:

“Section 3. The Circuit Judges holding office at the time of the ratification at the general election of 1934 of the amendment to Section 45 of Article V of the Florida Constitution, shall severally continue in office and exercise jurisdiction until their then existing term or terms of office as Judge or Judges of the Circuits, respectively, in which the county of their resident may be included.”

“Section 6. This Act and all appointments under this Act shall take effect sixty days after the same becomes a law, as provided under the said Amendment of Section 45 of Article V, Constitution of Florida; Provided that no Circuit Judge shall be appointed to any vacancy or to any term of office except as authorized under the provisions of said Section 45 of Article V of the Constitution and this Act.”

The Constitution contains the following:

“There shall be eight Circuit Judges, who shall be appointed by the Governor and confirmed by the Senate, and who shall hold their office for six years.” Sec. 8, Art. V.

“The Legislature may provide for the creation and establishment of such additional Judicial Circuits as may from time to time become necessary, and for the appointment by the Governor and confirmation by the Senate of additional Circuit Judges therefor, whose terms of office and general jurisdiction shall be the same as is herein provided for the Circuit Judges, herein already provided for.” Sec. 35, Art. V, adopted November, 1910. .

“The Legislature may * * * provide for the appointment of one or more additional Circuit Judges * * *. Each of such additional Circuit Judges shall be appointed by the Governor and confirmed by the Senate, and hold office for six years.”

Sec. 43, Art. V, adopted November, 1922.

“All State, County and Municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified.” Sec. 14, Art. XVI.-

“When the office of any Judge shall become vacant from any cause, the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the Judge whose death, resignation, retirement, or other cause created such vacancy.” Sec. 33, Art. V.

The Statutes provide:

That vacancies in offices may be filled by appointments by the Governor, and that “in cases requiring the confirmation or advice and consent of the Senate, the person so appointed may hold until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed and consented to by the Senate.” Sec. 464 (399) C. G. L. See Sec. 7, Art. IV, Constitution; Advisory Opinion, 14 Fla. 277; Simonton v. State, ex rel., 44 Fla. 289, 31 So. 821; Advisory Opinion, 93 Fla. 1024, 113 So. 115; State, ex rel., v. Collins, 101 Fla. 371, 134 So. 595.

“Every office shall be deemed vacant in the following cases r

“* * * Second. * * * By resignation. * * * Sixth. When any office created or continued by the Constitution or laws shall not have been-filled by election or appointment under the Constitution or law creating or continuing such office.” Sec. 461 (396) C. G. L.

; Section 45, Article V, Constitution, considered with other applicable provisions, clearly contemplates that the duly authorized number of Circuit Judges for the respective fifteen Judicial Circuits provided for under such organic section shall be appointed by the Governor and confirmed by the Senate; that their respective terms of office, when so appointed and confirmed, shall be six .years; and that such terms shall begin “sixty days after the Act providing for” such fifteen Judicial Circuits “and Judges thereof” “shall have become a law.” The Act, Senate Bill No. 4, became a law upon its due enactment and approval by the Governor, May 31, 1935. The sixtieth day after May 31, 1935, is July 30, 1935. Consequently where a Circuit Judge was during the legislative session of 1935 duly appointed by the Governor and confirmed by the Senate under Section 45, Article V, Constitution, and Senate Bill No. 4, such appointment and confirmation are under the law for a term of six years beginning July 30, 1935.

In Section 45, Article V, Constitution, adopted November 6, 1934, it is provided that “no judicial circuit existing at the time of the ratification of this amendment shall be affected, altered, or abolished except in the manner provided in this amendment for carrying the same into execution, nor shall any, existing Circuit Judge or State Attorney be disturbed in the tenure of his office until the expiration of any commission held by him on the date this amendment is ratified.”

Section 3 of Senate Bill No. 4 provides that “The Circuit Judges holding office at the time of the ratification at the general election of 1934 of the amendment to Section 45 of Article V of the Florida Constitution shall severally continue in office and exercise jurisdiction until their then existing term or terms of office as Judge or Judges of the Circuits, respectively, in which .the county of their residence may be included.”

The obvious intent 'of Section 45, Article V, and of Section 3 of Senate Bill No. 4, is that Circuit Judges holding commissions as such on November 6, 1934, who are not given new commissions as Circuit Judges under Section 45, Article V, “shall severally continue in office and exercise jurisdiction until (the expiration of) their then existing term or terms of office as Judge or Judges of the Circuits, respectively, in which the county of their resident may be included.” Under Section 14, Article XVI, Constitution, Circuit Judges having commissions “shall continue in office after the expiration of their official terms until their ' successors are duly qualified” unless their offices are duly discontinued under Section 45, Article V, adopted in 1934.

As you state that Hon. L. L. Fabisinski has resigned the commission as Circuit Judge held by him on November 6, 1934, it is not necessary to further discuss the effect of the organic and statutory provisions last above quoted.

In consideration of the above, the conclusion is that Hon. A. G. Campbell was properly appointed and confirmed under Section 45, Article V, Constitution, and Senate Bill No. 4, for a term of six years to succeed himself as Judge of the First Judicial Circuit of Florida; and as Hon. L. L. Fabisinski resigned his former commission and was appointed by the Governor and confirmed by the Senate under Section 45, Article V, Constitution, and Senate Bill No. 4, as additional Judge of the First Judicial Circuit of Florida, he should be commissioned for a term of six years, such term to begin July 30, 1935, which is “sixty days after” Senate Bill No. 4 “became a law” by the approval of the Governor after its enactment by the Legislature. Sec. 45, Art. V, Constitution; Sec. 6, Senate Bill No. 4, approved May 31,1935.

Very respectfully,

J. B. Whitfield,

W. 'H.‘ Ellis,

Glenn Terrell,

Rivers Buford;

Fred H. Davis,

Jtistices Supreme Court.  