State Ex Rel. Davis v. Giblin

An "additional judicial circuit" was created and established in 1927 under Section 35, Article V, of the Constitution as amended in 1910. The respondent was appointed in 1927 judge of such additional judicial circuit for a term of two years to conform to the cycle periods beginning in 1887 of six-year terms of office of judges of judicial circuits, the current cycle in 1927 being 1923 to 1929. The appointment for a period of two years was required by the judicial interpretation of the intent of amended Section 35, considered in connection with amended Section 8, Article V, Constitution. In Re Advisory Opinion to the Governor, 76 Fla. 649, 80 So. R. 519; In Re Advisory Opinion to the Governor, 78 Fla. 5, 82 So. R. 612. Inquo warranto proceedings it is contended for the respondent that he should have been appointed for a term of six years upon the theory that Section 43, Article V of the Constitution destroyed the cycle periods of six-year terms established in 1887 for the terms of office of the judges of judicial circuits, at least as to additional judicial circuits created under amended Section 35, Article V, Constitution. By its plain terms Section 43, Article V of the Constitution adopted in 1922 authorizes the Legislature to provide for the appointment of one or more "additional circuit judges" for any judicial circuit having not less than 75,000 inhabitants, when the judicial business of such circuit requires more than one judge; and Section 43 has no reference to the terms of office of the judges of "additional judicial circuits" that may be created and established under Section 35, Article V, as amended in 1910. Section 43 provides that "additional circuit judges" "shall be appointed by the Governor and confirmed by the Senate, and hold office for six years," and such provision has no bearing whatever on the cycles that control the terms of office of judges of the judicial circuits under amended Sections 8 and 35, Article V, Constitution. There is no provision in Section 43 that expressly or by fair intendment destroys or in any way affects the six-year cycle terms established in 1887 and continued by amended Sections 8 and 35, Article V, Constitution of 1885.

Under original Section 8, Article V, Constitution of 1885, there were seven circuit judges and the State was divided into seven judicial circuits, which circuits containing designated counties remained as defined by Section 3, Article XVI of the Constitution of 1868. See Section 3, page 332, McClellan's Digest; Section 10, Article V, Constitution of 1885. One circuit judge appointed by the Governor and confirmed by the Senate, was assigned to each judicial circuit, the term of office of each circuit judge being six years, the cycle beginning in 1887. Under the amendment to Section 8, Article V, adopted in 1902, the State was in 1903 divided into eight judicial circuits; one circuit judge appointed by the Governor and confirmed by the Senate was assigned to each circuit, the term of office of each circuit judge being six years; and the judge of the additional (eighth) circuit was required to be appointed "for a term equal to the unexpired term of the other circuit judges." The cycle of six years beginning in 1887 terminated in 1893, 1899, 1905, 1911, 1917, 1923, 1929, so that the appointment of a judge for the additional (eighth) judicial circuit created and established by Chapter 5120, Acts of 1903, "for a term equal to the unexpired term of the other circuit judges," was for the two years of the cycle terminating in 1905. Thereafter in each judicial circuit theretofore or thereafter created and established, a circuit judge was appointed "for a term equal to the unexpired term of the other circuit judges," thereby continuing the original 1887 cycle.^*

By an amendment to Section 35, Article V, adopted in 1910, the legislature was authorized to "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."

Amended Section 35, Article V, provides that the "terms of office" of the judges of "additional Judicial Circuits," "shall be the same as * * * for the Circuit Judges * * * already provided for." In order to be "the same" the terms must be of the same length and of the same cycle as the terms of office of the circuit judges "already provided for" and the circuit judges "already provided for" are those under amended Section 8, Article V, all having the same length and cycle of terms.

The words "terms of office" as used in amended Section 35, Article V, have reference to the offices of judges of judicial circuits and to terms consisting of consecutive periods of six years following each other in regular order, the one commencing where the other ends, the initial six year terms having begun in 1887 under original Section 8, Article V, constitution and continued by amended Sections 8 and 35, Article V of the constitution of 1885. See Advisory Opinion to the Governor,76 Fla. 649, 80 So. R. 519; State ex rel v. Paderick, 77 Fla. 277, 81 So. R. 285; Advisory Opinion to the Governor, 68 Fla. 560, 66 So. R. 1003; State ex rel. v. Knight, 76 Montana 71; The People ex rel. v. McClave, 99 N.Y. 83; Hale v. Bischoff, 53 Kansas 301.

