State Ex Rel. Landis v. Thompson

170 So. 464, 125 Fla. 466

• Court: Supreme Court of Florida
• Decided: October 16, 1936
• Status: Published

Opinion

Per Curiam.

— Respondent, Uly O. Thompson, was one of the additional Circuit Judges of the Eleventh Judicial Circuit holding office pursuant to Chapter 9163, Acts of 1923, on the date (July 30, 1935) Senate Bill No. 4 (Chapter 17085, Acts 1935) became effective. He was not reappointed as Circuit Judge nor confirmed as such under Senate Bill No. 4.

According to respondent’s commission, his term of office as additional Circuit Judge under authority of Chapter 9163, Acts of 1923, expired by limitation of the statutory term on June 6, 1935, but by reason of the provisions of the Constitution pertaining to holding over in office after expiration of the specified term, he became entitled to hold over as additional Circuit Judge until his successor should be duly appointed and qualified. See: State, ex rel. Landis, v. Bird, 120 Fla. 780, 163 Sou. Rep. 248.

But under Section 43 of Article V of the Constitution it was within the province of the Legislature to at any time repeal the Act under which respondent had been originally appointed and confirmed as Circuit Judge and was holding over, subject only to the condition .that such repeal could not be made operative to “affect,” that is to say, to cut off any unexpired term of office under the repealed Act short of the specified confirmed term of appointment, nor to “affect” the salary or jurisdiction of such a judge holding, appointment as “additional” Circuit Judge under the Act so repealed, prior to the expiration of the six-year term of any outstanding appointment being held and enjoyed at the time of such repeal.

Chapter 17085 (Senate Bill No. 4), Acts 193S, affirmatively repealed Chapter 9163, Acts of 1923, under which respondent had been appointed and was holding office as Circuit Judge when the repealing Act was passed. So respondent’s term of office having expired and the repeal of the legislative Act under which he was holding having become effective on July, 30, 1935, at a time when respondent had no unexpired term of office to serve, he was merely holding over as “additional” Circuit Judge so long as the law providing for such “additional” Circuit Judge should remain in force, which was until July 30, 1935, the date Chapter 17085, the repealing Act, became effective for the purposes of such repeal.

It follows then that if Chapter 17085, Acts 1935 (Senate Bill No. 4), is a valid law, it abolished, as it was authorized by Section 43 of Article V to do, the particular legislative Act (Chapter 9163, Acts of 1923), under which respondent Thompson was entitled to hold over in office as Circuit Judge. And so it was that from the date of its repeal on July 30, 1935, said Chapter 9163, Acts of 1923, had no force and effect, neither did respondent retain any right under that Act to continue to hold office. This is so, because the repeal of the Act creating the office effectually abolished the office respondent was holding, there being at the time of the repeal no unexpired portion of its specified term of office remaining to be enjoyed by respondent under his existing commission. This feature of the case serves to distinguish it from the case of State, ex rel. Landis, v. Bird, 120 Fla. 780, 163 Sou. Rep. 248, in which last cited case Judge Bird’s office was that of Circuit Judge under Section 35 of Article V of the Constitution, and not that of “additional” Circuit Judge under Section 43 of Article V. Judge Bird’s office of Circuit Judge of the Sixth Judicial Circuit was expressly recognized and continued by the precise terms of Chapter 17085 (Senate Bill No. 4).

To maintain his right to continue to exercise his functions as additional Circuit Judge under Chapter 9163, Acts 1923, under which Act respondent acquired title to his office, it is incumbent upon respondent to demonstrate the invalidity of Senate Bill No. 4 (Chapter 17085) as a repealer of Chapter 9163, Acts 1923. That burden respondent has failed to meet.

Giving arguendo full force and effect to all that is contended for by respondent respecting the alleged invalidity of Senate Bill No. 4 (Chapter 17085) the most that can be discerned from the substance of respondent’s allegations is that while Senate Bill No. 4 undoubtedly passed both Houses of the Legislature during its constitutional session of sixty days, it was not enrolled, signed by the legislative officers, presented to the Governor, nor signed by him, on May 31, 1935, as on the face of the enrolled bill is certified to be the case. That such alleged state of facts set up by respondent is insufficient to demonstrate the invalidity of Senate Bill No. 4, absent some further showing that the involved bill was not actually passed by the Legislature during its sixty days regular session, is established by our recent decision in State, ex rel. Cunningham, v. Davis, 122 Fla. 700, 166 Sou. Rep. 574. See also: State, ex rel. Thompson, v. Davis, 122 Fla. 425, 165 Sou. Rep. 379.

The allegation that the Legislature took a short recess after the lapse of its sixty days session but before its actual dissolution by sine die adjournment on June 2, 1935, if true, is insufficient to show that the Legislature became functus officio prior to the time the authentication of Senate Bill No. 4 was completed within the rule of State, ex rel. Thompson, v. Davis, supra. The “recess” of a parliamentary assembly is interlocutor}? and not final in character. It marks an interval of suspension of business only during a sitting and is not the equivalent! of an adjournment or dissolution of the sitting at which it is taken. A legislative day can only be terminated by an adjournment or some actual dispersing of the assembled membership .amounting to the same thing. On the other hand, a “recess” operates to continue the assembly in session pursuant to its original convocation but with the interposition of an interval in its program of parliamentary business during which the membership must remain within call of the presiding officers and are not permitted to disperse but are required to remain available to be called to order for resumption of parliamentary business when the period agreed upon for the recess has expired.

So the allegation that the Legislature took a recess during its sixtieth legislative day but without dispersal of its membership amounting to a dissolution and consequent adjournment of its assembly as a legislative body, does not alter the application of the rule laid down in State, ex rel. Cunningham, v. Davis, 122 Fla. 700, 166 Sou. Rep. 574, with reference to the continued authority of the Legislature to authenticate its official actions; before sine die adjournment.

Without a showing that Senate Bill No. 4 was passed after the sixty days regular legislative session constitutionally expired at midnight on the calendar day of May 31, 1935, the respondent’s pleading is insufficient and the motion for judgment of ouster must be granted unless respondent shall amend within ten days in a manner not inconsistent with this and the prior opinions of this Court in this case. See State, ex rel. Landis, v. Thompson, 120 Fla. 860, 163 Sou. Rep. 270; State, ex rel. Landis, v. Thompson, 121 Fla. 561, 164 Sou. Rep. 192.

Order entered in accordance with opinion.

Whitfield, C. J., and Terrell, Buford and Davis, J. J., concur. Ellis, P. J., and Brown, J., dissent.