Opinion
December 3, 1956.
Supreme Court of Florida Tallahassee November 21, 1956
Honorable LeRoy Collins Governor of Florida Capitol Building Tallahassee, Florida
Dear Governor Collins:
Receipt is hereby acknowledged of your request for an advisory opinion of November 19, 1956, reading as follows:
"Honorable E. Harris Drew Chief Justice, and the Justices of the Supreme Court of Florida Supreme Court Building Tallahassee, Florida
Re: Constitutional appointive duties of the Governor of Florida.
"Gentlemen:
"Under Section 13, of Article IV of the Constitution of Florida [F.S.A.], the Governor is authorized to request the written opinion of your august body as to the interpretation of any portion of the State Constitution upon any question affecting his executive powers and duties.
"On November 6, the people of Florida, approved committee substitute for House Joint Resolution No. 810 of the 1955 regular session of the Florida Legislature [page 1229] as an amendment to our Constitution revising our entire court system and making many needed changes in our judiciary.
"Section 26(9) provides as follows:
"`There shall be an additional circuit judge for the circuit court of the judicial circuit wherein the state capital is located. Subsequent to the first Tuesday after the first Monday in January 1957, the Governor shall appoint the first judge hereunder to serve for a term expiring on the first Tuesday after the first Monday in January 1959, * * *'
"Section 26(1) provides:
"`This Article shall become effective on the first day of July 1957 * * *'
"Article 17, Section 1 of our Constitution, which sets forth a procedure of amendment has been construed to mean that an amendment adopted by a majority of the electors voting thereon becomes operative `eo instanti' upon its adoption at the general election, [In re] Advisory Opinion to the Governor [ 152 Fla. 686], 12 So.2d 876; Porter v. First National Bank, 96 Fla. 740, 119 So. 130; Perry v. Consolidated Special Tax School Dist. No. 4 in Hillsborough County, 89 Fla. 271, 103 So. 639; In re Advisory Opinion to the Governor, 34 Fla. 500, 16 So. 410.
"This section has also been construed by your body to allow an amendment to vary from this rule if the effective date is placed in the amendment setting an effective date other than the day of the general election, Correlis v. State, 78 Fla. 44, 82 So. 601.
"The amendment as adopted places a mandatory duty upon me to appoint this additional circuit judge. Although it is clear that the appointive power arises on a day certain, it is not clear from the amendment or the applicable cases as to the effective date this judge is to take office.
"Since, I must issue an appointment stating the term of office, I respectfully request your opinion on the following question:
"(a) In exercising the power of appointment under Section 26(9) of the adopted amendment, what is the earliest beginning date of such appointee's term of office?
"With kind regards, I am
Sincerely,
/s/ LeRoy Collins Governor"
There is no conflict between Section 26 (9) and 26(1) if Section 26(9) be construed, as it must, to limit the power to make the appointment to the Governor in office subsequent to the first Tuesday after the first Monday in January, 1957. You are, therefore, advised that at any time subsequent to the first Tuesday after the first Monday in January, 1957 the Governor then in office is empowered to appoint an additional circuit judge for the circuit court of the judicial circuit wherein the state capital is located. The term of such circuit judge so appointed shall commence on the first day of July, 1957.
Respectfully yours,
E. HARRIS DREW Chief Justice GLENN TERRELL ELWYN THOMAS T. FRANK HOBSON B.K. ROBERTS CAMPBELL THORNAL STEPHEN C. O'CONNELL Justices