70 Fla. 55 | Fla. | 1915
Lead Opinion
This quo warranto proceeding is brought to determine whether the Honorable S. J. Hilburn is entitled to hold and exercise the powers and duties of the office of Circuit Judge for the Fourth Judicial Circuit of Florida, as such judicial circuit is established under the following legislative enactment:
“An Act creating an additional judicial circuit in the State of Florida to be designated the Twelfth Judicial Circuit and providing for two additional circuit judges therefor, and defining- and fixing the territorial limits and boundaries of the Fourth, Eighth and Twelfth Judicial Circuits and prescribing when said Circuit Courts shall take jurisdiction and the effect on pending cases and the time for holding the terms of court in the Fourth and Twelfth Judicial Circuits.
Be it enacted by the Legislature of the State of Florida :
Section i. There is hereby created and established an additional judicial circuit in the State of Florida to be known and designated the Twelfth Judicial . Circuit of the State of Florida. This additional judicial circuit shall be composed of the counties of Duval and Nassau. And for this additional judicial circuit there shall be appointed by the Governor and confirmed by the Senate two additional circuit judges other than the judge of the Circuit Court for Duval County under Section 42, of Article. V of the Florida Constitution.
Section 2. The Fourth Judicial Circuit of the State
Section, 3. The Eighth Judicial Circuit of the State of Florida shall be composed of the counties of Alachua, Bradford, Levy and Baker.
Section 4. On and after the .seventh day of June, A. D. 1915, the Circuit Courts of the Fourth, Eighth and Twelfth Judicial Circuits respectively, then composed of the counties as hereinbefore set forth, shall exercise jurisdiction over their circuits respectively; provided that the judges and State attorneys of the Fourth and Eighth Judicial Circuits respectively, holding office at and before the time this act becomes a law, shall continue without change to exercise jurisdiction over their existing circuits and in the counties therein, respectively until midnight at the beginning of the seventh day of June, A. D. 1915, and, in the event said additional judges are not then appointed and qualified, until said additional judges ■shall have qualified.
Section 5. The Circuit Court cases, suits and proceedings pending in the various counties hereinbefore named shall continue pending therein, whether in one circuit or another, and no civil or criminal case, suit, cause or proceeding, in equity, at law, statutory or otherwise, and no writ, process, pleading, motion, information, presentment, indictment, order, finding, decree, judgment or sentence, shall abate, or be quashed, set aside, reversed, qualified, dismissed or defeated, or be held as error by reason of the creation, establishment or organization of the twelfth judicial circuit or of the change in the circuits or of this division or of any designation of the number of the circuit or by reason of this law or of any part of this law.
Section 7. That the time for holding- the terms of the Circuit Court in and for the fourth judicial circuit shall be as hereinafter fixed. There shall be two regular terms of said, court held in each county of the fourth judicial circuit, each year, to be known as the spring and fall term. The spring term of the Circuit Court for' the said fourth judicial circuit shall commence in the county of Clay on the second Monday in April, in the county of St. Johns on the second Monday in May, and in the county of Putnam on the second Monday in June. The fall term of said, court shall commence in the county of Clay on the third Monday in October, in the County of St. Johns on the third Monday in November, and in the county of Putnam on the second Monday in December.
Section 8. There shall be four terms of the Circuit Court for the twelfth circuit for Duval County, beginning in each year on the first Tuesday after the first Monday of January, April, July and October, and any term may extend or continue into the succeeding term pursuant to rules made from time to time by the Circuit Judges or a majority of them residing in said county, and said rules may fix the period of time for the extension, and may limit the application of the extension of the expiring term to a particular case or cases or to a particular class of matters; by like rules a future date may be arbitrarily fixed as to one or more of the various classes of cases for the end of the term without regard, to the beginning of a new term above indicated or the adjournment or continuance of a pending term; the first term shall begin
Section 9. There shall be two regular terms of the Circuit Court for the twelfth judicial circuit for Nassau County, in each year, the spring term to begin on the third Monday in April and the fall term to- begin on the first-'Monday in November. A special term may be held pursuant to- law or whenever ordered by the two circuit judges for said Circuit Court. The circuit judge holding the older commission at the time shall preside or else direct the other circuit judge to' preside; but the exercise of jurisdiction in term time or in vacation by either circuit judge shall be valid.
Section xo. All laws and parts of laws inconsistent with this law or any part thereof be and the same is hereby repealed.