Section 7, Article IV, Constitution, authorizes an executive appointment to fill a vacancy in any office, and the statute provides that a vacancy in office exists when an office has been created and it has not been filled. Section 461, Comp. Gen. Laws, 1927. See In Re Advisory Opinion to the Governor,94 Fla. 986, 114 So. R. 889; In Re Advisory Opinion to the Governor, 78 Fla. 5, 82 So. R. 612; Opinion Rendered to the Governor, 25 Fla. 426, 5 So. R. 613. Section 33, Article V, Constitution, provides that when the office of any judge shall become vacant from any cause, the appointment or election shall be for the unexpired term.

This court has held that when a new county is formed from a portion of another county, the initial term of office of the county judge of the new county is the same as the remainder of the term of the county judge of the original county, which accords with the cycle of four year terms for county judges which began in 1887, under Sections 10 and 14, Article XVIII, Constitution 1885. In Re Opinion of the Justices, 68 Fla. 560, 66 So. R. 1003. See also Advisory Opinion to the Governor, 94 Fla. 968, 114 So. R. 889.

In this case the twenty-second judicial circuit was formed from a portion of the fifteenth judicial circuit, and the clear requirement of amended Sections 8 and 35 and Section 33, Article V, Constitution, is that the initial terms of office of the judges of new judicial circuits shall be the same as the then unexpired portion of the terms of the other judges of judicial circuits, in accord with the cycle which began under original Section 8, Article V, Constitution of 1885, the intent of the organic provisions being that the terms of office of all the judges of judicial circuits, as distinguished from "additional Circuit Judges" that were subsequently provided for by Section 43, Article V, shall conform to the six-year cycle which began in 1887 under original Section 8, Article V, Constitution of 1885. The provisions of the Constitution of 1868 did not require the original cycle to be observed in subsequent appointments of judges of the judicial circuits of the State. Advisory Opinion to the Governor, 16 Fla. 841; State ex rel. Murphy, 32 Fla. 138, text 178, 13 So. R. 454; Simonton v. State, 44 Fla. 289, text 315, 31 So. R. 821.

When under amended Section 35, of Article V, the legislature shall "provide for the creation and establishment of" an "additional Judicial Circuit," at any time between the beginning and ending of any of the established cycles of six years beginning in 1887, the provision for the appointment of a judge for such "additional Judicial Circuit" "whose terms of office and general jurisdiction shall be the same as is herein provided for circuit judges herein already provided for," requires the first appointment of the judge for the "additional Judicial Circuit" to be "for a term equal to the unexpired term of the other Circuit Judges," as under amended Section 8. See In Re Advisory Opinion to the Governor, 76 Fla. 649, 80 So. R. 519, where the appointment in 1917 was for six years, the current cycle beginning from 1917 to 1923. See also In Re Advisory Opinion to the Governor, 78 Fla. 5, 82 So. R. 612, where the appointment in 1919 was for four years the current cycle being 1917 to 1923. The words "terms of office," contained in amended Section 35, refer to those of "the Circuit Judges already provided for" in amended Section 8, and not to that of the "additional Circuit Judge" under Section 42; Section 43 had not then been adopted; but its adoption did not affect the six-year cycle terms of the judges of judicial circuits, because Section 43, relates to "additional Circuit Judges" and not to judges of "additional Judicial Circuits." The "term of office" of the circuit judges already provided for was six years, under amended Section 8, the cycle controlling the beginning and ending of succeeding terms having begun in 1887 and continued by amended Section 8, Article V, Constitution. This cycle was not intended by Section 42 to be applied to the term of the "additional Circuit Judge" provided for by that section; and Section 42 was in force when this court held that the cycle beginning in 1887 and continued by amended Section 8, was intended by amended Section 35 to be applied to judges appointed for additional judicial circuits created by the legislature under amended Section 35. The provisions of Section 43, adopted in 1922 providing for "additional Circuit Judges" are like those of Section 42, adopted in 1912 providing for an "additional Circuit Judge" in Duval County. Neither section requires the cycle beginning in 1887 to control the terms of the tions, but each such section specifically provides that the "additional Circuit Judge" when appointed, shall "hold office for six years." If an "additional Circuit Judge" resigns, his successor is appointed for the remainder of the six-year term. Section 33, Article V, Constitution; Advisory Opinion to the Governor, 93 Fla. 1024, 113 So. R. 115. Section 43, adopted in 1922, does not affect the terms of office of the circuit judges who are appointed under amended Sections 8 and 35. Section 43, authorizes the legislature to provide for the appointment of "additional Circuit Judges" in any existing judicial circuit which contains not less than 75,000 population. In each judicial circuit there must be one judge of the circuit before there can be an "additional Circuit Judge" for the circuit. Additional circuit judges may beduly dispensed with but the judicial circuits remain and there must be one circuit judge for each judicial circuit however small the circuit may be. Thus the Constitution observes a distinction between a judge of a judicial circuit who, under amended Sections 8 and 35, must be appointed in every judicial circuit and an "additional Circuit Judge" who may or may not be appointed in a circuit of not less than 75,000 inhabitants as the legislature may enact, under Section 43, Article V, Constitution.

