State, Ex Rel. v. Bird and Viney

163 So. 248, 120 Fla. 780

• Court: Supreme Court of Florida
• Decided: September 12, 1935
• Status: Published

Opinion

Whitfield, C. J.

This is a quo warranto proceeding brought July 1st, 1935, in this Court by the Attorney General for a judgment of ouster against Judge John U. Bird, who asserts a right under Section 14 of Article XVI, of the Constitution, to continue in office as Judge of the Sixth Judicial Circuit of Florida, after the expiration of his term of office on June 24th, 1935, until his successor as Judge of the Sixth Judicial Circuit is duly qualified upon an appointment by the Governor and confirmation by the Senate. It is alleged that Judge John I. Viney, also made a party, claims to be a Circuit Judge in and for the Sixth Judicial Circuit under an appointment by the Governor for the period from June 10th, 1935, until July 30th, 1935; and that Judge Viney also has commissions issued June 25th, 1935, under two other appointments by the Governor without confirmation of the Senate; one as Circuit Judge and one as Constitutional Judge for the Sixth Judicial Circuit.

In response to the rule issued in the cause Judge Bird avers in effect that he was appointed by the Governor and confirmed by the Senate as Judge of the Sixth Judicial Circuit for the the last term, and that he is entitled, under Section 14 of Article XVI of the Constitution, to “continue in office,” as Judge of the Sixth Judicial Circuit, after the expiration of his official term, June 24th, 1935, until his successor is duly qualified; and that no successor in- the office for the current term has been duly qualified, in that no such successor has been appointed by the Governor and confirmed by fhe Senate, upon which he could become “duly qualified” as Judge of the Sixth Judicial Circuit; and that an appointment by the Governor alone of a Judge of the Sixth Judicial Circuit is not authorized by law when the office has not become vacant; and that the expiration of an official term and a failure to duly appoint and confirm a successor for the ensuing official term, does not in fact or in law, create a vacancy in the office while the incumbent continues in office and the office does not otherwise legally “become vacant.”

Judge John I. Viney, in response to the rule, moved to strike portions of the petition; and also in effect avers that the previous official term of the office of Judge of the Sixth Judicial Circuit has expired, and that, pursuant to an appointment made by the Governor June 25, 1935, he has duly qualified as Constitutional Circuit Judge in and for the Sixth Judicial Circuit for a term of six years commencing July 30, 1935, subject to confirmation of the Senate, under Section 45 of Article V of the Constitution, and Chapter •17085, Acts of 1935.

The Attorney General moved for a judgment of ouster against the Respondent, John U. Bird, upon the ground that he has not by his plea or return shown any lawful right or authority to hold or exercise the office of Constitutional Judge of the Sixth Judicial Circuit of the State of Florida.

The question is: Does a Judge of a Judicial Circuit who, under Section 8, Article V, of the Constitution, had been appointed by the Governor and confirmed by the Senate for a term of six years, continue in office under Section 14, Article XVI, of the Constitution, after the expiration of his official term, until his successor as Judge of the Judicial Circuit is appointed by the Governor and 'confirmed by the Senate, and is duly qualified thereunder, or does the mere expiration of the official term of the duly appointed and confirmed Judge of the Sixth Judicial Circuit, where a successor has not .been duly appointed and confirmed, create a vacancy in the office under Section 7 of Article IV of the Constitution, and Sections 461 (396) and 464 (399) C. G. L., or other law, which the Governor is by law authorized to fill by appointment without confirmation by the Senate, the Senate not being in session when the term ended, though the Senate was in regular biennial session during the month before the term expired ?

The selection of officers to exercise delegated governmental power is a sovereign function, which is not performed by the electorate, may, by express provisions of law be conferred upon officials or tribunals. Authority to appoint officials is not inherent in the general powers of any. department of the government, and must be duly conferred before it can be lawfully exercised. When such delegated authority is conferred, it should be exercised strictly within the terms, limitations, and intendments of the delegating language used as judicially interpreted. This is imperatively the rule of interpretation, where the authority to select official members of one department of the government, is delegated to a member or members of one or both of the other departments; and when, as in this State, the Constitution expressly provides that “no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for in the Constitution.” Art. II, Constitution of Florida. Authority conferred upon the Chief Executive to appoint a Circuit Judge, who is a member of the Judicial Department, is a power appertaining to the Judicial Department; and the nature and extent of the delegated power must be “expressly provided for by the Constitution,” as is done in Section 7, of Article IV, Section 34 of Article HI, and Sections 8, 35, 42, 43 and 45 of Article V. The classes of cases in which the specially delegated power is to be exercised need not be expressly stated in the Constitution, though they should be stated in or recognized by statutes enacted pursuant to organic provisions. See Section 7 of Article IV of the Constitution, which refers to statutes. See also Sections 461 (396)-464 (399) C. G. L., enacted to effectuate such organic provisions as Section 7 of Article IV.

In making Executive appointments to fill vacancies in office under the Constitution, the Governor exercises delegated power which must be exerted within the limits prescribed by law. The Governor has the right to determine for himself, or upon the advice he has a right to ask by Section 13 of Article IV of the Constitution, whether a vacancy exists in an office, and if so, whether the Governor is duly authorized to- exercise his Executive power to appoint an officer; yet an Executive appointment of an officer is not authorized unless a vacancy in the office exists which could legally be filled by Executive appointment, or unless the power to appoint -the officer is conferred by law upon the Governor; and the ultimate determination of the existence of the authority to appoint an officer is a judicial function in appropriate procedure.