Section 11. This law shall take effect at midnight at the beginning of the seventh day of June, A. D. 1915.”
The constitutionality of the act is challenged. In State ex rel. v. Butler, this day decided, it is held that the provision of the act for two circuit judges for the Twelfth Judicial Circuit conflicts with the constitutional limitation of one judge for each circuit, and that such provision is therefore inoperative. Is the act otherwise constitutional ?
The organic law contains the following provisions:
“There shall be eight Circuit Judges, who shall be appointed by the Governor and confirmed by the Senate, and who shall hold their office for six years.
The State shall be divided by the Legislature, at its first regular session after the adoption of this section, into eight judicial circuits, and one judge shall be assigned
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. Tlu judge shall reside in the-circuit of which he is judge.
This section shall not be operative until the Legislature shall have, divided this State into eight circuits, as hereinbefore provided for, and the seven circuit judges holding office at the time of such division shall continue to exercise jurisdiction over their several existing circuits as constituted at the time of such division, until the judge of the additional circuit shall have qualified. The circuit judges holding office at the time of such division shall severally continue in office until the expiration- of their then existing term of office as judges of the circuits respectively in which, under such division, the county of his residence may be included; and a judge for the additional circuit shall be appointed for a term equal to the unexpired term of the other circuit judges upon such division being made. The salary of each circuit judge shall be two- thousand, seven hundred and fifty dollars.” (As amended, Joint Resolution 2, Acts 1901; adopted at general election, 1902.)
“No courts other than herein specified shall be established in this State, except that the Legislature may provide for the creation and establishment of such additional Judicial Circuits as may from time to time become necessary, and for the appointment by the Governor
By section 4 of the act set out above, the jurisdiction of the judges of the then existing Fourth and Eighth Judicial Circuits, “shall continue without change,” until the beginning of June 7th, 1915, and in the event the additional judges to be appointed under section one of the act for the Twelfth Judicial Circuit “are not then (June 7, 1915,) appointed and qualified, until said additional judges shall have qualified.” As two Circuit Judges for the Twelfth Circuit cannot legally qualify, the jurisdiction of the judges of the Fourth and Eighth Judicial Circuits, by the terms of the statute, is to “continue without change;” and the courts are not authorized by construction or elimination to extend the terms or scope of the act or cause results not intended by the lawmakers. See State ex rel. Rolston v. Chicago, B. & Q. R. Co., 246 Mo. 512, 152 S. W. Rep. 28; State v. Patterson, 50 Fla. 127, 39 South. Rep. 398; Secs. 296-306 Sutherland’s Stat. Con.
Where provisions of a statute “are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions, which
If the provisions of the act relating to the several judicial circuits were not interdependent, or if each were not an inducement for the enactment of the others, they would doubtless have been expressed in terms not so inter-related, or else put into, separate acts.
Because of the invalid provision for two Circuit Judges for the Twelfth Judicial Circuit, as this day adjudicated in State ex rel. v. Butler, and because of the manifest interdependence of its provisions, the entire act is unconstitutional and inoperative. The Twelfth Judicial Circuit is not legally established and two Circuit Judges for such
Let a judgment of ouster be entered.
Taylor, C. J., and Shackleford, and Whitfield, JJ-, concur.
Dissenting Opinion
(dissenting.) — An information in the nature of quo zvarranto, was filed in this court, in the name of the State of Florida, on the relation of the Attorney General, for the purpose of testing the right of Samuel J. Hilburn, to use, exercise, enjoy and perform the franchise, functions, jurisdiction and powers of Circuit Judge of the Fourth Judicial Circuit of the State of Florida.
The information is in the following words, omitting venue and signatures:
“In the name and by the authority of the State of Florida, Thomas F. West, as the Attorney General of the State of Florida, who sues for the State of Florida and for the people of the State of Florida in this behalf, comes here before the Supreme Court of the State of Florida, on this 14th day of June, during the June Term
1. That it is claimed or pretended by the said S. J. Hilburn, that he is such Circuit Judge of the Fourth Judicial Circuit of the State of Florida, by appointment of the Governor of said State, under and by virtue of an Act of the Legislature of the State of Florida, which Act is as follows:
An Act creating an additional judicial circuit in the State of Florida to be designated the Twelfth Judicial Circuit and providing for two additional circuit judges therefor, and defining and fixing- the territorial limits and boundaries of the Fourth, Eighth and Twelfth Judicial Circuits and prescribing- when said Circuit Courts shall take jurisdiction and the effect on pending cases and the
Be it enacted by the Legislature of the State of Florida :
Section 1. There is hereby created and established an additional judicial circuit in the State of Florida to be known and designated the Twelfth Judicial Circuit of the State of Florida. This, additional judicial circuit shall be composed of the counties of Duval and Nassau. And for this additional judicial circuit there shall be appointed by the Governor and confirmed by the Senate two additional circuit judges other than the judge of the Circuit Court for Duval County under Section 42, Article V.of the Florida Constitution.
