State ex rel. West v. Butler , 70 Fla. 102 ( 1915 )

Whitfield, J.,

(after stating the facts.) Quo warranto proceedings are brought in this court th determine whether the Honorable J. Turner Butler is lawfully Judge of the Twelfth Judicial Circuit to which office he was appointed under a statute set out in the statement which is alleged to have been enacted over the Governor’s veto.

It is contended that this statute is invalid because the bill having been vetoed by the Governor, one house of the Legislature voted to sustain the veto and then waived its rules by a two-thirds vote and reconsidered the vote sustaining the veto, after which under a waiver of the rules of the house by a two-thirds vote, the bill was, by :the requisite vote, passed notwithstanding the Governor’s ■obj ections thereto. The argument is that as the first vote ■sustained the veto, there was no power in the body to reconsider such vote and to pass the bill over the Governor’s veto.

The constitution provides that when a bill is returned to either house of the Legislature with the Governor’s objections thereto, the house “shall proceed to reconsider it; if, after such reconsideration, it shall pass both houses by a two-thirds vote of members present, which vote shall be entered on the Journal * * * , it shall become a law.”

Another section of the organic law provides that “each house shall * * * determine the rules of its proceedings.”

A right to reconsider action taken is an attribute of all deliberative bodies, and it is not forbidden to the Legislature by the constitution. When not otherwise provided by law all deliberative bodies have a right during the session to reconsider action taken as they deem proper, and it is the final result only that is to be regarded as the thing done. Crawford v. Gilchrist, 64 Fla. 41, 59 South. Rep. 963; Smith v. Jennings, 67 S. C. 324, 45 S. E. Rep. 821.

No provisión of the constitution appears to have been violated in reconsidering the vote by which the Governor’s veto was sustained and in subsequently passing the bill over the Governor’s veto by the requisite two-thirds vote under the circumstances alleged in this case.

The prima-y question presented is whether under the constitution the Legislature has the power to provide for more than one Circuit Judge to be appointed for one Judicial Circuit of the' State.

As pertinent to this enquiry the following sections of Article V of the Constitution should be considered:

“The judicial power of the State shall be vested in a Supreme Court, Circuit Courts, Court of Record of Escambia County, Criminal Courts, County Courts, County Judges and Justices of the Peace and such other courts or commissions as the Legislature may from time to time ordain and establish. The Legislature may prescribe the compensation of the Justices and Judges of the several courts, but no court heretofore established under the Constitution and laws of Florida shall be hereby abolished.” Sec. 1, Art. V as amended 1913-14.

“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.

The State shall be divided by the Legislature, at its first regular session after the adoption of this section, into eigfit Judicial Circuits, and one judge shall be assigned to each Circuit. Such judge shall hold at least two terms of his court in each county within his Circuit every year, and at such times and places as shall be prescribed by law, and may hold special terms.

The Governor may, in his discretion, order a temporary exchange of Circuits by the respective judges, or order any judge to hold one or more terms or part or parts «f any term in an)' other Circuit than that to which he is assigned. The judg'e shall reside in the Circuit of which he is judge.

This section shall not be operative until the Legislature shall have divided this State into eight Circuits, as hereinbefore provided for, and the seven Circuit Judges holding office at the time of such division shall continue to exercise jurisdiction over their several existing Circuits as constituted at the time of such division, until the judge of the additional Circuit shall have qualified. The Circuit Judges holding office at the time of such division shall severally continue in office until the expiration of their existing term of office as judges of the Circuits respectively in which, under such division, the county of his residence may be included; and a judge for the additional Circuit shall be appointed for a term equal to the unexpired term of the other Circuit Judges upon such division being made. The salary of each Circuit Judge shall be two thousand, seven hundred and fifty dollars.” Sec. 8, Art. V as amended in 1901-2.

“No courts other than herein specified shall be established in this State, except'that 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, and may clothe any Railroad Commission with judicial powers in all matters connected with the functions of their office.” Sec. 35, Art. V aá amended 1909-10.

The subjects and purposes of these sections are different. Section one designates the courts and commissions in which the judicial power of' the State is or may be vested. Section eight provides for a definite system of Circuit Courts consisting of a fixed member of Judicial Circuits and a fixed number of Circuit Judges, one judge to be assigned to each Circuit and to reside therein to exercise the jurisdiction conferred upon Circuit Courts and Circuit Judges by Section 11, Art. V. Section 35 forbids the establishment of other courts than those enumerated or provided for therein.