Where the Governor has authority to appoint an officer to fill an office that is actually vacant or that is in law “deemed vacant” for a legally prescribed cause, the right of the incumbent to continue in office until his successor is duly qualified, ceases upon the due qualification of the Executive appointee.

When the Governor is authorized to appoint an officer to fill an office which is not actually vacant, but which the law deems to be vacant, the cause for making the office in law deemed to be vacant should be stated in or recognized by the written law, in order to determine from the law itself and the facts adduced, whether the appointee can legally become -“duly qualified” as a successor to the incumbent.

For the purpose of making an authorized Executive appointment to fill it, an office may be actually vacant or may by statute be “deemed vacant” for any cause stated in the statute that does not violate organic law or unlawfully affect the rights of the incumbent.

The right and duty of an incumbent to continue in office after the expiration of his official térm until his successor is duly qualified, is subject to the due exercise of expressly conferred Executive authority to fill the office by appointment when the office is actually vacant or when for stated causes the office is by law declared to be “deemed vacant.”

In interpreting provisions of law conferring upon the Chief Executive authority to appoint officers, there may be material distinctions intended by the Constitution to be observed between the appointment of Circuit Judges, constituting a portion of the Judicial Department, and County Commissioners, who are subordinate administrative officers of the Executive Department, at least as to implications that may be drawn from statutes which do not comport with the organic provision that no member of one department of the government shall exercise any powers “appertaining” to either of the other departments except in cases expressly provided for in the Constitution. Article II.

The Constitution of 1885 repeated the provisions of the Constitution of 1869 as to Judicial Circuits with one Circuit Judge for each Circuit. The term of each Circuit Judge under the Constitution of 1885 is six years. Vacancies in office are filled for the unexpired terms. Sec. 33, Art. V; Secs. 6, 7, 9, Art. XVIIIl

Original Section 8 of Article V of the Constitution contained the following:

“Successors to the Judges of the Circuit Courts in office at the ratification of this Constitution shall be appointed and confirmed at the first session of the Legislature after such ratification.”

This was done; and commissions to the Circuit Judges under such appointments and confirmations were issued and dated in May and June of 1887 for terms of six years each. Regular sessions of the Legislature are for sixty days, beginning on the first Tuesday after the first Monday in April of every odd numbered year. Extra sessions convened by proclamation of the Governor may extend to twenty days.

The last quoted provision and the practice thereunder established the procedure under the Constitution of 1885, by which the Governor has regularly appointed successors to Circuit Judges during the session of the Legislature next preceding the expiration of the official terms, and has regularly transmitted to the Senate for confirmation the names of such appointees to succeed the Circuit Judges whose terms would expire before the next regular session of the Legislature. The six-year terms of the successors to the Judges of Judicial Circuits begin with the dates that correspond with the six-year cycle which began with the first commissions issued to Circuit Judges in May and June of 1887. As additional Judicial Circuits and additional Circuit Judges therefor were established under amended Section 35, Article V, Constitution, the Judges of the additional Judicial Circuits had terms beginning so as to expire along with the terms of the. other Judges of Judicial Circuits. Sec. 8, Art. V, as amended in 1902; Advisory Opinion, 76 Fla. 649, 80 So. 519; Advisory Opinion, 78 Fla. 5,-82 So. 612.

As elective officers whose full terms begin on the first Tuesday after the first Monday in January after their election, are elected at the general elections held on the first Tuesday after the first Monday in November of even numbered, years, so appointive officers whose terms begin during or after a regular session of the Senate, should be appointed and confirmed at the session of the Senate next preceding the beginning of the terms. This is the manifest intent of the Constitution. The Constitution does not contemplate that appointments of successors to Circuit Judges should be deferred until the terms expire, for that would defeat the command of the organic law that Circuit Judges “shall be appointed by the Governor and confirmed by the Senate.” Appointments and confirmations of officers are, by necessary intendment of the Constitution, required to be made during the session next preceding the expiration of the official terms; and this has been the established procedure under the Constitution of 1885.

The cycle terms of the Additional Circuit Judges -authorized by statute under Section 43 of Article V, began on the dates of the commissions issued under the first appointments. If the first appointment of a Circuit Judge is made when the Senate is not in session, it is made by the Governor without confirmation as is expressly authorized by paragraph 6 of Section 461 (396) C. G. L., and also expressly authorized by the statute creating the office. See Sec. 4770, et seq., C. G. L. An Executive appointment of a Circuit Judge is in law until the end of the next ensuing session of the Senate under Section 464 (399) C. G. L.; and at such ensuing session of the Senate an appointment and confirmation should be made, not for another six-year term, but for the remainder of the current term as required by Section 33 of Article V, which section was incorporated into the Constitution of 1885 to change the rule announced in Advisory Opinion to the Governor, 16 Fla. 841, that “where the term of an office is fixed by the Constitution, each succeeding incumbent, appointed in accordance with the Constitution, holds the office for the full term.”