In 1912, Section 42, Article V, was adopted providing directly for "another Judge of the Circuit Court of Duval County in addition to the Circuit Judge of the circuit in which said county is situated. Such additional Circuit Judge shall be appointed by the Governor and confirmed by the Senate, and shall hold office for six (6) years. 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 concerning Circuit Judges shall apply to him." These provisions for an "additional Circuit Judge" for an existing circuit are different from the provisions of amended Section 8, Article V, providing for the creation of an additional judicial circuit and for the appointment of a judge therefor, and different from amended Section 35, Article V, providing for the creation and establishment by the legislature of "additional Judicial Circuits" and for the appointment of "additional Circuit Judges therefor." The term of office of every circuit judge is six years, but an "additional Circuit Judge" is not required to be first "appointed for a term equal to the unexpired term of the other Circuit Judges," as is required by amended Sections 8 and 35, when a circuit judge is to be appointed for an "additional Judicial Circuit" that is created and established during the course of a current cycle of six years. Amended Section 8, provides that an additional judicial circuit shall be created and that "a Judge for the additional circuit shall be appointed" "for a term equal to the unexpired term of the other Circuit Judges," and Section 42 does not require as does amended Section 35, that the "term of office" of the "additional Circuit Judge" "shall be the same as provided for the Circuit Judges already provided for." The provision of Section 42, is that the "additional Circuit Judge" for Duval County "shall be appointed by the Governor and confirmed by the Senate, and shall hold office for six (6) years." Under Section 42, the "additional Circuit Judge" for Duval County was to be appointed for six years without reference to the cycle that controls the term of the Judge of an existing judicial circuit or of a newly created judicial circuit.

Section 43, Article V, adopted in 1922, provides that:

"The Legislature may from time to time 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. * * * 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 concerning circuit judges shall apply to him. * * * The Legislature may repeal any law providing for the appointment of an additional circuit judge, or additional circuit judges for a circuit, but each repeal shall not affect the term, salary and jurisdiction of a judge holding an appointment."

This section authorizing the Legislature to "provide for the appointment of one or more additional circuit judges" "as the business of any circuit requires," is quite like Section 42 which directly provides for the appointment of an "additional circuit judge" in Duval County. In each case, under Sections 42 and 43, the "additional circuit judge" "shall hold office for six years," but the first appointment under either section is not required to be "for a term equal to the unexpired term of other circuit judges," as is the appointment of the judge of an existing circuit under amended Section 8, and as is the appointment of the judge of an "additional circuit" created by the Legislature under amended Section 35, of Article V; nor does Section 43 provide that "the terms of office * * * shall be the same as is * * * provided for the circuit judges * * * already provided for" as in amended Section 35; therefore in omitting the stated provisions contained in amended Sections 8 and 35, and in specifically providing that the "additional circuit judges" "shall be appointed by the Governor and confirmed by the Senate and hold office for six years," Section 43 intends that an "additional circuit judge" as distinguished from the judge of an existing or newly created judicial circuit, shall be appointed for six years without reference to the cycle that controls the term of the judge of a judicial circuit under amended Sections 8 and 35. This interpretation was applied in the Advisory Opinions to the Governor as cited above, and such has been the practical construction in the executive department of the State in making appointments of a judge for each judicial circuit and of "additional circuit judges" for existing judicial circuits.