Questions of power, not of policy are to be considered, and any doubts as to its validity should be resolved in favor of a statute alleged to be unconstitutional. State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929.

Legislation creating judicial officers to exercise the powers of a co-ordinate department of the government should accord with organic law affecting that subject.

While the lawmaking power of the legislature is limited only by the express and clearly implied provisions of the Federal and State Constitutions, and while all fair intendments should be be indulged in favor of the constitutionality of a duly enacted statute, yet the provisions expressed and implied of the constitution are superior to legislative enactments, and the Constitution must prevail where a statute conflicts therewith; and where the terms of a statute plainly conflict with an applicable provision of the constitution, it is the duty of the court in proceedings 'where the matter is appropriately presented to “support, protect and defend the constitution,” by giving- effect to its provisions, even if in-doing so the statute is held to be inoperative. See Brown v. City of Lakeland, 61 Fla. 509, 54 South. Rep. 716; State ex rel. Loftin v. McMillan, 55 Fla. 254, 45 South. Rep. 882; State ex rel. Bours v. L’Engle, 40 Fla. 392, 24 South. Rep. 539; State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 South. Rep. 721; Board of Public Instruction for Santa Rosa County v. Croom, 57 Fla. 347, 48 South. Rep. 641; State ex rel. Willie v. Barnes, 22 Fla. 8; State ex rel. Chestnut v. King, 20 Fla. 399; State ex rel. Pleasure v. McClellan, 25 Fla. 88, 5 South. Rep. 600; Webster v. Powell, 36 Fla. 703, 18 South. Rep. 441. Express or implied provisions of the constitution cannot be altered, contracted or enlarged by legislative enactments. A legislative construction of an ambiguous or uncertain provision of organic law, may be persuasive; but constitutional provisions that are clear and explicit in terms or made so by the history of their adoption and by long continued application and recognition in governmental proceedings, cannot be given by legislation a meaning that conflicts with the terms of such clear and explicit provisions.

In construing and applying provisions of a constitution the leading purpose should be to ascertain and effectuate the intent and object designed to be accomplished. In determining- the meaning of words in a constitution they should be taken not separately, but in conjunction with other words, and considered in the light of the purpose of the lawmakers as shown by the provisions as an entirety. When words may import 'different meanings they should have the meaning and effect designed to be given them as appears by a fair consideration of the whole context in view of the object intended to be accomplished. See Mugge v. Warnell Lumber & Veneer Co., 58 Fla. 318, 50 South. Rep. 645; Ex parte Cox, 44 Fla. 537, 33 South. Rep. 509; Jackson v. State, 33 Fla. 620, 15 South. Rep. 250. Every word of a State constitution should be given its intended meaning and effect, and essential provisions of a constitution are to be reg'arded as being mandatory. Crawford v. Gilchrist, 64 Fla. 41, 59 South Rep. 963.

Where numerals are used to indicate a definite number in express provisions, as one Judge, or three Justices, or five County Commissioners, or a tax of one mill, the number expressed should be regarded as a limitation excluding other and different numbers unless the entire context clearly shows a different intent.

The substance of the above quoted organic provisions is that “The judicial power of the State shall be vested in a Supreme Court, Circuit Courts * * and such other courts or commissions as the legislature may from time to time ordain and establish.” “There shall be eig'ht Circuit Judges.” “The State shall be divided * into eight Judicial Circuits, and one judge shall be assigned to each Circuit.” “The judge shall reside in the Circuit of which he is judge.” “No courts other than herein specified shall be established in this State except that 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 Judg'es therefor.”

If the provisions that “there shall be eight Circuit Judges” and that “the State shall be divided * • into eight Judicial Circuits, and one judge shall be assigned to each Circuit,” are a limitation upon the number of Circuit Judges that may be appointed by the Governor and confirmed by the Senate for any Judicial Circuit of the State, then the limitation remains until it is removed by a constitutional amendment. Such ah amendment may be express in terms or implied from language that is clearly repugnant to the provisions imposing the limitation. See Board of Public Instruction of Polk County v. Board of Com’rs of Polk County, 58 Fla. 391, 50 South. Rep. 574.

Does Section 8 of Article V as amended in 1901-2, limit the number of Circuit Judges to one for each Circuit ?

