Advisory Opinion to the Governor , 128 Fla. 334 ( 1937 )

Honorable Fred P. Cone, Governor,

Capital Building Tallahassee, Florida.

Dear Governor:

We have your letter of the 26th instant as follows:

“Pursuant to Section 13 of Article IV of the Constitution of Florida, I have the honor to request yo.ur opinion upon a question affecting my constitutional duties and powers involving the appointment of a circuit judge.

“By Chapter 12436, Laws of Florida, Acts of 1927, the 24th Judicial Circuit was created. The new circuit was composed of the Counties of Citrus and Hernando, which two counties had, together with the County of Marion, constituted the 5th Judicial Circuit of the State of Florida.

“Chapter 17085, Laws of Florida, Acts of 1935, was passed by the Legislature to carry out the mandate of the people in adopting Section 45 of Article V of the Florida Constitution at the General Election of 1934. Under Section 1 of this Act, the 5th Circuit is composed of Marion, Citrus, Hernando, Lake and Sumter Counties and is allotted two circuit Judges.

“Honorable J. C. B. Koonce was appointed and confirmed as Judge of the 5th Circuit for the term of six years beginning July 3, 1935.

“At the time of the adoption of the constitutional amendment above mentioned, Honorable Fred L. Stringer held a commission asj Circuit Judge of the'24th Circuit, which commission expires the 11th day of May, 1939. The Counties of Citrus and Hernando, which formerly composed the 24th Circuit, were, under-Chapter. 17085, -included in the 5th Circuit. '

“According to the records of the Office of the Secretary of State, the first Circuit Judge of the 5th Circuit after the adoption of the Constitution of 1885 was commissioned and confirmed by the Senate June 3, 1887, for a term of six years, and at the end of each six-year cycle thereafter a new commission was issued, the last full commission issued being that to the Honorable William S. Bullock, who was commissioned on the 24th day of June, 1929, and died May 28, 1935. After the adjournment of the 1935 Legislature, the’Governor, on June 7, 1935, appointed the Honorable Robert L. Anderson to be Judge of the 5th Judicial Circuit for a period from June 7, 1935, .to June 23, 1935, being in effect the unexpired term of Judge Bullock. Judge Anderson died July 26, 1935, and there has been no appointment to succeed Judge Anderson.

“Honorable Fred L. Stringer was, on the 11th day. of May, 1927, issued a commission which was confirmed by the Senate, for a term ending on the 12th day of June, 1929. At the end of that commission no further commission was issued to Judge Stringer until the 13th day of June, 1933, ■when he was again appointed and confirmed for a term of six .years, his commission being issued for the period of years beginning on the 13th day of June, 1933, and ending on the 11th day of May, 1939.

■ “The question now arises as to whether or not a vacancy exists in the 5th Circuit and whether or not I should appoint'a Circuit Judge of the 5th Circuit and send his name to the 1937 Senate for confirmation.” "

■ Replying thereto we beg to-advise the Twenty-fourth Judicial Circuit of Florida was created under Chapter 12436, Acts of 1927, and was composed of the Counties of Citrus and Hernando which had theretofore constituted a part of - the territorial jurisdiction of the Fifth Judicial Circuit of Florida.'■ The then current term of the Judge of the Fifth Judicial Circuit expired June 3rd, 1929, which was the end of the 7th term of office of the Circuit Judge thereof. This is true because the first Circuit Judge appointed under the Constitution of 1885 was appointed and commissioned on June- 3rd, 1887, for a period of six years from that date.

When Honorable Fred L. Stringer was appointed Judge of the Twenty-fourth Circuit his appointment was for the period of the unexpired term of the Judge of the Fifth Judicial Circuit, to-wit: June 3rd, 1929. After the expiration of that term, Judge Stringer held over and performed the duties of Circuit Judge-under the provision of Sec. 14 of Art. XVI of the Constitution. When he was appointed by the Governor and confirmed by the Senate on the 13th day of June, 1933, the appointment and commission was effective until the end of the then current term only, that is until Juné 3rd, 1935. 'But by the amendment to Sec. 45 of Article V of the Constitution adopted November 6th, 1934,’ the term of Judge Stringer was extended to the date designated in the commission as the end of his term. The language of the Constitution which so extended the term is, “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.” See State, ex rel. Landis, v. Bird, 120 Fla. 780, 163 So. 248.

So it is there is no vacancy in the office of Judge of the Circuit Court of the Fifth Judicial Circuit of Florida which may now be filled by appointment by the Governor and confirmation by the Senate now in session.

Respectively submitted,

W. H. Ellis Chief Justice Glenn Terrell Armstead Brown, Rivers Buford Fred H. Davis

Justices of the Supreme Court of Florida