The obvious organic purpose is that the judges of all thejudicial circuits shall have concurrent cycle terms, while when duly authorized, an "additional circuit judge" for a judicial circuit, shall be appointed for six years; and the "additional circuit judge" may be duly discontinued without affecting the existence of the judicial circuit; and it is quite immaterial if an "additional circuit judge" is first appointed for a term that is longer than the then current term of the judge of the judicial circuit in which the "additional circuit judge" is appointed.

In Re Advisory Opinion to the Governor, 93 Fla. 948, 113 So. R. 113, it was held that an "additional circuit judge" who had already been appointed in the Eighth Judicial circuit, became the judge of the circuit in which he resided when the circuit in which he was appointed "additional circuit judge" was divided and additional judicial circuit was created. When his commission as "additional circuit judge" expires, if he is appointed judge of the judicial circuit in which he resides, his appointment as judge of the judicial circuit may have to conform to the established cycle for every judge of a judicial circuit as distinguished from an "additional circuit judge" appointed in a judicial circuit, but this does not affect the established intent and purpose of the organic provisions that the term of the judge of each of the original judicial circuits and of each "additional judicial circuit" shall be controlled by the six-year cycle that began in 1887.

Section 33, Article V, provides that the appointment of any judge to fill a vacancy shall be "only for the unexpired term" of the preceding judge. The Constitutions of 1838, 1861 and 1868, do not contain this provision. See Advisory Opinion to the Governor, 16 Fla. 841; Section 14, Article V, Constitution of 1865. This organic provision together with amended Sections 8 and 35 preserve the original cycle for the terms of the judges of the judicial circuits who may be appointed for existing or for newly created judicial circuits. The six-year terms of "additional circuit judges" are subject to Section 33, Article V. Advisory Opinion to the Governor, 93 Fla. 1024, 113 So. R. 115. The Constitution does not define a vacancy in office except that it may occur by "death, resignation, retirement, or other cause," Section 33, Article V. See also Section 7, Article IV, Sections 6 and 7, Article XVIII, Section 7, Article VIII, Constitution. The statute, Section 461, Compiled General Laws, 1927, provides that every office shall be deemed vacant in the following cases: * * * 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." See Advisory Opinion to the Governor, 45 Fla. 154, 34 So. R. 571; 64 Fla. 16,59 So. R. 782; Simonton v. State of Florida ex rel.,44 Fla. 289, 31 So. R. 821; Opinion Rendered to the Governor,93 Fla. 1024, 113 So. R. 115. When an "additional judicial circuit" is created, the judge of such judicial circuit should be appointed for the remainder of the then current cycle of six-year terms of all judges of judicial circuits. In Re Advisory Opinion to the Governor, 78 Fla. 5, 82 So. R. 612.

Amended Section 8 provides for the first eight judicial circuits and for one judge for each judicial circuit. Amended Section 35 provides for "additional judicial circuits" and for "additional circuit judges therefor." See State ex rel. West v. Hilburn, 70 Fla. 55, 69 So. R. 784. Section 43 authorizes the Legislature to provide for "additional circuit judges" in "any circuit" as the business therein requires if the circuit has 75,000 inhabitants or more. Section 43, Article V, Constitution, contains the following:

"Wherever there are two or more Circuit Judges appointed for a Circuit the business may be divided among the Circuit Judges having jurisdiction in the Circuit and in any County in the Circuit as may be prescribed by law, and where no provision has been made by law, the distribution of the business of the Circuit between the Circuit Judges of the Circuit, and of any County in the Circuit, and the allotment or assignment of matters and cases to be heard, decided, ordered, tried, decreed or adjudged, shall be controlled or made when necessary by the Circuit Judge holding the commission earliest in date."