As was said in State ex rel. v. Jacksonville Terminal Co., 41 Fla. 377, text 401, 27 South. Rep. 225, “In construing constitutions as well as statutes the object is to ascertain the ti*ue intention or meaning expressed in the instrument. Where the language is plain and unambiguous, there is nothing to construe — the meaning conveyed by plain and unambiguous language must not be changed or distorted by the application of any technical rule of construction. There does not appear to be any ambiguity in the language used in this section.”

As it is specifically provided by Section 8 that there shall be eight Judicial Circuits and eight Circuit Judges, one judge to be assigned to each Circuit, there is no escape from the demonstration that under such section there shall be one and only one Circuit Judge for each Judicial Circuit.

The provision of Section 8 that there shall be “one judge” for each Judicial Circuit is as much a limitation upon the number that may be provided as are the organic provisions for “one judge for each” Criminal Court of Record or “one justice of the peace for each” district, or “a county commissioner” for each district, or a special tax of “one mill” for public free schools, or the former provisions that “the salary of the Justices of the Supreme Court shall be three thousand dollars a year,” and that “the salary of each Circuit Judge shall be two thousand, seven hundred and fifty dollars” and that “there shall'be eight Circuit Judges” and “eight Judicial Circuits” which last three provisions are contained in the same amended Section 8; and the limitations contained in the last three provisions required constitutional amendments to remove them. See State ex rel. Russell v. Barnes, 25 Fla. 75, 5 South. Rep. 698.

The Constitution of 1839 provided in Section 5 of Article V that “the State shall be divided into at least four convenient Circuits, * * * and for each Circuit there shall be appointed a judge.” A constitutional amendment to Section 11 of Article V in 1853 provided that “there shall, be elected by the qualified electors of each of the respective Judicial Circuits of this State, one Judge of the Circuit Court.” The Constitution of 1865 provided in Section 4 of Article V that “the State shall be divided into convenient Circuits; and for each Circuit there shall be a judge,” and also provided in Section 11 of Article V that “there shall be elected * * * by the qualified electors of each of the respective Judicial Circuits of this State, one judge of the Circuit Court.” In each of these two organic instruments the words “a judge” as used in one section was in another section shown- to mean “one judge.” When “one” and “a” are used'interchangeably, “a” must mean “one,” and one is a limitation.

The Constitution of 1868 provides in Section 7 of ArticleVI that “There shall be seven Circuit Judges. * * * The State shall be divided into seven Judicial Circuits * * * and one judge shall be assigned to each Circuit.” The original Section 8 of Article V of the Constitution of 1885 now hi force, provides that “There shall be seven Circuit Judges * * * . The State shall be divided into seven Judicial Circuits, and one Judge shall be assigned to each Circuit.”

When the provisions of the Constitutions of 1839 and 1865 are considered, the express provision in the constitutions of 1868 and 1885 for a stated number of Judicial Circuits and also a stated similar number of Circuit Judges and for “one judge” for each Circuit, and there-being no exception or inconsistent provision on the subject, is significant of an intended express and definite limitation as to the number of Circuit Judges for any Judicial Circuit. The fact that a court may consist of more than one judge would prompt the provision for “one-judge” as a limitation of the number to be provided for each Circuit. We have found no adjudication that a provision for “one judge” for a court is not a limitation but means “at least one judge.”

In Streeter v. McLane, 19 Idaho 229, 112 Pac. Rep. 1042, the constitution provided for “five Judicial Circuits, for eachof which a judge shall be chosen * * * but the legislature may reduce or increase the number of districts, district judg-es, and district attorneys.” It was held that the legislature could provide for more than one judge in-a district since there was no fixing of the number of judges, and the provision that “for each.of which (districts) a judge shall be chosen” was supplemented by an express provision that the legislature may increase the mimber of district judges.