Section 2. The Fourth Judicial Circuit of the State of Florida shall be composed of the counties of St. Johns, Clay and Putnam.
Section 3. The Eighth Judicial Circuit of the State of Florida shall be composed of the counties of Alachua, Bradford, Levy and Baker.
Section 4. On and after the seventh day of June, A. D. 1915, the Circuit Courts of the Fourth. Eighth and Twelfth Judicial Circuits respectively, then composed of the counties as hereinbefore set forth, shall exercise jurisdiction over their circuits respectively; provided that the judges and State attorneys of the Fourth and Eighth Judicial Circuits respectively, holding office at and before the time this Act becomes a law, shall continue without change to exercise jurisdiction over their existing circuits and in the counties therein, respectively until midnight at the beginning of the seventh day of June, A. D. 1915, and, in the event said additional judges are not then ap
Section 5. The Circuit Court cases, suits and proceedings, pending in the various counties hereinbefore named shall continue pending therein, whether in one circuit or another, and no civil or criminal case, suit, cause or proceeding, in equity, at law, statutory or otherwise, and no writ, process, pleading, motion, information, presentment, indictment, order, finding, decree, judgment or sentence, shall abate, or be quashed, set aside, reversed, qualified, dismissed or defeated, or be held as error by reason of the creation, establishment or organization of the twelfth judicial circuit or of the change in the circuits or of this division or of any designation of the number of the circuit or by reason of this law or of any part of this law.
Section 6. There shall be a State attorney for the twelfth judicial circuit who shall be appointed by the Governor and confirmed by the Senate and hold office for the term provided by the Constitution.'
Section 7. That the time for holding the terms of the Circuit Court in and for the fourth judicial circuit shall be as hereinafter fixed. There shall be two regular terms of said court held in each county of the fourth judicial circuit, each year, to be known as the spring and fall term. The spring term of the Circuit Court for the said fourth judicial circuit shall commence in the county of Clay on the second Monday in April, in the county of St. Johns on the second Monday in May, and in the county of Putnam on the second Monday in June. The fall term of said court shall commence in the county of Clay on the third Monday in October, in the county of
,. Section 8. There shall be four terms of the. Circuit Court for the twelfth circuit for Duval County beginning in each year on the first Tuesday after the first Monday of January, April, July and October, and any term may extend or continúe into the succeeding term pursuant to rules made from time to time by the Circuit Judges or a majority of them residing in said County, and said rules may fix the period of time for the extension, and may limit the application of the extension of the expiring term to a particular case or cases or to a particular class of matters ; by like rules a future date may be arbitrarily fixed as to one or more of the various classes of cases for the' end of the term without regard to the beginning- of a new term above indicated or the adjournment or continuance of a pending term; the first term shall begin as soon after the organization as may be, by order of said Circuit Judges and without regard to the day of the week or month a sabove indicated.
Section 9. There shall be two regular terms of the Circuit Court for the twelfth judicial circuit for Nassau county, in each year, the spring term to begin on the third Monday in April, and the fall term to begin on the first Monday in November. A special term may be held pursuant to law or whenever ordered by the two circuit judges for said Circuit Court. The circuit judge holding the older commission at the time shall preside or else direct the other circuit judge to preside; but the exercise of jurisdiction in term time or in vacation by either circuit judge shall be valid.
Section 10. All laws and parts of laws inconsistent
Section 11. Tliis law shall take effect at midnight at the beginning of the seventh day of June, A. D. 1915.
