State Ex Rel. Simmons v. Lee , 119 Fla. 745 ( 1935 )

Buford, J.

(dissenting). — I find myself unable to agree with the majority opinion in this case. My dissent is based upon two grounds. The first is', I think that the Constitution contemplated that the salaries and duties of all Circuit Judges should be uniform. The Constitution contemplates the exchange of circuits between Circuit Judges when directed by the Governor. The Circuit Judge in the smallest circuit of the State is subject to be called at any time to serve for such period of time as the Governor may designate in the largest circuit of the State. Cases pending in the largest county in the State may be transferred for disposition to a smaller county.

Section 43, Article V of the Constitution which was adopted at the general election in 1922 amongst other things provides:

“The Legislature may from time to time and as the business of any circuit requires, provide for the appointment of one or more additional Circuit Judges for such circuit. Each such additional Circuit Judge shall be appointed by the Governor and confirmed by the Senate, and hold office for six years, and shall receive the same salary and allowance for expenses as' other Circuit Judges. He shall have all the powers and perform all the duties that are or may be provided or prescribed by the Constitution or by statute for Circuit 'Judges, and all statutes concerning1 Circuit Judges shall apply to him.”

Every Circuit Judge is subject to call to aid the Supreme Court. Therefore, by the Constitution provision has been made for the equalization of the work falling upon Judges of the Circuit Courts.

For these reasons, I consider what is known as Senate Bill No. 517, Acts 1921, invalid because there appears to be no reasonable basis for the classification attempted to be made therein.

If the Legislature may' fix a salary for Circuit Judges in circuits in which there is a county having more than 100,000 population at a higher figure than the salary of Circuit Judges in circuits which do npt include a county having as much as 100,000 population, then by the same token the Legislature may fix the salaries' of Circuit Judges in circuits not embracing a county of more than 100,000 population but having a greater total population than that circuit which does embrace one county having more than 100,000 population, at a less amount than is authorized to be paid the judges in such smaller populated circuit.

If reasonable basis could be found for fixing the salary of Circuit Judges on a population classification, certainly the population of the circuit should be the basis of the classification and not the population of a county within the circuit. But, I do not concede that even that sort of a classification would be valid as a basis for salaries of Circuit Judges.

If Senate Bill 517, Acts of 1921, is to be held valid, it must be upon, the thory that it is a general law and if it is a general law it was repealed by Chapter 15859, Acts of 1933, and, therefore, the Comptroller properly declined to approve the transfer of funds for the payment of the additional salary provided by Senate Bill No. 517.

Ellis, J., concurs. •