The case of State ex rel. Breeden v. Lewis, 26 Utah 120, 72 Pac. Rep. 388, is similarly disposed of. In State v. Stevenson, 18 Neb. 416, 25 N. W. Rep. 585, the legislature was expressly authorized to “increase the number of judges of the district courts and the judicial districts of the State.” In State v. Kinkead, 14 Nev. 117, the first judicial district of the State was given three district judges and the legislature was authorized to- increase or diminish “the number of the judicial districts and! judges therein,” it was held that the legislature could reduce the number of district judges after the first election. See also State v. Atherton, 19 Nev, 332, 10 Pac. Rep. 901; Groff, In re, 21 Neb. 647, 33 N. W. Rep. 426. These and other kindred cases with organic provisions materially different from ours, are not authority 'for the proposition that more than one Circuit Judge may be provided for a Judicial Circuit of this State. See State v. Martin, 60 Ark. 343, 30 S. W. Rep. 421, where it was said that a numerical designation of “one judge” would be a limitation while the provision for “a judge” would under the provisions of that organic law permit the legislature to provide for more than one judge for a Judicial Circuit. In this case the court said: “Nowhere do we find any limitation upon the number of Circuit Judg-es for a Circuit.” For a like decision see State v. Hutchings, 79 Kan. 191, 98 Pac. Rep. 797.

In Barber v. State, 13 Fla. 675, it was held that under a constitutional provision each Circuit Judge “shall hold two terms of his court in each county within his Circuit each year,” the judge could, under a pre-existing statute, hold extra or special terms in addition to the two terms mentioned in the constitution, since the later organic provision was not repugnant to the existing statute, and 'showed no intent to limit the power of the legislature to authorize extra or special terms. This case is not authority for the proposition that Section 8 in providing for “one judge” in each circuit, “at least one judge” was meant. Rarticulai'ly is this so when amended Section 8 also specifically ordains that there shall be eight judicial circuits .and eight circuit judges. It is clear that Section 8 of Article V imposed a limitation of one judge for each judicial circuit. This provision remains á potential limitation upon the power of the legislature until duly repealed, amended or modified by constitutional amendment adopted in accord with organic law. How far does Sec-. tion 35 as amended modify Section 8 as amended?

Section 8 as amended in 1901-2 relates to the creation of judicial circuits and the appointment of one judge for each judicial circuit and makes other incidental provisions therein, while Section 35' as amended in 1909-10 provides “that no courts other than herein specified shall be established in this State, except that the legislature may provide for * * * additional judicial circuits * * * and for * * additional circuit judges therefor.” This latter section relates to< courts that may be established, and the provision as to circuit judges is an appropriate accompaniment to the provision for additional judicial circuits. “Judicial circuits” refer to subdivisions of the State to each of which “one judge” shall be assigned to exercise therein the judicial power conferred by the constitution upon circuit courts.

Implied repeals, amendments and modifications of organic provisions occur only when the provisions as adopted are positively and irreconcilably repugnant to each other, and then only to the extent of the repugnancy. See State v. Gadsden County, 63 Fla. 620, 58 South. Rep. 232; Florida East Coast R. Co. v. Hazel, 43 Fla. 263, 31 South. Rep. 272; State ex rel. Gonzalez v. Palmes, 23 Fla. 620, 3 South. Rep. 171; State ex rel. Loftin v. McMillan, 55 Fla. 254, 45 South. Rep. 881.

Distinct provisions of the constitution are repugnant to each other only when they relate to^ the same subject, are adopted for the same purpose and cannot be enforced without material and substantial conflict. See Cooley’s Const. Lim. (7th Ed.) page 92; People v. Burtleson, 14 Utah 258, 47 Pac. Rep. 87.

While the terms of an organic provision will not be strained to imply a, limitation upon the lawmaking power of the legislature, yet where express and definite limitations are imposed by a separate section of 'the organic law, amendments of other sections -of the- constitution will' not be construed to remove such fixed limitations further than the terms of the amendment fairly require. Amended Section 35 does not revise amended Section 8, as was the case in Advisory 'Opinion, 15 Fla. 739.

To give authority to “provide for the creation and establishment of * * * additional judicial circuits” is the prime object of section 35 as amended, and the words “and for * * additional circuit judges therefor” obviously have reference to thé preceding words “additional judicial circuits.” The plural words “additional circuit judges!’ are manifestly used as the legal'and grammatical accompaniment of the antecedent and controlling plural words .“additional judicial circuits.” The “judicial circuits” are subdivisions within which a circuit judg’e presides over a circuit court.

The amendments to Article V of the constitution have been specific and somewhat restrictive. Npt one of them purports to change the provision that the-State shall be divided into judicial circuits, “and one judge shall be assigned to each circuit.” Section 35 as amended does not revise Section 8, but recognizes the requirement of amended Section 8 that the State shall.be divided into judicial circuits with one judge for each circuit, the provision for “additional circuit judges” being made in view of the purpose to have a judge for each new division of territory into a judicial circuit and in view of the requirement of Section 8 that “there shall be eight circuit judges.” The “additional” circuits and “additional” judges authorized by amended Section 35 are a larger number of the circuits and a corresponding number of the Circuit Judges so that there shall be one judge for each circuit as is expressly and definitely provided for by amended Section 8.