That on, to-wit, the 7th day of June, A. D. 1915, the said S. J. Hilburn was appointed by the Governor- of the State of Florida, and confirmed by the Senate of the State of Florida, to- be Circuit Judge of the Fourth Judicial Circuit of said State of Florida, and subsequently commissioned by the Governor of the State of Florida as such Judge for the term beginning on the 14th day of June, A. D. 1915, until the 2nd day of July, A. D. 1917. That at the time that the said S. J. Hilburn was so appointed and commissioned Circuit Judge for the Fourth Judicial Circuit of the State of Florida, George Couper Gibbs was, and still is, Circuit Judge for said Fourth Judicial Circuit, unless the provisions of said alleged Act of the Legislature creating such twelfth Judicial Circuit then were,, and are, constitutional and not contrary to the Constitution of the State of Florida. That the said attempted appointment, confirmation and commissioning of the said S. J. Hilburn as Circuit Judge of the Fourth Judicial Circuit of the State of Florida was contrary to and in violation of the Constitution of the State of Florida, and of the provisions thereof, and is illegal and void, and of no effect, and the exercise and use by the said S. J. Hilburn of the office, functions and powers of Circuit Judge of the Fourth Judicial Circuit of the State of Florida, is without warrant of law, in that said alleged Act above set forth as shown by its face, is unconstitutional and void.
2. The Attorney General aforesaid of the State
That said alleged Act of the Legislature hereinbefore quoted at length is not in any respect, nor in all respects and parts a law of the State of Florida; that is to say,
(a) Prior to the date said Act went into effect, and long theretofore, George Couper Gibbs was and had been the duly qualified, commissioned and acting Circuit Judge for the Fourth Judicial Circuit of the State of Florida, composed of the counties of Nassau, Duval, St. Johns and Clay Counties, and then and theretofore resided in the county of Duval, and still resides in said county of Duval, and said Gibbs has continued, and is now the duly qualified and commissioned Circuit Judge residing in Duval County, Florida; and that Daniel A. Simmons is and for two years last past has been the duly qualified, commissioned and acting Circuit Judge for Duval County, Florida, under Section 42 of Article 5, of the Florida Constitution; and that James T. Wills is now, and for many years has been the duly commissioned, qualified, and acting Circuit Judge for the Eighth Judicial Circuit of the State of Florida, residing in Bradford County, and that said Eighth Judicial Circuit next prior to the passage of said alleged Act, and ever since the creation of the Eighth Judicial Circuit of the State of Florida, consisted of the counties of Baker, Bradford, Putnam, Alachua and Levy' counties; and that J. Turner Butler has been duly appointed and commissioned by the Governor of the State of Florida under date of the ninth day of June, A. D. 1915, a judge of the Circuit Court for the Twelfth Judicial Circuit of the State of Florida, residing in Duval County, Florida, in the event the said alleged Act in that
3. And the Attorney -General aforesaid of the State aforesaid, further gives the Court to understand and be informed as follows:
That the said provisions of the said alleged Act of the Legislature of the State of Florida, hereinbefore mentioned and quoted, providing for two additional Circuit Judges for the Twelfth Judicial Circuit of the State of Florida aforesaid, are such a material portion of said Act, and are so connected with the other provisions of said Act, and so permeate the said Act, both in the title and the body thereof, and so affect the provisions and manifest purposes and intent of said Act, that said entire alleged Act of the Legislature is contrary to and in violation of the Constitution of the State of Florida, and the said attempted appointment and commissioning of the said Samuel J. Hilburn as Circuit Judge of the Fourth Judicial Circuit of the State of Florida, was contrary to and in violation of the Constitution of the State of Florida, and of the provisions thereof, and is illegal and void, and of no effect, and the exercise and use by the said S. J. Hilburn of the office, functions and powers of Circuit Judge of the Fourth Judicial Circuit of the State of Florida, is without warrant of law.
4. And the Attorney General aforesaid, of the State
That said alleged Act of the Legislature of the State of Florida, hereinbefore mentioned and quoted, is contrary to and in violation of the Constitution of the State of Florida, in that the said alleged Act, in Section 8 and Section 9 thereof, contains provisions regulating the jurisdiction and duties of the Circuit Judges for said Twelfth Judicial Circuit and regulating the practice of a Court of Justice, not a Municipal Court, to-wit, the Circuit Court for the Twelfth Judicial Circuit of the State of Florida, for Duval County, and the Circuit Court for the Twelfth Judicial Circuit of the State of Florida, for Nassau County, respectively, and said Act is a local law, and is not a law of general and uniform operation throughout the State of Florida, and is in violation of and is contrary to Section 20 and Section 21, of Article 3 of the Constitution of the State of Florida. That said alleged act is also unconstitutional because the said provisions thereof concerning the jurisdiction and duties of the Circuit Judges for said Twelfth Judicial Circuit and regulating the practice of said courts, is not expressed in the title of said Act, and is a different and distinct subject from that of creating the Twelfth Judicial Circuit and defining and fixing the territorial limits and boundaries of the Fourth and Twelfth Circuits, and prescribing when said Circuit Courts shall take jurisdiction and the effect on pending cases and the times for holding the terms of Court in the Fourth and Twelfth Judicial Circuits, and matters properly connected therewith, and is in violation of Section 16 of Article 3 of the Constitution of the State of Florida.