This provision has reference to seniority of commission and the conduct of the judicial business of a circuit as between the judges thereof and has no relation to the length of current terms of the circuit judges. No inconvenience can result if the commission of an "additional Circuit Judge" in an existing judicial circuit is prior in date to, or covers a period greater than, the current commission of the judge of the judicial circuit. Amended Sections 8 and 35 cover judicial circuits and a judge for each judicial circuit, while Section 43, provides only for "additional Circuit Judges," there being already one judge of each judicial circuit.

There must be one judge for each judicial circuit no matter how small its population, while there can be an "additional Circuit Judge" only in circuits having 75,000 inhabitants or more. The judge of the judicial circuit and the "additional Circuit Judge" have the same judicial powers; but the Constitution intends to maintain the established cycle of terms for one judge for each judicial circuit under amended Sections 8 and 35, though such cycle is not applied to "additional Circuit Judges" that may be appointed pursuant to legislation under subsequently adopted Section 43.

Under the provisions of Section 7, Article VI of the Constitution of 1868, for a "temporary exchange of circuits" by circuit judges, a similar provision being in Section 8, Article V of the Constitution of 1885, it was, in Clark v. Rugg,20 Fla. 861, held that during the time for which one circuit judge is assigned to another circuit, the power of the resident circuit judge is suspended in that county. After the adoption in 1922 of Section 43, Article V, of the Constitution of 1885, it was in State ex rel. Claar et al. v. Branning, 85 Fla. 61,95 So. R. 237, held, in sustaining the validity of Chapter 6900, Acts 1915, that where a circuit judge is temporarily assigned to another judicial circuit the power of the resident circuit judge in that county is not suspended. These provisions and decisions have no relation to the terms of office of circuit judges.

Chapter 12433, Acts of 1927, under which the respondent was appointed created "an additional Circuit" and provided that "there shall be a Circuit Judge * * * in said Circuit who shall be appointed and confirmed and hold office for the term as provided for other Judges * * * by the Constitution of the State of Florida. " Chapter 12433 was enacted under Section 35, Article V, of the Constitution, not under Section 43, and the quoted provision as to the term of the judge of the judicial circuit created by the act, of course has reference to the provisions of the Constitution controlling the terms of office of "other judges" of judicial circuits like the one whose appointment was then being authorized, and not to terms of office of "additional circuit judges" who may be appointed pursuant to legislation under Section 43, of Article V, Constitution.

Original Section 8, Article V, Constitution provided for one circuit judge for each of the seven judicial circuits created by the Constitution, the terms of each circuit judge to be for six years and each term beginning in 1887. Amended Section 8, Article V, provided for eight judicial circuits and required the judge of the Eighth judicial circuit "to be appointed for a term equal to the unexpired term of the other circuit judges." This in effect required the term cycle begun in 1887 to be observed for the judge of the newly created Eighth judicial circuit as well as for the original seven circuit judges.

Amended Section 35, Article V, adopted in 1910, provides for "additional judicial circuits" and for "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," meaning the circuit judges in the then eight judicial circuits, the intent being that the judges of judicial circuits created under amended Section 35 should have the "same terms of office" as the judges of the already existing circuits, and to have the "same terms" they must like the judge of the eighth judicial circuit have terms of the same cycle and the same length as "the circuit judges herein already provided for" in the Constitution. As heretofore interpreted in advisory opinions to the Governor, the purpose of the organic amendments taken together is that the judge of each judicial circuit shall have a six year term with the same cycle established by the Constitution. Until additional Section 43 was adopted in 1922, the Constitution provided for only one circuit judge in each judicial circuit, except that a special organic provision adopted in 1912 provided for "another judge in the circuit court of Duval County." Additional Section 42, Article V.