When more tribunals were needed for the dispatch of the judicial business of the State, the amendments to Sections x, 8 and 35 of Article V of the Constitution designed to provide for such tribunals, provided for additional courts, not for additional judges. Comparative advantages of additional judges rather than additional courts, cannot cause a change in the constitution or in its settled construction.

It is argued that in amending Section 35 instead of Section 8, and in using the words “and * * * additional Circuit Judges therefor,” an intent is shown to- remove the limitation of Section 8 as to the number of Circuit Judges that may be provided for each Judicial Circuit as well as to remove the limitation as to the number of Judicial Circuits that may be established. But this is untenable, since the two sections relate to different subjects, and there is no express repeal or amendment or revision of Section 8, but only an implied modification of such provisions of Section 8 as are in positive repugnance to Section 35 as amended. The quoted language is prudently used if it is not necessary to avoid uncertainties that might otherwise have arisen from the necessity to have one judge for each new subdivision of the State into a Judicial Circuit, and from the limitation in Section 8 that “there shall be eight Circuit Judgesand such words “additional Circuit Judges therefor,” are appropriate to show an intent on the part of the Legislature and the electors at the polls to provide for .additional Circuit Judges so that there shall be one judge for each of the “additional Judicial Circuits” that may be established under amended Section 35. Words or terms used in a constitution which is dependent upon a ratification by the people, must be interpreted in a sense most obvious to the common understanding at the time of its adoption. Bishop v. State ex rel. Griner, 149 Ind. 223, 48 N. E. Rep. 1038. This construction is consistent with Section 8 and should be adopted that both may stand, the provisions not being repugnant. Chance v. County of Marion, 64 Ill. 66.

The terms, the history and the governmental application of our constitution establish a system of Circuit Courts with one Judge for each Circuit, and the amendments adopted clearly show an intent to continue and extend the established system by increasing-the number of Judicial Circuits with one Judge for each Circuit, as was done pursuant to amended Section 35, by Chapter 6197, Acts of 1911,..which in effect-created three additional Judicial Circuits with one Judge for each Circuit. Chapter 6197 is a contemporaneous legislative construction of the meaning of amended Section 35. This being- the supreme law of the land on the subject, the legislature and the courts have no power to change or vary the paramount law to meet conditions in a particular section of the State, however desirable a change there of such system may be. The constitution makes provision for its amendment; and the amendments made disclose no- intent to depart from the system of Circuit Courts originally established. This system expressly provides for “one judge” in each Circuit, and the only instance in which more than one Circuit. Judge in any Judicial Circuit has been authorized, was by constitutional amendment in 1911-12, now Section 42 of Article V, which does not change the original system, but makes a special and exceptional provision for a Circuit Judge for Duval County to meet new and peculiar conditions in a particular county. This constitutional amendment, as its terms plainly indicate, is a construction by the legislature and by the electorate at the polls that under amended Section 35 only one Circuit Judge may be provided by the legislature for any one Circuit. The construction of Section 35 more nearly contemporaneous with its adoption is preferred if there be ambiguity or doubt as to its meaning. See Cooper Manuf’g Co. v. Ferguson, 113 U. S. 727, 5 Sup. Ct. Rep. 739; McPherson v. Blacker, 146 U. S. 1, 13 Sup. Ct. Rep. 3; Maize v. State, 4 Ind. 342. A constitution is not to be made to mean one thing at one time, and another at some subsequent time, when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. Scott v. Sanford, 19 How. 393, 15 U. S. (L. Ed.) 691; South Carolina v. U. S., 199 U. S. 437, 26 Sup. Ct. Rep. 110, 50 U. S. (L. Ed.) 261, 4 Ann. Cas. 737; Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738; Ex parte Woods, 52 Tex. Crim. Rep. 575, 108 S. W. Rep. 1171, 124 A. S. R. 1107, 16 L. R. A. (N. S.) 450; 6 R. C. L., Sec. 39; Cox v. Robinson, 105 Tex. 426, 150 S. W. Rep. 1149. Where a particular construction has been generally accepted and acted upon, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, a strong presumption exists that the construction rightly interprets the intention. Cooley’s Cons. Lim. (7th ed.) p. 102. Where a constitutional provision will bear two constructions, one of which is consistent with, and the other inconsistent with, 'an intention expressed clearly in a previous section, the former must be adopted, that both provisions may stand and have effect. Chance v. County of Marion, 64 Ill. 66. A construction of the constitution which renders superfluous or meaningless or inoperative any of its provisions should not be adopted by the courts. State ex rel. Crow v. Hostetter, 137 Mo. 636, 39 S. W. Rep. 270, 38 L. R. A. 208, 59 Am. St. Rep. 515. All the provisions of Article V should be considered in determining the meaning of Section 35 of that Article. See State v. Kyle, 8 West Va. 711; Haggart v. Alton, 29 S. Dak. 509, 137 N. W. Rep. 372; State ex rel. Gray v. Hodges, Ark. , 154 S. W. Rep. 506; 6 R. C. L. Sec. 42; State v. Atlantic Coast L. R. Co., 56 Fla. 617, 47 South. Rep. 969, 32 L. R. A. (N. S.) 639.