See State, ex rel., v. Amos, 101 Fla. 114, 133 So. 623.

The Constitution provides that the State shall be divided into Judicial Circuits and that one Circuit Judge shall be assigned to each Circuit; that additional Circuit Judges may be provided for in Circuits according to population; that Circuit Judges and Additional Circuit Judges shall be appointed by the Governor and confirmed by the Senate and shall hold their offices for six years. Secs. 8, 35, 42, 43, and 45, Art. V; that all State officers shall continue in office after the expiration of their official terms until their successors are duly qualified, Sec. 14, Art. XVI; that when any office from any cause shall become vacant, and no mode is provided by this Constitution or by the laws of the State for filling such vacancy, the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term, Sec. 7, Art. IV. See Sec. 34, Art. Ill, Secs. 461 (396)-464 (399) C. G. L., Sec. 33, Art. V, as to the periods for which appointments to fill vacancies' in office shall be made. See also Secs. 6, 7, and 9, Art. XVIII, as to filling vacancies in elective offices.

The Constitution provides that Circuit Judges “shall be appointed by the Governor and confirmed by. the Senate.” Secs. 8, 35, 42, 43, Art. V. Such provision includes (1) the initial appointment and confirmation of Circuit Judges; (2) - the appointment and confirmation of successors to Circuit Judges whose terms will expire before the next regular session of the Senate, Advisory Opinion, 101 Fla. 1510; (3) the appointment and confirmation of Circuit Judges which exist when the Senate is in session, Advisory Opinion, 45 Fla. 154, 34 So. 571, and (4) the appointment and confirmation of successors to Circuit Judges for the remainder of the current terms, who had been appointed by the Governor when the Senate was not in session to fill vacancies in the offices until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed by the Senate, Advisory Opinion, 45 Fla. 154, 34 So. 571.

The Constitution also makes separate and distinct provisions for Circuit Judges to be appointed by the Governor without the confirmation of the Senate, in order to fill vacancies which occur in offices including those of Circuit Judges, when the Senate is not in session. Section 7 of Article IV provides that “when any office from any cause, shall become vacant, and no mode is provided by the Constitution or by the laws of the State for filling such vacancy, the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term.” The Gov-i ernor is authorized to fill vacancies in office only when “no other mode is provided”; and an Executive appointment, to fill a vacancy for the unexfired term of the office, is authorized only when no other provision of law is applicable. See Section 33 of Article V, Section 6 of Article XVIII, Sections 464 (399) C. G. L. Section 7 of Article IV of the Constitution contemplates that statutes shall prescribe causes of vacancies in office and provide for filling such vacancies. Under the Constitution and statutes, the office of Circuit Judge may “become vacant” (1) when there is' an actual vacancy in the office, as by death, resignation, retirement, or removal from office, Sec. 29, Art. Ill, Sec. 33, Art. V, Sec. 461 C. G. L., or (2) by impeachment, Sec. 34, Art. Ill, or (3) the office may by law be “deemed vacant” as to the new term when a Circuit Judge dies after being appointed and confirmed and before taking the office, or (4) when the appointed Judge neglects or refuses to qualify according to law or refuses to accept the office, or (5) when the incumbent is convicted of a felony or an offense involving the violation of his official oath, or (6) when the office of Circuit Judge as 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, Sec. 461 C. G. L. See also Secs 4770, et seq., C. G. L., Advisory Opinion, 93 Fla. 1024, 113 So. 115. Section 464 (399) C. G. L., authorizes Executive appointments to fill vacancies in the classes of cases stated in Section 461 (396) C. G. L., “and in all other cases in which a vacancy” in office “may occur,” but this general provision does not cover this case.

The words, “from any cause,” as used in Section 7 of Article IV of the Constitution mean any cause which renders the office actually vacant or any cause for which the office may by statute' or organic law, be declared to be vacant for the purpose of filling the office as for a vacancy. See Sec. 7, Art. VIII, Sec. 34, Art. Ill, Secs. 462, 463 C. G. L. In all the causes or cases except one as they are stated in Constitution and statutes, for which or in which an office “shall become vacant,” or “shall be deemed vacant,” the predicate relates to the incumbent or to the person chosen as successor. The exception is the sixth paragraph of Section 461 (396) C. G. L., viz.: “When any office created or continued by the Constitution or laws shall not have been filled by election or appointment under the Constitution or laws creating or continuing such office.” This alone among the prescribed cases in which an office “shall become vacant” or “shall be deemed vacant,” has relation to the failure of the designated authority to elect or appoint an officer and not to the officer; and if the law intended to make the expiration of an official term cause a vacancy in office when a successor has not been chosen in the usual mode for filling the office, it would have been so stated in the law, particularly in view of the new organic provision that the incumbent “shall continue in office,” contained in Section 14 of Article XVI, and not theretofore a part of the law of this State. Section 14 of Article XVI comports with the other related provisions of the Constitution of 1885 restricting appointments to office; and was intended to have due effect in determining whether an office has “become vacant.” This is so even though Circuit Judges are now appointed by the Governor and confirmed by the Senate as under the Constitution of 1868. Section 14 of Article XVI, being a new provision contained in the Constitution of 1885, should be interpreted with other related provisions of the Constitution and statutes enacted thereunder, to effectuate the definite purpose of the Constitution of 1885, to require constitutional officers to be elected at the polls or appointed by the Governor and confirmed by the Senate. “The Constitution clearly contemplates joint action by the Governor and the Senate in the matter of these appointments when possible and as soon as possible.” Advisory Opinion to the Governor, 64 Fla. 16, 59 So. 782.

