In re the Executive Communication of October 5, 1875

| Fla. | Oct 28, 1875

His Excellency M. L. Stearns, Governor of Florida, Tallahassee, Florida:

Sir : I have the honor to submit the following reply to your communication of the 5th of October:

Section 15, Article VI, of the Constitution of 1868, was as follows: “ The Governor shall appoint as many Justices of the Peace as he may deem necessary. Justices of the Peace shall have criminal jurisdiction and civil jurisdiction not to exceed fifty dollars; but this shall not extend to the trial of any person for misdemeanor or crime. The duties of Justices of the Peace shall be fixed by law. Justices of the Peace shall hold their offices during good' behavior, subject to removal by the Governor at his own discretion.” Section lé of Article IV of the Constitution provided * * * that “ no law shall be amended or revised by reference to its title only, but in such case the act as revised, or section as amended, shall be re-enacted and published at length.”

Among the late amendments to the Constitution is the following: •

Section .15 .of Article VI of the Constitution is hereby amended so as to read as follows :

Section 15. The Governor shall appoint as many Justices of the Peace as he .may deem necessary. Justices of the Peace shall have jurisdiction in civil actions at law in eases, in which the amount or value involved does not exceed one hundred dollars; and in criminal cases their powers shall be fixed by law. Their powers, duties and responsibilities shall be regulated .by law. They may hold their ofiices for hte term of four years, subject to removal by the Governor for reasons satisfactory to him.”

This section, as amended, we thus find as a whole. The power making the amendment, following the rule prescribed for amending an ordinary act of the Legislature, instead of ordaining in exact language the change desired, states the whole law as it is to be in future, giving so much as was embraced in the old section, which was then in force, and which was still to be in force, as well as. omitting that which was to be no longer in force, and inserting that which was to be of force instead of that omitted.

The change desired was in the jurisdiction, power and term of office of Justices of the Peace. No change in the manner of appointment is made. Instead of ordaining a section making the changes desired in these respects, and in these only, the law .upon the whole subject is inserted as well as to the matter of appointment as otherwise, the purpose being to avoid any doubt as to the intention and scope of the action, and the change or amendment made. We thus have in the section as amended so much of the old law as had been in force, as was then in force, and was to be in force. This is true of such, portion of the old section as remained unchanged. As to this, portion reinserted, at no time did it cease to be law. It was not repealed and reenacted ; it was continued. That which was omitted from the old section..was no longer, to'be of force, and ceased to be law upon the adoption of the amendment; and that which was new, and for the first time ordained, was to be in future the law, instead of that taken from the original section. As a consequence from what has been said, Justices of the Peace holding commissions from the Governor, issued under that portion of the old section which was and still is the law, derive their authority and power as justices from the proper constitutional authority, and hence their appointments are still valid, unless the change in the term reaches them.

As it is within the power of the authority in which is vested the power to amend the Constitution to change the jurisdiction, duties and' term of office of a constitutional officer, it follows, also, from what has been said, that while the authority to exercise the duties of Justices of the Peace still remains with those appointed under the original Constitution, yet they have such power and jurisdiction only as the amendment confers. As to the extent of the change the old law has ceased to be operative.

The original clause as to the tenure of office of Justices of the Peace' provided that they should hold their offices during good behavior, subject' to removal by the Governor at his discretion. The amendment provides that they shall hold their offices for the term of four years, subject to removal by the Governor for reasons satisfactory to him. There cannot be a Justice of the Peace holding office for the time prescribed by- the old Constitution, or with such tenure, because that provision has ceased to have any effect. There is now no law for any other tenure than that of four years. Prom what time is this holding to be calculated; when does it begin ? The Constitution makes no exception. The same- rule must be ápplied to all Justices of the Peace.

There is nothing in the amendment tó save Justices of the Peace in commission under the’ old' tenure from the application of the same rule to their cases - as applies to future appointments. What is that-rule ?- When the-commission of a Justice of the Peace is signed and-'seale'd," all that is necessary to Ms investiture of the office is complete. Under the practice in this State, all the conditions as to taking oaths, &c., are complied with before the commission issues. To him, upon the signing and sealing the commission, belongs the office. He holds it within the meaning of the Constitution from that date. In the language of the Supreme Court of the United States, “ the transmission of the commission to the officer is not essential to his investiture of the office.” This I state as a general rule, applicable to officers of this class who accept and enter upon their duties. As a result from what has been said, it follows that all Justices of the Peace who had been in commission for four years at the time this amendment became operative as lav/, ceased to be such justices, the time for which the law authorized them to hold their offices having then expired.

The other members of the court concur in this conclusion. 19 How. 78; 3 Wis. 671; 3 Gray, 601; 31 Wis. 138" court="Wis." date_filed="1872-01-15" href="https://app.midpage.ai/document/resch-v-senn-6601055?utm_source=webapp" opinion_id="6601055">31 Wis. 138; 17 Wis. 651; 20 Tex., 231" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/mccorkle-v-earle-4889007?utm_source=webapp" opinion_id="4889007">20 Texas, 231.

Yery respectfully, .

James D. Westcott, Je.,

Justice Supreme Court of Florida.