'Organic provisions relating to the jurisdiction and procedure of courts may by fair implication also include the jurisdiction and procedure of the judge or judges who constitute the court. See State v. Johnson, 13 Fla. 33, where it was held that the statute could authorize a judge of the appellate court to make supersedeas orders, such orders being regulated by an existing statute and the statuté not being repugnant to the constitution. In several cases it has been held that statutes are not repugnant to the constitution in regulating the jurisdiction of Circuit Judges not in term time, and in other Circuits by temporary .assignment or exchange of Circuits, and in making- orders in cases pending in other Circuits where thé resident judge can not act, and in trials de novo, &c. See Ex parte Henderson, 6 Fla. 279; Ex parte Daly, 66 Fla. 343, 63 South. Rep. 834; Atlantic Coast Line R. Co. v. Mallard, 53 Fla. 515, 43 South. Rep. 755; Thebaut v. Canova, 11 Fla. 143; Swepson v. Call, 13 Fla. 337; State ex rel. Florida Pub. Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614; Bacon v. State, 22 Fla. 46; Simonton v. State ex rel. Turman, 44 Fla. 289, 31 South. Rep. 821; McGee v. Anderson, 33 Fla. 499; A. C. L. Ry. v. Mallard, 53 Fla. 515. But the question here is not as to the jurisdiction of a legally existing court or judge. The controversy is as to the legal authority of the respondent to be a Circuit Judge. Where there are express organic provisions and limitations as to the number and establishment of courts and also- as to the number of the judges of such courts, an amendment giving authority to increase the unrnber of the courts will not be regarded as authorizing an increase of the number of judges of such courts, unless that intent clearly appears by the language used. This is particularly so when as here the organic provisions in one section include a separate express limitation as to the number of judges for each such court, and the amendment is not of that section, but of another section which relates to the courts that may be established, and not to the judges of courts. The only provision in amended Section 35 that relates to judges is legally and grammatically entirely in accord with the provision and fixed limitation of Section 8 that there shall be one judge for each of the Circuits; and the terms of the amendment do not plainly indicate an intent to authorize an increase of the judges for a Circuit as distinguished from an increase of the number of Judicial Circuits, so that there may be more Circuit Courts, which latter is the manifest intent of the amendment. The express authority given by Section 35 as amended to provide “additional” judges is as a complement to and to correspond in number with the “additional” Judicial Circuits that are established, so that the express organic provision and limitation that “one judge shall be assigned to each Circuit” will be complied with. Constitutions should not be regarded as amended by implication unless there is a clear repugnancy between the old and the new provisions. See Board of Public Instructions of Polk County v. Board of Com’rs of Polk County, 58 Fla. 391, 50 South. Rep. 574. A construction that nullifies a specific clause will not be given to a constitution unless absolutely required by the context. See Marbury v. Madison, 1 Cranch (U. S.) 137; Ferrill v. Keel, Ark. , 151 S. W. Rep. 269. The clause “and for * * * additional Circuit Judges therefor” contained in amended Section 35 is not surplusage since it is appropriate, if not necessary, in view of the express provision of Section 8 that “there shall be eight Circuit Judges.” Otherwise the right to have additional judges for additional circuits would depend upon implication. A Circuit Judge together with a Judicial Circuit is necessary for the establishment of a Circuit Court.

