State ex rel. Claar v. Branning , 85 Fla. 61 ( 1923 )

Whitfield, J.

An alternative writ of mandamus issued by this court in effect alleges that pursuant to provisions of the constitution and statutes the Governor had by executive order assigned the Judge of the Seventeenth Judicial Circuit to hold a portion of the regular Fall Term of the Circuit Court for Dade County in the Eleventh Judicial Circuit from January 4th to January 17th, 1923, both inclusive; that the said assigned Circuit Judge did on January 4th, 1923, begin the holding of the Circuit Court in Dade County under the executive order; that thereafter, on January 4th, 1923, the relators presented to the resident Circuit Judge in Dade County a demurrer to an amended declaration in an action in a case of Vance V. Claar then and there pending in the Circuit Court for Dade County, with a request that said resident Circuit Judge do hear and determine sueh. demurrer, but the said resident Circuit Judge though not disqualified did then and there decline and refuse to hear and determine the same upon the ground that he had no jurisdiction of said matter, and still refuste to hear and determine said demurrer.

The alternative writ commanded the respondent Circuit Judge to hear and determine the demurrer or to show cause for not doing so. By a return the respondent admits the allegations of the alternative writ, and respondent moves to quash the alternative writ on grounds that the alternative writ shows the Judge of the Seventeenth Judicial Circuit is now in Dade County holding a portion of a term of the Circuit Court under an executive order and that Section 3061 Revised General Statutes, 1920, in so far as it provides that while a Circuit Judge of one judicial circuit under executive order is exercising the jurisdiction of a Circuit Judge in a county of another judicial circuit, the resident Circuit Judge “is not deprived of or affected in jurisdiction other than to the extent essential so as not to conflict with the authority of the temporarily assigned Circuit Judge,” is unconstitutional and void, because the same is in conflict with Section 8 of Article Y of the Constitution of the State of Florida.

Sections 3060 and 3061 Revised General Statutes, 1920, first enated as Chapter 6900 Acts of 1915, are as follows:

“3060. Jurisdiction of Circuit Judge assigned'to another circuit. — When a circuit judge is by executive order assigned to hold one or more terms or parts of terms in a circuit where he does not reside, the judge so assigned shall, for the particular case or cases or class of cases or during the term or part of term named or specified in the assignment, have complete jurisdiction when in the county to which he is assigned as if he were a resident circuit judge; and such jurisdiction shall bé additional to and concurrent with and not exclusive of the resident circuit judge’s continued jurisdiction over the circuit wherein he resides; and such jurisdiction shall continue when necessary for the complete disposition of cases by motion in due course after verdict or in settling a bill of exceptions presented in due course. ’ ’

“3061. Jurisdiction of resident circuit judge as affected by an assigned circuit judge. — When a circuit judge is assigned to another circuit, none of the circuit judges in such other circuit shall, because of such assignment, be deprived of or affected in his jurisdiction other than to the extent essential so as not to conflict with the authority of the temporarily assigned circuit judge as to the particular case or cases or class of eases, or in presiding at the particular term or part of term named or specified in the assignment. ’ ’

It is well settled that mandamus is the-proper remedy to compel its exercise when a court refuses to exercise jurisdiction that it clearly possesses. Crump v. Branning, 74 Fla. 522, 77 South. Rep. 228; State ex rel. Hopps v. Horne, 75 Fla. 149, 77 South. Rep. 572; Ex parte Henderson, 6 Fla. 279; State ex rel. Sanchez v. Call, 36 Fla. 305, 18 South. Rep 771.

The asserted invalidity of Section 3061 Revised General Statutes, 1920, is that it conflicts with the following provision of Section 8, Art. V of the State Constitution of 1885, as amended in 1902, which organic provision was not in any way involved in the decision in State ex rel. West v. Butler, 70 Fla. 102, 69 South. Rep. 771: “The Governor may, in his discretion, order a temporary exchange of circuits by the respective judges, or order any judge to hold one or more terms or part or parts of any term in any other circuit than that to which he is assigned.” The corresponding provision of the constitution of 1868 is: “The Chief-Justice may in his discretion, order a temporary exchange of Circuits by the respective Judges, or any Judge to hold one or more terms in any other Circuit than that to which he is assigned.” In view of the differences in the two organic provisions, and of other changes in the constitution, the decision in Clark v. Rugg, 20 Fla. 861, under the quoted provision of the, constitution of 1868, that the power of the resident Circuit Judge in a county is superseded during the holding of a term of court in that county by an assigned circuit judge, is not controlling in determining the validity of Section 3061 Revised General Statutes under the organic provision first above quoted.