The words, “and in all other cases in which a vacancy may occur,” as used in Section 464 (399) C. G. L., have relation to cases and causes of vacancies in office which appear in the Constitution, such as those in Section 7 of Article VIII, Section' 15 of Article IV, Section 34 of Article III, and in Sections 462, 463 C. G. L., and other stat-' utes; and possibly to cases of actual vacancies in office not stated in the written law, which deprive the office of any legal incumbent. But the Constitution contemplates that causes which do not produce actual vacancies in office but for which by law an office “shall become vacant” or “shall be deemed vacant,” are to be prescribed by law, so that the authority to make Executive appointments may thereby be expressly conferred to be exercised in stated classes of cases, as contemplated by the Constitution. Section 7 of Article IV, and Section 14 of Article XVI and related statutes, are intended to operate upon prescribed causes of vacancies in office or upon actual vacancies; and the right and duty of the incumbent to continue in office and the rights of the intended successor being involved, they are entitled to be advised by law of the causes of vacancies in office which are designed to affect the rights of incumbents and successors in office. The expiration of an official term'where a successor has not been duly chosen, does not cause an actual vacancy in the office because the incumbent “shall continue in office” until his successor is “duly qualified,” Sec. 14, Art. XVI, Constitution.

The only prescribed cause for which an office “shall be deemed vacant” that does not relate to the incumbent or to the intended succéssor, is the sixth paragraph of Section 461 (396) C. G. L., quoted above, in which situation there is no incumbent and no successor because the office in such case has never been filled. And that provision is not applicable in this case because the office of Circuit Judge of the Sixth Circuit remains as previously established, and has not been abolished or discontinued or created or continued by any law. Section 45 of Article V, and Chapter 17085, Acts of 1935, are designed “to make effective the re-apportionment and reduction of Judicial Circuits and Circuit Judges.” Where Judicial Circuits' and the offices of Judges of the Judicial Circuits remain as they were before Section 45 of Article V was adopted November 6, 1934, such offices are not created or continued, but remain as theretofore established, because they have not been discontinued. An office is not created or continued by a recognition of it, if by intendment of law it remains as formerly created until it is' discontinued or abolished. The Sixth Judicial Circuit and the office of Judge of the Sixth Judicial Circuit or Circuit Judge of the Sixth Judicial Circuit, have not been altered or abolished, and they remain as they were prior to November 6, 1934. The mere change in the date when the new six year terms begin so as to make them uniform as intended by Section 45 of Article V and Chapter 17085, does not operate to continue offices that are permanently established and have not been discontinued; but it is a recognition that the office remain as theretofore established.

Section 14 of Article XVI provides that “all State, county, and municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified.” This organic provision, first adopted in 1885, prescribes a duty as well as a substantial right of an incumbent at the expiration of his official term to continue in office until his successor is “duly qualified.” Its purpose is to prevent a vacancy in office except in classes of cases or for causes as may be provided by law. There is no provision of law that an office “shall become vacant” or “shall be deemed vacant” because of an expiration of an official term when the successor to the incumbent has not been elected or appointed by the mode provided by law for filling the office. And a legal vacancy for that cause cannot be implied or inferred from any provisions of the written law, even if such a provision is not completely negatived as to the offices of Circuit Judges' by the organic provisions that “Circuit Judges shall be appointed by the Governor and confirmed by the Senate,” and that all State officers “shall continue in office after the expiration of their official terms until their successors shall be duly qualified.” An Executive appointment of a Circuit Judge is the exercise by the Governor of a power appertaining to the Judicial Department; and such power must be expressly provided for and strictly followed to preserve the required separation and relationship of the powers of government. Article II of the Constitution.

The words “duly qualified” as used include more than the giving of bond or taking the oath of office. There must be a legal appointment or a legal election to give title to the office before an officer can be “duly qualified” to assume the office.

An officer cannot be “duly qualified” as a successor in office unless he has been legally elected or appointed, therefore the words, “duly qualified,” as used in Section 14 of Article XVI of the Constitution mean duly elected or appointed and qualified. Where the law creating an office does not authorize it to be filled by Executive appointment, the Governor is authorized to appoint to the office only when there is an actual or a duly declared vacancy in the office and there is no other mode provided for filling the vacancy.

The statute authorizes an Executive appointment to fill a declared vacancy in an office that has' been created or continued, and not filled by the mode provided for filling such office; but the statute does not authorize an Executive appointment to fill an office as for a vacancy therein when a term of an office expires and a successor to the incumbent has not been elected or appointed and confirmed, as may be required for filling regular terms in the office. This is consistent with the operation of Section 14 of Article XVI of the Constitution providing that the incumbent “shall continue in office” after the expiration of his term until his successor is “duly qualified.” Where under the Constitution an officer continues in office after the expiration of his official term, Ee continues as a de jure officer subject to the successor in office becoming “duly qualified.”