If the organic provision that “one judg'e shall be assigned to each Circuit” does impose a limitation upon the legislature and such limitation may be dispensed with by official action to remedy a hardship in a particular case, then any and all other limitations of the State constitution may likewise be ignored as convenience suggests thereby rendering impotent the supreme law of the land. Butler v. Andreus, 35 Mont. 575, 90 Pac. Rep. 785.

Section 35 as amended authorizes “additional Judicial Circuits * * * and additional Circuit Judges therefor, whose terms of office and general jurisdiction shall be the same as herein provided for Circuit Judges herein already provided for.”

The effect of amended Section 35 is to make amended Section 8 read: • “There shall be eight (or more) Circuit Judges, * * * . The State shall be divided * * * into eight (or more) Judicial Circuits, and one judge shall be assigned to each Circuit.” The additional Circuits and Judges therefor that may be provided for, become a part of the system established by Section 8, and each additional Circuit Court established has the same attributes with the same limitations when in existence that apply to the original eight Circuits. The word “additional” is used in Section 8 as amended which increased to eight the number of Circuit Courts that “shall” be established; and the same word “additional” as used in amended Section 35 has the same meaning and effect that it had in amended Section 8. It shows an intent to1 authorize air increase of the number of Judicial Circuits and Circuit Judges so that there may, if necessary to meet the demands of litigation, be more Circuit Courts as a part of the system of Circuit Courts provided for by amended Section 8.

By Section 8 as amended and Section x 1 of Article V, the constitution provides for a continuance of the definite and comprehensive system of Circuit Courts that has been established in this State from the beginning- of the State government. The essential elements of such system' of Circuit Courts are expressly defined and provided for, vis, Judicial Circuits with Circuit Judges, their jurisdiction and their tenure. Eight Judicial Circuits and eight Circuit Judges with one judge for each Circuit, who shall reside therein, are mandatorily required, while additional Judicial Circuits with a corresponding number of Circuit Judges therefor who shall have like jurisdiction and' tenure may be provided. All are provided by the legislature though eight must be provided, while others may be provided. Those subsequent to eight as well as the first eight constitute a part of the complete system of Circuit Courts definitely provided for in the Constitution. Each has the same essential attributes — a Judicial Circuit and one Circuit Judge with the fixed jurisdiction and tenure, whether it is of the first eight, or of' those established subsequent thereto. This is the necessary effect of the language used in amended- Sections 8 and 35. Section 35 as amended does not contemplate a new or different system of Circuit Courts, but an extension of the system provided for by Section 8.

. The provisions authorizing “additional judicial circuits” and “additional Circuit Judges therefor” appear in amended Section 35, and such provisions do not modify the mandatory requirement in Section 8 of one Judge for each Circuit, as there is no clear repugnancy in such provisions, the plain meaning being to authorize additional judges-when and as additional circuits are created, so that the established system of Circuit Courts with one Judge for each Circuit may be preserved and extended to' meet the requirements of growth and development.

Does Section 1 as amended in 1913-14 authorize more than one Circuit Judg-e for each Judicial Circuit? Where the constitution in a separate section expressly provides for a fixed system and number of Circuit Courts with a limitation of one Judge for each such court, and an amendment of another section of the constitution, which specifies the courts and commissions in which the judicial power of the State shall be vested, gives the legislature authority to create “other courts or commissions,” such amendment will not be regarded as authorizing more than one Judge for each Judicial Circuit when tie terms of the amendment do not clearly show such an intent.

Section 1 as amended in 1913-14 vesting the judicial power of the State in enumerated courts and giving- express authority to the legislature to create “other courts or commissions,” does not by any fair construction show an intent to authorize more than one Judge for each Jucial Circuit, when Section 8 as amended in 1901-2 expressly limits the number of Judicial Circuits and also the number of Circuit Judges to one for each Circuit. This is particularly so when the provisions of Section 35 as amended in 1909-10 authorizing “additional Judicial Circuits” and “additional Circuit Judges therefor,” showed an intent to remove the fixed limitations of Section 8 only as to the number of Judicial Circuits, and not as to the number of the Judges for each Circuit. The Legislature lias express authority to create and establish additional Judicial Circuits and to 'ordain and establish “other courts or commissions” than those enumerated in the constitution ; but no authority is given the legislature to provide for more than one Circuit Judge for any Judicial Circuit. On the contrary the constitution expressly provides for and limits the number of Circuit Judges to “one judge” for “each Circuit.” If it had been intended to change the long existing and only system of Circuit Courts in the State wherein only one judge is assigned to a Circuit, apt words would have been used. People ex rel. Snyder v. Hylan, 148 N. Y. S. 287. The system in operation from the beginning of the State government should not be changed by strained implications sought to be drawn from language that is grammatically and legally plainly referable to and consistent with the long existing and only system known to the State. If legislative power exists .to provide for more than one judge for any Judicial Circuit, the failure to exercise it does not affect the power. But where the power does not exist it cannot be exercised whether previously attempted or not.

