State Ex Rel. Davis v. Collins

Whitfield, J. .Upon the election or appointment of an officer, a commission is issued to him which is evidence of his right to hold the office; but if the -term of the officer as stated in the commission is not in accord with the terms as fixed by the applicable law, the term of the officer is governed by the law, not the .commission. Under the constitution a Judge of the Criminal Court of Record “shall be appointed by the Governor and confirmed by the Senate” and “shall hold his office for four *373 years”, section 24, Article V, and until Ms successor is “duly qualified”, section 14, Article XVI. When the office of any Judge becomes vacant, the successor to fill the vacancy shall hold only for the unexpired term. Section 33, Article V. The Criminal Court of Record for Dade County was established in 1907, and the appointment of the first Judge of the court was made in September, 1907. Such appointment under the law should have been to hold the office “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 464, Compiled General Laws; section 7, Article IV, constitution; Simonton v. State, 44 Fla. 289, 31 So. 827. Upon confirmation by the Senate of an appointment to the office in 1909, the commission should have been issued for the unexpired term which began when the first appointment was made in September, 1907, to end in September, 1911. Thereafter the appointments should have been made with reference to the four year terms ending in September in the years 1915, 1919, 1923, 1927, 1931, etc. State ex rel Hodges v. Amos decided at this term. Upon his appointment and confirmation in 1925, Tom Norfleet should have been commissioned for the unexpired term ending in September, 1927. Notwithstanding the wording of his commission that he should be Judge “for four years from the 13th day of Juné A.D. 1925”, under the law his term expired in September 1927. After such time he held over under section 14, Article XVI, of the constitution, and the appointment and qualification of Uly O. Thompson, April 1, 1929, terminated the right of Tom Norfleet under the constitution to hold the office after the expiration of the term ending in September, 1927. *374 The suspension from office of Tom Norfleet by the Governor and the non-concurrence of the Senate in such suspension were in law immaterial matters, since Norfleet’s term had expired in September 1927, and he was merely holding over under the constitution until his successor qualified. “The appointment and commission of Uly 0. Thompson in June, 1929, without a confirmation by the Senate to hold “until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed,” was in accordance with law, State ex rel. Robert v. Murphy, 32 Fla. 138, 13 So. 705. The appointment of the respondent, E. C. Collins, in January, 1930, as the successor of Uly 0. Thompson, to hold until the end of the next ensuing session of the Senate was likewise in accordance with law. Subsequent appointments and confirmations should have reference to the unexpired term ending in September 1931 and to the four year terms thereafter. Demurrer sustained. Terrell and Brown, J.J., concur. Buford, C.J., and Ellis, J., concur specially. Davis, J., disqualified.