Additional Section 43, Article V, adopted in 1922, provided for "additional circuit judges" for existing judicial circuits who shall "hold office for six years" without reference to the cycle which controls the six-year terms of the judges of the judicial circuits under amended Sections 8 and 35, Article V. The language used in Sections 8 and 35 as amended clearly show an intent that in each of the several judicial circuits as they existed originally and as they are increased in number, there shall be one judge of the circuit whose term of office shall run concurrently with all other judges of judicial circuits;76 Fla. 649; 78 Fla. 5. Additional Section 43 contains entirely different provisions. It provides that "additional circuit judges" appointed for existing judicial circuits shall "hold office for six years" without reference to the concurrent terms of the judges of the several judicial circuits. The "additional circuit judges" may be duly discontinued, but there must be a circuit judge for every judicial circuit. The respondent was appointed pursuant to a statute enacted under amended Section 35, Article V, Constitution, and not under additional Section 43, Article V, Constitution; and he was commissioned as required by the opinions in 76 Fla. 649 and 78 Fla. 5.

STRUM, AND BROWN, J. J. concur.

^* The Ninth, Tenth and Eleventh Judicial circuits were created and established by Chapter 6197, Acts of 1911, and the appointment in 1911 of a judge for each of said additional circuits, were each for a term of six years according with the cycle 1911 to 1917. Chapter 6899, Acts 1915, creating the Twelfth judicial circuit was held to be unconstitutional. State ex rel. v. Hilburn, 70 Fla. 55, 69 So. R. 784. The territorial limit of the Sixth Judicial circuit was contracted and the Thirteenth Judicial circuit was created and established by Chapter 6975, Acts 1915. The judge of the Sixth Judicial circuit became the judge of the Thirteenth Judicial circuit in which he resided, and the appointment in 1915 of a judge for the new Thirteenth Judicial circuit was for two years according with the cycle 1911 to 1917. The Fourteenth Judicial circuit was created and established by Chapter 6976, Acts 1915, and the appointment in 1915 of a judge for the new Fourteenth Judicial circuit was for two years according with the cycle 1911 to 1917. The Fifteenth Judicial circuit was created and established by Chapter 7351, Acts 1917, and the appointment in 1917 of a judge for the new circuit was for six years the then cycle being 1917 to 1923. See In Re Advisory Opinion to the Governor, 76 Fla. 649, 80 So. R. 519. Chapter 7845, Acts 1919, contracted the boundaries of the Tenth Judicial circuit and created a new Twelfth Judicial circuit, and the appointment in 1919 of a judge for the new Twelfth judicial circuit was for four years in the cycle 1917 to 1923. The Sixteenth Judicial circuit was created and established by Chapter 9164, Acts 1923, and the appointment of a judge for such additional judicial circuit in 1923 was for six years the then cycle being 1923 to 1929. Likewise as to the Eighteenth Judicial circuit created and established by Chapter 9162, Acts 1923. The Seventeenth Judicial circuit was created and established by Chapter 7847, Acts 1919, and the appointment in 1919 of a judge for such additional judicial circuit was for four years the then cycle being 1917 to 1923. In Re Advisory Opinion to the Governor,78 Fla. 5, 82 So. R. 612. The Nineteenth Judicial circuit was created and established by Chapter 10082, Acts 1925, and the appointment of a judge in 1925 for such additional judicial circuit was for four years the then cycle being 1923 to 1929. Likewise as to the Twentieth Judicial circuit created and established by Chapter 10084, Acts 1925; and as to the Twenty-first Judicial circuit under Chapter 10079, Acts 1925. The Twenty-second Judicial circuit was created and established by Chapter 12433, Acts 1927, and the appointment in 1927 of a judge for such additional judicial circuit was for two years, the cycle then being 1923 to 1929. Likewise as to the Twenty-third Judicial circuit under Chapter 12434, Acts 1927; and as to the Twenty-fourth Judicial circuit under Chapter 12436, Acts 1927, as to the Twenty-fifth Judicial circuit under Chapter 12437, Acts 1927; as to the Twenty-sixth Judicial circuit under Chapter 12438, Acts 1927; as to the Twenty-seventh Judicial circuit under Chapter 12440, Acts 1927; and as to the Twenty-eighth Judicial circuit under Chapter 12441, Acts 1927. The term of office of every "additional circuit judge" is for six years from the date of the first appointment under the statute authorizing an appointment of such "additional circuit judge."