If a statute expressly provides that upon the expiration of an official term when a successor to the incumbent has not been duly elected or appointed and confirmed as may be required by law for filling the office, the office shall be deemed vacant, or that in such case the office may be filled by Executive appointment, a successor could be duly qualified to hold the office under an expressly authorized Ex ecutive appointment; and Section 14 of Article XVI would not authorize the incumbent to continue in office after the legally appointed successor is duly qualified. An incumbent who under Section 14 of Article XVI “shall continue in office,” is' a de jure officer subject to be superseded by a “duly qualified” successor, that is, a successor who is legally elected or appointed and qualified.

The words, “duly qualified,” as used in Section 14 of Article XVI, have relation to matters that may legally-prevent successors from becoming “duly qualified” to fill the office; and the organic command that the incumbent “shall" continue in office” after the expiration of his official term until his' successor is “duly, qualified;” as well as Section 7 of Article V, contemplates that vacancies in office shall be defined by law and that appointments to fill vacancies in office shall be expressly provided for by law. And the law expressly provides that executive appointments to fill vacancies in elective offices shall be until the election and qualification of a successor at the next general election, or.if an office is to be filled by appointment and confirmation, until the end of the next session of the Senate, or for the remainder of the term if the term ends before the next election or before the next session of the Senate. These provisions are limitations upon the term for which an Executive appointment may be made in favor of elections and of appointments with Senate confirmations.

Considered with the organic and statutory provisions for choosing officers for full terms and to fill vacancies in office, the words, “duly qualified,” as used in Section 14 of Article XVI of the Constitution of 1885, mean qualified in the manner provided by the law after an election or an appointment and confirmation according to the mode by which the particular officer is to be chosen and commis sioned under the law applicable in the case. An officer can become “duly qualified” under an Executive appointment (1) when such appointment is expressly authorized by law for filling the office, or (2) when an actual vacancy in the office exists, or when a vacancy in office is duly declared by statute to exist, for some cause stated in the Constitution or statutes and no other mode is provided by law for filling such vacancy. Secs' 7, 15, 16, Art. IV; Sec. 34, Art. Ill; Sec. 27 of Art. Ill; Sec. 7, Art. VIII; Secs. 461-464 C. G. L.

Sec. 14 of Article XVI of the Constitution does not operate to prevent an Executive appointee from becoming duly qualified to fill an office after the expiration of the incumbent’s official term, where the office is actually vacant, or is by law declared to be “deemed vacant,” or to have “become vacant,” or when the Executive appointment to fill the office is expressly authorized by law. Secs. 7, 15, 16, Art. IV; Sec. 7, Art. VIII; Secs. 27, 34, Art. Ill, Constitution. Secs. 461-464, 2421 C. G. L.

. Where the law is' duly complied with in making Executive appointments to fill offices' or to fill vacancies in office, and the appointees comply with the provisions ol law regulating the issue of commissions to officers, such Executive appointees may be “duly qualified” as successors to the incumbents where there is no question duly prosecuted as to the eligibility of the appointees. In such case Section 14 of Article XVI is not intended to be applicable after the appointee is- “duly qualified.”

In view of all the related provisions of the Constitution and of the manifest intent of the organic law, the words of Section 14 of Article XVI, that an officer shall continue in office after the expiration of his officiál term until his successor is duly qualified, have the same meaning and effect as if the words had been “until his successor is elected or appointed and qualified!’

A Circuit Judge may become duly qualified under an Executive appointment without confirmation where such authority to appoint is conferred by the law, as' where the office is created and is vacant because it has never been filled, or where there is an actual or a prescribed statutory vacancy in the office, or where an Executive appointment is expressly authorized as in Section 34 of Article III. See Sec. 7, Art. IV; Sec. 5, Art. XVIII; Sec. 33, Art. V; Secs. 461-464 C. G. L.

In State, ex rel., v. Murphy, 32 Fla. 138, 13 So. 705, the incumbents of the offices were county administrative officers who were subject to suspension from office by the Governor. The Governor appointed successors to the incumbents but the Senate failed to act upon the appointments as made.

In this case the office is a part of the Judicial Department and the Governor is not authorized to appoint and commission a Circuit Judge without confirmation by the Senate, except to fill a vacancy when the Senate is not in session; and as the expiration of an official term does not under the law cause the office of a Circuit Judge to be deemed vacant or to become vacant, and as the office cannot be actually vacant while the incumbent continues in office under the command of the Constitution, an Executive appointment of a Circuit Judge is not authorized by law; and’ until there is an authorized appointment, the appointee cannot become “duly qualified.” See Art. II, Constitution, and Rathburn v. United States, 55 Sup. Ct. 869, 79 L. Ed. _____

Prior to the adoption on November 6, 1934, of Section 45 of Article V of the Constitution, there were in the State, twenty-eight Judicial Circuits with one Circuit Judge assigned to each Circuit, and in some Circuits there were one or more Additional Circuit Judges under Section 43 of Article V.

