
    ADVISORY OPINION TO GOVERNOR
    12 So. (2nd) 879
    January Term, 1943
    March 31, 1943
    En Banc
   PER CURIAM:

Supreme Court of Florida

Rivers Buford, Chief Justice

Tallahassee

March 31, 1943

Division A

Justices

Glenn Terrell

R. H. Chapman

Alto Adams

Guyte P. McCord,

Clerk

Division B

Justices

Armstead Brown

Elwyn Thomas

Harold L. Sebring

R. S. Williams,

Marshal

Honorable Spessard L. Holland

Governor of Florida

Tallahassee, Florida

Dear Sir:

This advisory opinion is written in response to your request under date of March 29, 1943, reading as follows:

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

“Gentlemen:

“Under authority of Chapters 20718 and 20763, Acts of 1941, as interpreted by the members of this Court in Advisory Opinions of recent date, I have granted military leave of absence to certain State Attorneys and County Solicitors whose permanent appointments required confirmation of the Senate and who were regularly appointed and confirmed by the Senate for a definite and fixed term of office extending beyond the end of the next ensuing regular session of the Senate. In each such case I have appointed a person to act in the place and stead of such official on leave, to perform the functions of the office during the period of the military service of the regular incumbent.

“Being somewhat in doubt as to my executive powers and duties in the premises, I have the honor, under Section 13 of Article IV of the Constitution of this State, to request your written opinion as to whether or not the appointments of such acting officials require confirmation by the Senate, thus making it incumbent upon -me to submit the names of such appointees, or the names of other persons of my choice, for such confirmation.

Very respectfully,

Spessard L. Holland”

ALH:ed

Our opinion is that neither the Constitution nor the statutes of Florida require you to submit to the Senate the appointments made by you of the acting officials referred to in the above letter. The purpose of the statutes (Acts of 1941, Chapters 20718, 20863), providing that the classes of officials therein named may be granted leaves of absence from their duties to perform military services in the armed forces of the United States, was to secure to such officials their tenure of office for the entire term of their respective offices as fixed by law. Such absences on leave for the performance of military services does not create a vacancy in office, as the absent officer’s term of office is preserved, and the appointment by you of persons to act in the place and stead of such officials on leave does not require any confirmation by the Senate. This is the logical conclusion to be arrived at from a consideration of the provisions of our Constitution and the reasoning contained in our recent Advisory Opinions appearing in 8 So. (2nd) 26 and 9 So. (2nd) 172, but not yet reported in the official. Florida Reports.

Respectfully yours,

RIVERS BUFORD

Chief Justice

GLENN TERRELL

ARMSTEAD BROWN

R. H. CHAPMAN

ELWYN THOMAS

ALTO ADAMS

HAROLD L. SEBRING

Justices.  