State Ex Rel. Hawthorne v. Wiseheart

28 So. 2d 589, 158 Fla. 267, 1946 Fla. LEXIS 567

• Court: Supreme Court of Florida
• Decided: October 8, 1946
• Status: Published

Opinions

TERRELL, J.;

On June 24, 1946, the Governor appointed N. Vernon Hawthorne to the office of Circuit Judge, Eleventh Judicial Circuit of Florida, the position at the time held by Marshall C. Wiseheart, under an appointment and commission dated June 4, 1943. Hawthorne promptly filed information in quo warranto challenging the title of Wiseheart to the- office. A demurrer to Wiseheart’s return to the information raises the sole question presented: the validity of Wiseheart’s title to the office, drawn in question.

The facts out of which the answer to this question must be deduced are these: Wiseheart was duly elected, and qualified, and served as a member of the House of Representatives, Legislature of 1943, the time for which he was elected being from the general election in 1942 to the general election in 1944. On June 4, 1943, he resigned as a member of the House of Representatives and was appointed and commissioned Judge of the Eleventh Judicial Circuit of Florida for the term ending the first Tuesday after the first Monday in January, 1949. The appointment was to fill out the unexpired term of the Honorable Worth W. Trammel, resigned.

The Legislature of 1943 enacted Chapter 21760, the pertinent part of which is as follows:

“Section 1. That beginning July 1, 1943, the annual salaries of the Judges of the Circuit Court of the State of Florida shall be $6,000.00, which salaries shall be paid by equal monthly installments by warrants drawn by the State Comptroller upon requisition made for same.

“Section 2. Any member of the Legislature who may during the time for which he was elected Senator or Member of the House of Representatives, be appointed or elected to a civil officer referred to in Section 5, Article III of the Constitution shall receive during the term for which he was elected or appointed to such civil office the salary or emoluments which under the provisions of law appertain to such office at the beginning of the time for which he was elected Senator or Member of the House of Representatives.”

The Legislature of 1943 also enacted Chapter 22153, the effect of which was to amend Chapter 17772, Acts of 1937, by authorizing counties with a population of 260,000 or more to pay their Circuit Judges an additional compensation of ten per cent of the compensation paid them by the state. The latter act contains a provision similar to that here quoted from Section 2 of Chapter 21760 barring Senators and Representatives from participating in its provisions during the time for which they were elected, should they be appointed or elected to any civil office.

Hawthorne contends that both these acts are in direct conflict with Section 5, Article III of the Constitution, and, being so, Wiseheart’s appointment was devoid of legal sanction, that he usurps the office of Circuit Judge, and that his appointment was void ab initio. Section 5, Article III, is as follows:

“No Senator or Member of the House of Representatives shall during the time for which he was elected, be appointed, or elected to any civil office under the constitution of this state that has been created, or the emoluments whereof shall have been increased during such time.”

The latest interpretation of this provision of the Constitution was in advisory opinion to the Governor. Reported in 155 Fla. 55, 22 So. (2nd) 458, wherein we held that no member of the Legislature of 1945 was eligible to appointment to the office of additional Circuit Judge of the Sixth Circuit created at that Session. Other holdings are to the effect: (1) that “during the term for which he was elected” means the term fixed by the Constitution. Advisory Opinion to the Governor, 94 Fla. 620, 113 So. 913. (2) Ineligibility continues during the time for which the member of the Legislature was elected, and he cannot render himself eligible by resigning. Advisory Opinion to the Governor, 45 Fla. 269, 39 So. 63. (3) A Senator elected in 1924 is eligible to be elected Governor in the 1928 General Election, even though the emoluments were increased during his incumbency as Senator. Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41. (4) State ex rel. Landis v. Bird, 120 Fla. 780, 163 So. 248, is enlightening on other phases of this question.

The net result of these holdings is that no member of the Legislature is eligible to appointment as Circuit Judge or to any civil office that was created or the emoluments thereof .were increased during the time for which he was elected. If he is a member of the House of Representatives, the time for which he is elected runs to the succeeding general election after the one at which he was elected. If he is a Senator, the time for which he is elected runs to the general election four years from the one at which he was elected. He cannot better his position by resigning his membership in the Legislature, but he is eligible to appointment or election to any civil office immediately following the general election at which his term in the Legislature expires. We are also of the view that a statute raising the compensation of Circuit Judges, as did Chapter 21760 or Chapter 22153, with provision withholding •such compensation from members of the Legislature during the time they were elected thereto, does not render them eligible for appointment as Circuit Judge.