Section 4 of the Declaration of Rights provides that “all courts in this State shall be open, so that any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and rig'ht and justice shall be administered without sale, denial or delay.” This organic provision does not in-any way affect the power of the legislature under the specific express requirements and limitations that are applicable in providing for Circuit Courts and Circuit Judges in this State.

Sections 1 and 35’ of Article V as amended subsequent to the amendment of Section 8 do not relate to the same subject to which amended Section 8 relates, they were not adopted for the same purpose and their provisions are not so irreconcilably in conflict with and repugnant to Section 8 as to make Sections 1 and 35 as amended either repeal, amend or modify the express provision and limitation of Section 8 as amended in 1901-2, that “one judge shall be assigned to each Circuit.” On the contrary the language of amended Sections 1 and 35 as we construe it, is in entire accord with the quoted provision of amended Section 8; and Sections 1 and 35 can be rendered repugnant to the stated part of Section 8 only by a construction that is not warranted by a consideration of all the organic provisions affecting the subject.

The amendments to the judiciary article of the constitution considered separately or collectively do not contain apt words to disclose an intent to change the only system of Circuit Courts known to the history of the State. On the contrary the terms and scope of the amendments -refer to, accord 'with and show, an intent to continue the long existing system, and do not show an intent to depart from or to change the established system of Circuit Courts with one Circuit Judge for each Judicial Circuit. Sections i and 35 as amended do not revise Section 8 or prescribe the only rule applicable to the subject matter of Section 8. F. E. C. Ry. v. Hazel, 43 Fla. 263.

However desirable it may be to provide for more than one Circuit Judge in a Judicial Circuit of the State in which multiplied and rapidly increasing litigation keeps pace with vastly increased population, property, values, business and commerce, the inconvenience necessarily resulting from a lack of adequate judicial tribunals, can not lawfully be overcome by ignoring the express provisions and limitations of organic law. The obligation of an official oath to “support, protect and defend the constitution * * * of the State,” and the duty to require and give efficacy to the controlling law as it is written, preclude the giving of weight to matters of mere convenience 'or hardships to justify an unprecedented and quite unnatural construction of the paramount organic law that appears by its terms to be plain in the meaning and intent given to it by long usage throughout the history of the State. See Oakley v. Aspinwall, 3 N. Y. 547; Greencastle Township v. Black, 5 Ind. 557; Chance v. County of Marion, supra; Law v. People, 87 Ill., 385; Butler v. Andrus, 35 Mont, 575, 90 Pac. Rep. 785; Settle v. Van Evrea, 49 N. Y. 280; Keller v. State, Tex. Crim App. , 87 S. W. Rep. 669; State v. Martin, 60 Ark. 343, 30 S. W. Rep. 421, 28 L. R. A. 153. In the construction of the constitution, courts have nothing to do with the argument front inconvenience — their duty being simply to declare what the constitution has said. Greencastle Township v. Black, supra.

The constitution was intended to be exact in its limitations of power, not to be changed except in such particular and deliberate way as to render as certain as practicable that the electors desired it, evidenced by an expression of judgment after ample time and facility for investigation and maturity of thought on the subject. State ex rel. Mueller v. Thompson, 149, Wis. 488, 137 N. W. Rep. 20, 28 Ann. Cas. 774.

In so far as the quoted statute provides for two Circuit Judges for one Judicial Circuit, it is in direct conflict with the still potential provision and limitation of Section 8 of Article V, that “one Judge shall be assigned to each Circuit;” consequently such provision of the statute is inoperative, and the appointrhent of the respondent as Circuit Judge for a Circuit in which there is already one Circuit Judge, is without authority of law.under the Constitution of his State.

Let a judgment of ouster be entered.

Taylor, C. J., and Shackleford, J., concur.

Cockrell and Ellis, JJ., dissent.