Section 45, Article V, of the Constitution adopted in November, 1934, provides that:

“(a) There shall be no more than fifteen Judicial Circuits of the State of Florida to be appropriately designated, numbered and defined by a suitable law enacted by the legislature for that purpose in accordance with the amendment; provided that no Judicial Circuit as defined by law hereunder shall embrace less than fifty thousand inhabitants according to the last preceding State or Federal census; and provided further, that no Judicial Circuit existing at the time of the ratification of this amendment shall be effected, altered or abolished, except in the manner provided in this amendment for carrying the same into execution, nor shall any existing Circuit Judge or State Attorney be disturbed in the tenure of his office until the expiration of any commission held by him on the date this amendment is ratified.

“(b) It shall be the duty of the Legislature at its next regular session after the amendment shall have been ratified, to pass suitable laws to carry this amendment into effect, and to make effective the reapportionment and reduction of judicial circuits and Circuit Judges hereby contemplated.

“(c) There shall be one Circuit Judge to each Judicial Circuit but additional Circuit Judges for a Judicial Circuit may be provided by law as authorized by Section 43, of amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any Judicial Circuit shall not exceed one Circuit Judge for every fifty thousand inhabitants, or major fraction theerof, after this amendment shall have been put into effect.

“(d) In Circuits' having more than one Judge the Legislature may designate the place of residence of any additional Judge or Judges.

“(e) The reapportionment of Circuits and Judges thereof hereby provided for shall become effective sixty days after the Act providing for same shall become a law.”

The main purpose of Section 45, Article V, of the Constitution was to require “the reapportionment and reduction of Judicial Circuits and Circuit Judges”; the intent being that the number of the offices' of Circuit Judges as reduced should remain as theretofore created and then existing. Section 45, Article V, does not repeal but does modify provisions of Sections 8, 35 and 43, Article V; and Section 45 co-ordinates with such Sections 8, .35 and 43 as modified. See Bd. Pub. Inst. v. Bd. Com’rs. 58 Fla. 391, 50 So. 534.

Pursuant to the above quoted organic Section 45, Chapter 17085, Acts of 1935, called Senate Bill No. 4, approved May 31, 1935, enacts':

“Section 1. That there shall be Fifteen Judicial Circuits in this State, of not less than 50,000 inhabitants according to the State census of 1935, and the county or counties composing each and the number of Circuit Judges therein, respectively, shall be as follows: * * * ‘Sixth Circuit: Composed of Pinellas and Pasco and shall have two Circuit Judges.’

“Section 3. The Circuit Judges holding office at the time of the ratification at the general election of 1934 of the amendment to Section 45 of Article V of the Florida Constitution, shall severally continue in office and exercise jurisdiction until their then existing term or terms of office- as Judge or Judges of the Circuits respectively in which the county of their resident may be included.

“Section 6. This Act and all appointments under this Act shall take effect sixty days after the same becomes a law, as provided under the said Amendment of Section 45 of Article V, Constitution of Florida; Provided that no Circuit Judge shall be appointed to any vacancy or to any term of office except as' authorized under the provisions of said Section 45 of Article V of the Constitution and this Act.”

Section 45, Article V, Constitution, and Senate Bill No. 4, Chapter 17085, Laws'of Florida, approved May 31, 1935, in substance and legal effect provide or contemplate that there shall be only fifteen Judicial Circuits, each Circuit embracing not less than fifty thousand inhabitants'; that there shall be one Circuit Judge for each Judicial Circuit; that one Additional Circuit Judge may by statute be provided for in Judicial Circuits for each additional fifty thousand inhabitants or a major fraction thereof; that the offices of one Judge for each Judicial Circuit and of the number of Additional Circuit Judges as apportioned in the Circuits by the statute under the organic section, shall remain in existence; that any existing Circuit Judge in a Judicial Circuit may be appointed or reappointed Judge of the Judicial Circuit or additional Circuit Judge in the Circuit to make the required number of Judges in the Circuit; that upon the statute becoming a law, there shall be duly appointed and confirmed the authorized number of Circuit Judges for each Judicial Circuit; that the appointments' of Circuit Judges apportioned by the statute shall be for cycle terms of six years; to begin sixty days after the statute becomes a law, such date being July 30, 1935, the Act being approved by the Governor, May 31, 1935, thereby then becoming a law. Advisory Opinion to the Governor, 120 Fla. 142, 162 So. 346; That Circuit Judges in office when Section 45 of Article V of the Constitution was adopted at the general election held November 6, 1934, and who are not appointed or reappointed Circuit Judges' among the reapportioned Circuit Judges, shall not be disturbed in the tenure of their offices respectively until the end of their respective terms of office; and Section 45, Article V, and the statute contemplate that if in any Judicial Circuit the apportioned number of Circuit Judges are not duly appointed by the Governor and confirmed by the Senate at the session of the Legislature when the Act becomes a law, the Circuit Judges in any of the Circuits who were in office in such Circuits when Section 45, Article V of the Constitution was adopted or ratified at the general election held November 6, 1934, shall continue in office in the Circuit until the reapportioned number of Circuit Judges shall be duly qualified in such Circuits; and that if any of the Circuit Judges in commission on November 6, 1934, are not reappointed and confirmed as Circuit Judges reapportioned and appointed and confirmed under Section 45, Article V, and the statute enacted thereunder, they shall remain Circuit Judges until-the end of the terms of their respective offices, unless such offices become vacant by some means recog'nized by the law before the end of the terms respectively.

