Opinion
Opinion Filed November 23, 1927.
STATE OF FLORIDA, EXECUTIVE DEPARTMENT,
Tallahassee, November 19, 1927.
To the Honorable Chief Justice and Justices of the Supreme Court of Florida:
Section 13 of Article IV of the Constitution authorizes me as Governor to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the Constitution upon any question affecting my executive powers and duties.
Section 7 of Article VIII of the Constitution provides that I shall commission all county officers before they enter upon the duties of their offices.
Section 24 of Article V of the Constitution provides that the Legislature may establish Criminal Courts of Record in certain counties, and Section 30 of said Article V provides that when such Criminal Court of Record is established that there shall be elected by the electors of the county in which the court is held a clerk for such court who shall hold office for four years.
The Extraordinary Session of the Legislature of 1925 enacted Chapter 11,363, entitled:
"An Act to establish a Criminal Court of Record in the County of Palm Beach,"
which became effective by approval of the Governor, December 4, 1925.
On the 30th day of December, 1925, I appointed Hon. Elmore Cohen as Clerk of said Criminal Court of Record until the next general election, which was held in November, 1926, and at which election said Hon. Elmore Cohen was duly elected to succeed himself as such Clerk of the Criminal Court of Record of Palm Beach County.
On the 26th day of November, 1926, I commissioned said Hon. Elmore Cohen, to hold office until the first Tuesday after the first Monday in January, 1929.
I am now advised that I should withdraw said commission which I have issued based on said election, and issue a new commission to said Hon. Elmore Cohen for a term of four years, instead of an unexpired term of two years, dating from the general election of 1926.
Section 7 of Article XVIII of the Constitution provides that in all cases of elections to fill vacancies in office such election shall be for the unexpired term, but in this particular case, where the office of Clerk of the Criminal Court of Record was first created by a statute passed in December, 1925, I am in doubt as to whether such a situation is covered by said Section 7 of Article XVIII or by Section 30 of Article V of the Constitution, which provides:
"The Clerk of said Court shall be elected by the electors of the county in which the court is held and shall hold office for four years. . . . ."
I, therefore, request that you render me your written opinion interpreting for me said Section 30 of Article V of the Constitution with reference to the term of office of the Clerk of the Criminal Court of Record under Chapter 11,363, Acts of 1925, after such Clerk was elected by the electors of Palm Beach County at the general election in 1926, and that you advise me whether or not it is my executive duty under Section 7 of Article VIII of the Constitution relating to commissions of county officers by the Governor, to now issue to Hon. Elmore Cohen a commission as Clerk of the Criminal Court of Record of Palm Beach County for a term of four years from the general election of 1926, in lieu of his present commission which was issued by me for a term of two years from November, 1926, and also that you advise me for what term a Clerk of a Criminal Court of Record should be commissioned under Section 30 of Article V of the Constitution, in cases of first election held after enactment of the statutes creating such Criminal Courts of Record.
Respectfully submitted,
JOHN W. MARTIN, Governor.
SUPREME COURT OF FLORIDA,
Tallahassee, Fla., November 21, 1927.
The Honorable John W. Martin, Governor of Florida, Tallahassee, Fla.
Sir:
The appointment of Hon. Elmore Cohen on December 30, 1925, as Clerk of the Criminal Court of Record for Palm Beach County, under Chapter 11,363, Extraordinary Session, 1925, to hold office until the general election to be held in November, 1926, was in conformity with your executive duty under the Constitution, because, when the Criminal Court of Record was established by the Act of 1925, approved by you on December 4th following, a vacancy occurred in the office of Clerk of that Court which the Constitution required you to fill by appointment. See Section 7, Article IV Constitution; Section 12, Chapter 11,363, Laws 1925.
Upon the establishment of the Criminal Court of Record and the creation of the office of Clerk of that Court a vacancy existed in the office which, under Section 7 of Article IV of the Constitution, you should have filled by appointment until the general election of 1926, which occurred in November of that year.
In case of the creation of the office of Clerk of the Criminal Court of Record, which is to be filled by election, the term of four years does not begin to run until the date of the first election held thereafter. In this case such election was the general election of 1926. After the creation of the office it was vacant until there was an incumbent of it authorized to perform its functions. See Advisory Opinion to the Governor, 67 Fla. 423, 65 So.2d Rep. 4.
Your appointment of Mr. Cohen, therefore, to hold the office until the general election in 1926, was in accordance with your constitutional duty.
The commission which was issued by you to him on November 26, 1926, to hold the office of Clerk of the Criminal Court of Record for Palm Beach County for two years ending January, 1929, was without authority. At the general election held in November, 1926, Mr. Cohen, having been elected as Clerk of the Criminal Court of Record, became entitled to a commission, upon qualifying for the office, for the full term of four years from the first Tuesday after the first Monday in January, 1927. See Section 14, Article XVIII Constitution.
Very respectfully,
W. H. ELLIS, Chief Justice. J. B. WHITFIELD. GLENN TERRELL. LOUIE W. STRUM. ARMSTEAD BROWN. RIVERS BUFORD.