The Clark-Rugg case followed Bear v. Cohen, 65 N. C. 511, in which case Section 14, Art. IV of the North Carolina Constitution required the assigned judge to act “in lieu ’ ’ of the resident judge and the court expressly invoked the argument of convenience and the local rules of practice in construing the constitution, there apparently being no statute on the subject. See Corbin v. Berry, 83 N. C. 27, where a subsequent statute conferred jurisdiction on the resident judge. In Clark v. Rugg, the decision merely applied to the Constitution of 1868, as the case of Bear v. Cohen had applied a substantially different provision of the North Carolina constitution. In this case a statute enacted in 1915 under amended- Section 8 of Article V of the Constitution of 1885 is to be interpreted and applied in the light of the entire present organic law.

It is not the, purpose of the quoted amended provision of the constitution of 1885 to interfere with the jurisdiction of a resident Circuit Judge except as to matters covered by an order making a temporary assignment of another Circuit judge “to hold one or more terms or part or parts of any term” in a circuit other than that to which he is permanently assigned under the constitution, The policy of having two or more. Circuit Judges exercise jurisdiction in the same circuit at the same time is now definitely established in this State'by the adoption in 1922 of an amendment to Article V of the Constitution designated as Section 43. See Acts of 1921, p. 425.

The quoted provision of amended Section 8 of Article Y of the Constitution of 1885 does not’expressly or by fair implication forbid the exercise of his jurisdiction in any county in his circuit by. a resident Circuit Judge during the time when a judge of another judicial circuit may be exercising jurisdiction in the circuit of the resident judge, when such resident judge does not interfere with the jurisdiction of the temporarily assigned Circuit Judge while he is acting within the authority conferred by the executive order of assignment. See Thebaut v. Canova, 11 Fla. 143; Swepson v. Call, 13 Fla. 337; State ex rel. Florida Pub. Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614; Simonton v. State ex rel. Turman, 44 Fla. 289, 31 South. Rep. 821, and Chapman v. Reddick, 41 Fla. 120, 25 South. Rep. 673, for discussion of legislative powers in conferring jurisdiction on Circuit Judges. Except as inhibited by the Constitution the legislature has power to prescribe the jurisdiction of courts and of judges.

Sections 3060 and 3061 Revised General. Statutes are designed to effectuate and are not in conflict with the language or the meaning and intent of the quoted provision of amended Section 8, Article Y of the Constitution of 1885. The statute does not purport to provide for the appointment of an additional permanent Circuit Judge in a. judicial circuit under amended Section 35 of Article V of the Constitution, as did Chapter 6899, Acts of 1915, held to be invalid in State ex rel. West v. Butler, supra, but Section 3060 Reyised General Statutes merely provides for an executive order authorizing and directing a judge of one circuit ‘‘to hold one or more terms or part or parts of any term in” another circuit pursuant to amended Section 8, Article V of the Constitution.

The provisions of Section 3061, that the authority oC the Circuit Judge sent into a circuit by executive order shall not affect the jurisdiction of the resident Circuit Judge except so far as not to conflict with the authority of the assigned Judge as to the matters specified in the executive assignment, are designed to facilitate the business of the Circuit Court and to avoid conflicts of jurisdiction, which objects of the statute are consistent with the intent and purpose of the quoted organic provision of 1885 as amended in 1902 under which the statute was enacted.

In the absence of an organic limitation, the intent of the law-making power as expressed in a duly enacted statute is the controlling law of the land, and the courts have no power to annul it, but should effectuate such lawmaking intent;

Section 3061 Revised General Statutes, 1920, is not in conflict with amended Section 8, Art. V of the Constitution, and the resident Circuit Judge should give effect to the statute.

The motion to quash the alternative writ should be overruled. See State ex rel. Duke v. Wills, 49 Fla. 380, 38 South. Rep. 289; State ex rel. Turner v. Hocker, 36 Fla 358, 18 South. Rep. 767; State ex rel. Sanchez v. Call, 36 Fla. 305, 18 South. Rep. 771; State ex rel. Ross v. Call, 39 Fla. 504, 22 South. Rep. 748; State ex rel. Birmingham T. & S. Co. v. Reeves, 44 Fla. 179, 32 South Rep. 814; State ex rel. Willie v. Barnes, 22 Fla. 8.

The motion to quash the alternative writ is overruled.

Taylor, C. J., and Browne and West, J. J., concur. Ellts, J., specially concurs.