The statute, Senate Bill No. 4, Chapter 17085, Laws of Florida, approved May 31, 1935, provided for one additional Circuit Judge in the fourth Judicial Circuit more than the number of Additional Circuit Judges that were in the Circuit prior thereto. ■ Such added Circuit Judge is authorized by Sections 43 and 45, Article V, of the Constitution, and the statute intended that such added Circuit Judge should be appointed and confirmed under Section 8, Article V, for a cycle term of six years to begin on the same day that other appointments under the Acts do; i. e. July 30, 1935.

In view of the express commands of the Constitution that Circuit Judges shall be appointed by the Governor and confirmed by the Senate, and that all State officers shall continue in office after the expiration of their official terms until their successors are duly qualified, and in consideration of the provisions of Section 7, Article IV, of the Constitution, and Sections 461 (396) -464 (399) C. G. L., that the Governor alone may appoint officers to fill vacancies in office, and that appointments to fill vacancies in the offices which require confirmation by the Senate, shall be by the Governor to hold until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed; and as an Executive appointment of a Circuit Judge is the exercise of power “appertaining” to the Judicial Department, which is expressly delegated and may be exercised only as is expressly provided for by controlling law; and as there is no statutory or other law declaring an office to be deemed vacant or to become vacant after the failure to appoint or to confirm a successor to an office when the Senate was in session, or upon the mere expiration of the official term of the incumbent whose appointment, except to fill a vacancy when the Senate is not in session, is required to be confirmed by the Senate; and as Circuit Judges are subject to impeachment and not to Executive suspension, the manifest intent of the applicable organic and statutory provisions is that the mere expiration of the term of office of a Circuit Judge who has' been duly appointed and confirmed and who under the Constitution “shall continue in office” after the expiration of his official term until his successor is “duly qualified,” does not create a vacancy in the office of Circuit Judge, where the incumbent is in office when the term expires and continues in office after the expiration of his official term, and an appointment of a successor to such Circuit Judge has not been made and confirmed, and the office has not in fact become actually vacant or is not declared by law to become vacant. An Executive appointment of a Circuit Judge to fill a vacancy in office is the exercise of a power “appertaining” to the Judicial Department, and the occasions for the exercise of the particular power must be expressly provided for by the Constitution.” Art. II, Constitution.

This is so because the office is Judicial and when created was required to be filled and was filled by an appointment by the Governor and a confirmation by the Senate, with a command to the incumbent given by the Constitution 'to continue in office after the expiration of the term until his successor is duly qualified; and, unless it becomes vacant, the Governor cannot fill the office of Circuit Judge by appointment without confirmation; and as neither the Constitution nor the statutes' provide that an office shall become vacant upon a failure to appoint or to confirm a successor to thé incumbent, or upon the expiration of the incumbent’s official term, the mere expiration of the official term of a Circuit Judge does not cause a vacancy in the office which the Governor alone may fill, when the Senate is not in session, so that the appointee may legally secure the office as against the incumbent who under the Constitution, “shall continue in office” until his successor is duly qualified, where the incumbent has been confirmed, unless the appointee is appointed to fill a vacancy in the office. There is no vacancy in the office of Circuit Judge while the incumbent continues in office after the expiration of his official term, until his successor is appointed and confirmed as the incumbent was, the office not having otherwise become vacant or by statute “deemed vacant.” Under the Constitution Circuit Judges are a part of the Judicial Department, while the Governor is the “Chief Magistrate” of the Executive Department in whom the Supreme Executive power of the State is vested, and he can exercise no power “appertaining to” the Judicial Department “except in cases expressly provided for by the Constitution.” Art. II, Constitution.

The intendment of the' Constitution is' that an Executive appointment of a Circuit Judge must be confirmed by the Senate before the appointee can hold the office as against the incumbent who has been confirmed for the expired term and who continues in the office after the expiration of his term by virtue of Section 14, Article XVI of the Constitution. Where an additional Circuit Judge may be provided for under Section 43, Article V, of the Constitution, the Governor may make the first appointment without the confirmation of the Senate under the statutes creating the office and under paragraph 6, Section 461 (396) C. G. L., when the Senate is not in session. Advisory Opinion, 101 Fla. 1510, 136 So. 623.

In this case no appointment for a successor to Judge John U. Bird, the Judge of the Sixth Judicial Circuit, was transmitted to, or confirmed by, the Senate at the regular session in April and May, 1935, and the mere expiration of. the term in June, 1935, does not under the law create a vacancy in the office of Circuit Judge which can be filled by Executive appointment; therefore the incumbent continues in office after the expiration of his official term in June, 1935, until his successor is duly qualified to take the oath of office for the remainder of six year term from July 30, 1935, after an appointment by the Governor and confirma tion by the Senate, or to fill a vacancy in the office upon an Executive appointment.