The purpose of Section 5, Article III of the Constitution, was to remove the temptation on the part of the Legislature or any of its members to “featherbed” on the public domain during the period of their election, by raising the salary of or creating public offices and getting themselves appointed thereto. Any device to circumvent this provision of the Constitution should be stricken down. We are of the view, however that any question of a Legislator’s ineligibility to hold office because of Section 5, Article III, must be raised during the time the Constitution prohibits his appointment or election.

Many considerations support this view. Section 5, Article III, does not state a disqualification for office; it only prohibits election or appointment to another office during the period for which one is elected to the Legislature. When that period expires, the prohibition expires with it, and the member of the Legislature is eligible to election or appointment to any civil office. No penalty is imposed for violation of the prohibition, so in determining whether or not its terms have been violated this Court is burdened with no punic consideration because there is no authority to punish. Whether Hawthorne or Wise-heart holds the office of Circuit Judge in Dade County is not the material consideration. The matter with which we are concerned is whether or not Section 5, Article III of the Con stitution, is being violated and the mandate of the people, as contained therein, transgressd. ■

. A legal disqualification to hold office continues indefinitely, unless removed by the Legislature or some authority commissioned to remove it. This is not the rule when a legal prohibition interdicts the holding of an office for a special time. If Wiseheart’s title to the office of Circuit Judge had been challenged during the period he was elected to the Legislature, he would no doubt have been declared ineligible and ousted, but that period expired in November, 1944, nearly two years ago. We think, by the very terms of the Constitutional prohibition, it should be construed like a statute of limitations or a statute of repose, and, since the limitation has long since run and there is no other charge or disqualification, Wiseheart’s eligibility cannot now be drawn in question.

Section 15, Article IV of the Constitution, authorizes the Governor to suspend all officers not subject to impeachment for malfeasance, misfeasance, or neglect of duty in office, for the commission of a felony, or for drunkenness or incompetency. The Governor cannot, however, reach back and suspend an officer for an offense committed prior to his current term. If the power of suspension and removal is limited to the current term, then certainly the prohibition against appointment to office for a period specified in the Constitution should not be permitted to be raised more than a year and a half after it is dead. A statute of limitations would be so construed, and there is no difference in the rules governing statutory and constitutional construction.

Hawthorne contends that Wiseheart’s appointment was void ab initio, though he says all orders, decrees, and other proceedings in which he participated are valid. We fail to follow this logic. The facts are that Wiseheart’s appointment was, on its face, regular, it was regularly confirmed by the Senate, he qualified as the law requires, and he has faithfully performed the duties of the office to this date, or for more than three years, the major portion of which transpired after the expiration of the time he was elected to the Legislature when there was no question of his eligibility. The Governor and the Senate may not be too severely criticized for their- action, since the same thing had, been done before ■ and no question was raised to its validity.

• Much is said in the. briefs about Wiseheart’s having been appointed, confirmed by the Senate, qualified, and having assumed his duties as Circuit Judge before the effective date of the Act • increasing the emoluments' of the office. These facts and the fact that he was appointed to an office previously created are admitted. : It is also shown that- the salary in- ' crease act is the basis of the claim of disqualification and that it became a law without the Governor’s approval some days after Wiseheart’s appointment. These recitations are mere trivia that do not go to the merits or the controversy. In our judgment, Wiseheart was' a de facto officer from the day of his appointment. He was in peaceful position, discharging his official duties in view of the public, with public acquiescence, and without the slightest appearance of a usurper. See Vol. 43, p. 225, Sec. 471, Am. Jur., for the best discussion we have found of what constitutes a de facto officer. It is too well settled for comment that Section 5, Article III, should be strictly construed in favor of the officer whose title is assaulted. Wallace v. Grubb, 154 Tenn. 655, 289 S.W. 530; Gregg v. Dudley, 143 Okla. 281, 289 Jac. 254.