The office held by Judge Bird remains in existence as it was before Section 45, Article V, was adopted, and before Chapter 17085, Senate Bill No. 4, was enacted; and as Judge Bird’s term of office ended in June, 1935, and as a successor to him in that office has not been appointed and confirmed; and therefore cannot become “duly qualified” as a successor to Judge Bird, he, as incumbent, may continue in office until his successor is duly qualified, even though the statute enacted to make Section 45, Article V, effective, did not go into effect until July 30, 1935. It became a law May 31, 1935, when the Legislature was in session, and an appointment and confirmation were authorized under the statute, the appointment to take effect sixty days after the act became law. No appointment and confirmation of a successor as contemplated by the organic provisions and the statutes have been made, so Judge Bird is continued in office by Section 14, Article XVI, from the expiration of his term in June, 1935, until his successor is duly qualified or until the office becomes vacant in fact or is “deemed vacant” from one of the causes stated in the written law.

One effect of Section 14, Article XVI, considered with Section 5, Article V, adopted November, 1934, and Chapter 17085, Acts of 1935, Senate Bill No. 4, approved May 31, 1935, was to extend the then current terms of Judges of the Judicial Circuits until “sixty days after the Act providing for” for the “reappointment of Circuits and Judges thereof” “shall have become a law,” paragraph “e,” Section 45, Article V, which date is July 30, 1935.

■ As during the 1935 session of the Legislature there was no appointment by the Governor and confirmation by the Senate of a Judge of the Sixth Judicial Circuit as contem plated by Section 45, Article V, of the Constitution, adopted in November, 1934, and as contemplated by Chapter 17085, Acts of 1935, for the term beginning July 30, 1935, and as the then incumbent of the office of Judge of the Sixth Judicial Circuit had been appointed by the Governor and confirmed by the Senate for the term ending June, 1935, Section 14 of Article XVI of the Constitution in legal effect provides that such Judge “shall continue in office” after the expiration of his official term until his successor is “duly qualified.” And while he so continues in office and the office does not “become vacant,” a successor to such Judge can be duly qualified only after being appointed .by the Governor and confirmed by the Senate. If a vacancy occurs in the office, the Governor, under the provisions of the Constitution and the statutes may fill such vacancy by appointment until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed and consented to by the Senate, Section 7, Article IV, Constitution, Section 464 (399) C. G. L., or if a vacancy occurs in the office between a session of the Senate and the end of the term of the office, the Governor may “fill such vacancy by granting a commission for the unexpired term” under Section 7, Article IV of the Constitution.

On August 21, 1935, there was in existence in the Sixth Judicial Circuit an office of additional Circuit Judge which had become vacant by the long previous resignation of Judge O. L. Dayton.

The commission issued to Judge Viney on August 21, 1934, was' as Additional Circuit Judge of the Sixth Judicial Circuit to fill a vacancy in the office from that date until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed by the Senate, Section 7, Article -IV; Section 464 (399) C. G. L. Judge Viney was in commission as Additional Circuit Judge when Section 45 of Article V of the Constitution was adopted November 6, 1934; and under Section 45, Article V of the Constitution he “shall not be disturbed in the tenure of his office until the expiration of his commission,” paragraph (a), Section 45, Article V, of the Constitution, adopted November 6, 1934; and, .under Section 3, Senate Bill No. 4, Chapter 17085, Acts of 1935, shall continue in office for the remainder of the then existing term of office. These provisions preserved the current term of the office of Additional Circuit Judge in the Sixth Judicial Circuit to the incumbent to the end of the term unless the incumbent should resign or the office otherwise become vacant. Judge Viney did resign as Additional °Ci'rcuit Judge but such resignation was in law as well as in fact contingent upon receiving an appointment as Judge of the Sixth Judicial Circuit as successor to Judge Bird. As' the appointment he did receive was not effective because his appointment had not been confirmed and there was no actual or duly declared vacancy in the office of Judge of the Sixth Judicial Circuit, his resignation as Additional Circuit Judge was not effective. He therefore may continue in office as Additional Circuit Judge of the Sixth Judicial Circuit under Section 45 of Article V, and Chapter 17085, until the end of the term into which he was appointed on August 21, 1934, unless' he is duly appointed a Circuit Judge under Section 45 of Article V and Chapter 17085 or unless he in some way relinquishes his right to the office or the office otherwise becomes vacant. The office of Additional Circuit Judge of the Sixth Judicial Circuit which was held by Judge O. L. Dayton continues, though Judge Dayton had resigned therefrom ; and the office had not been discontinued when Judge Viney was appointed to fill the vacancy in the office caused by the resignation of Judge Dayton. If such office becomes' vacant or the current term expires, that office will be discontinued because of the operation of Section 45, Article V, and Chapter 17085, Laws of 1935. The law and not Judge Viney’s commissions control in determining his term in office. State, ex rel., v. Amos, 101 Fla. 114, 133 So. 623; State, ex rel., v. Collins, 101 Fla. 370, 134 So. 595.

Under Section 45, Article V, and Chapter 17085, Circuit Judge T. Frank Hobson, who on November 6, 1934, held a commission as' Additional Circuit Judge of the Sixth Judicial Circuit, continues in office, unless the office becomes vacant in fact or in law1, until the expiration of his present term, if he is not appointed and confirmed a Judge of the Sixth Judicial Circuit under Section 45, Article V, and Chapter 17085, for the remainder of the current term of six years from July 30, 1935, as was done in the first Judicial Circuit under similar circumstances. In re Advisory Opinion to the Governor, 120 Fla. 142, 162 So. 346.

Judgment of ouster denied.

Terrell, Brown, Buford and Davis, J. J., concur.