It is hardly necessary to say that the de facto doctrine was engrafted on the law for public policy and necessity, in order that the interest of the public and others dealing with the officer might be protected. It has been frequently held that it would be unreasonable to require those dealing with any officer to inquire into his title; hence, Wiseheart’s official acts were as valid as if he had been an officer de jure and no question had been raised as to them. Sawyer v. State, 94 Fla. 60, 113 So. 736; Martin v. Grandview Independent School District, (Tex. Civ. App.), 266 S.W. 607; Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 63 S.W. 976; State v. Carroll, 38 Conn. 449. After the November, 1944, election, every impediment to Wiseheart’s title under the Constitution was removed, he was fully qualified to hold the office, and we are shown no valid reason why he should be ousted. This Court has approved the doctrine that quo warranto is discretionary. City of Winter Haven v. State ex rel. Landis, 125 Fla. 392, 170 So. 100. We find no valid reason whatever to support an affirmative judgment on the information in this case. The public will in no sense be protected or benefitted by it; Wiseheart is shown to be fully qualified and has, in fact, performed the duties of the office for almost two years without question after the time expired in which his title was subject to assault.

Another reason this Court should exercise its discretion to deny affirmative relief is that there was and is yet no' vacancy in the office, and there must be a vacancy before an appointment can be made. Even if Wiseheart is now nothing more than a de facto officer, he is holding and exercising the functions of the office, and the only way a vacancy could be created is by direct proceedings to oust him. There is no taint attached to the fact of being a de facto officer. The difference between the authority of a de facto officer and that of a de jure officer is that one rests on right and the other rests on reputation. Ridout v. State, 161 Tenn. 248, 30 S.W. (2nd) 255. A de jure officer, in other words, has the lawful title without possession, while the de facto officer has possession and performs the duties under color of title without being technically qualified to act. As we have previously stated, Wiseheart’s technical disqualification was relieved long before the assault was made on his title, and whether his status at the present is that of a de facto or a de jure officer is not material to this suit.

Section 114.01, Florida Statutes 1941, defines the conditions under which an office becomes vacant. The Governor may declare a vacancy under certain conditions named in Section 114.01, or he may create a vacancy by removal, as in Section 15, Article IV of the Constitution, but not otherwise. It is certain that he cannot appoint to fill a vacancy until a vacancy in law actually exists. It takes the joint action of the Governor and the Senate to remove officers not subject to impeachment or to fill a Circuit Judgeship. State ex rel. Landis v. Bird, supra. If, for any reason, it could be said that there was a vacancy at any time, it existed long before the 1945 Session of the Senate, and it was the constitutional duty of the Governor to send the name of an appointee to the Session of the Senate. Since it takes joint action of the Governor and the Senate to consummate title to office, Hawthorne is not in position to maintain this suit until his appointment is confirmed by the Senate. Under the doctrine of State ex rel. Landis v. Bird, supra, there is no inherent power in the executive to fill a vacancy in office. His power to do so much be expressly provided by the Constitution and conferred by law.

To contend that Wiseheart’s appointment was void ab initio and then declare in the same breath that all his orders, decrees, and official acts are valid does not square with reason. If his appointment was void, it was null and without binding effect, and nothing binding could flow from it; neither could it be cured. It is quite true that the term “void,” when used in statutes and decisions, does not always impart positive nullity, but, when this is the case, the act, order, or instrument is often classified as “voidable” rather than “void,” the distinction being that, if void, it may be assailed in any proceeding, but, if voidable, it must be assailed by direct proceeding. So it would be perfectly consistent with reason to hold that Wiseheart’s appointment was voidable, that he was a de facto officer during the period he was elected to the Legislature, and that his official acts were binding.

It is accordingly our view that Section 5, Article III of the constitution, is a prohibition against appointing a member of the Legislature to any civil- office during the time for which he was elected and that the title to any such appointment may be held invalid by quo warranto if moved against during that period. The Constitution does not void the appointment or the acts of the appointee, and we find no authority for this Court to question the title after the period for which he was elected to the Legislature expires, he being in all other respects qualified. Under the rule of strict construction in favor of the officer whose title is assaulted, no other conclusion is permissible. To hold otherwise under the facts related would amount to nothing more than “swapping horses,” and quo warranto cannot be used for that purpose. ■

It follows that the demurrer to the return must be and is hereby overruled and the return is held to be sufficient.

It is so ordered.

CHAPMAN, C. J., BROWN and ADAMS, JJ., concur.