5. And the Attorney General aforesaid, of the State
A bill called Senate Bill 282 with the title and eleven sections was introduced in the Senate of the State of Florida on the 21st day of April, A. D. 1915, when the Legislature of said State was duly convened and acling in regular session at Tallahassee, in the words of said Act of the Legislature hereinbefore quoted and said bill is alleged to have become an act of the Legislature of the State of Florida, notwithstanding the Governor’s objection, by having passed both houses by a two-thirds vote of the members, during said session of the Legislature aforesaid, and is alleged to have become a law of said State when so passed and certified to the Secretary of State of the State of Florida on the 18th day of May, 1915, but the fact is that said bill failed to become a law in that, among other constitutional defects, as exhibited by the journal of the two houses and the original enrollment in the custody of -the Secretary of State of the State of Florida, when on Saturday the 15th day of May, A. D. 1915, the Governor’s message returning- said bill without his approval was read to the House of Representatives, the question was put by the Speaker, ‘Shall .the Act pass, the objections of the Governor to the contrary notwithstanding?’ And the vote thereon as set ,out in the journal was 32 yeas and 25 nays, giving the name of each member present and how he voted; and on Monday next following, May 17th, Mr. Dancy, one of the 25 members voting in the negative, moved the rules be waived for the purpose of moving a reconsideration of the vote by which the House sustained the Governor’s
Mr. Dancy moved that the House reconsider the vote which the Governor’s veto was sustained on—
An Act creating- an additional Judicial Circuit in the State of Florida, to be designated the Twelfth Judicial Circuit, and providing for two additional Circuit Judges therefor, and defining and fixing the territorial limits and boundaries of the Fourth, Eighth, and Twelfth Judicial Circuits, and prescribing- when said Circuit Courts shall take jurisdiction, and the effect on pending cases, and the time for holding the terms of court in the Fourth and Twelfth Judicial Circuits.
The same having been Senate Bill No. 282.
Mr. Lewis, another member of the House who voted in the negative, made the point of order that it was out of order to reconsider the vote by which the veto- of the Governor was sustained.
Which point was overruled by the Speaker.
Mr. Dancy moved that the rules be further waived and that the motion to reconsider be taken up and considered at this time.
Which was agreed to by a two-thirds vote.
The question then recurred upon the motion to- reconsider the vote by which the house sustained the Governor’s veto on Senate Bill No. 282.
Which was agreed to by a two-thirds vote.
The question then recurred upon the question, 'Shall the Bill pass, the veto of the Governor to the contrary notwithstanding ?’
M,r. Lewis made the point of order that it was out of order to reconsider the vote by which the veto of the Gov
6. And the Attorney General aforesaid, of the State aforesaid, further gives the Court to understand and be informed as follows:
Said Bill or Act quoted at length, originally called Senate Bill 282, even if it were in due season and in due form passed and enacted, yet it is not a law of the State of Florida, in that in its body it fails to comply with Section 16 of Article III of the Florida Constitution in that it does not ‘embrace but one subject and matter properly connected therewith.’
And, so it is, the Attorney General of the State of Florida does give this Court to understand and be informed that said S. J. Hilburn, without warrant or authority of law, and in violation of the Constitution of the State of Florida, has usurped and still does \yithout warrant so usurp the said franchise, functions, jurisdiction and powers of the office of Circuit Judge as aforesaid.
Whereupon, the said Thomas F. West, as the Attorney General of the State of Florida, for the said State, and in the name ajad by the authority of the said State, prays the consideration of the Supreme Court of the State of Florida, in the premises and due process of law to the said S. J. Hilburn in this behalf to answer to the State of Florida by what warrant of authority he claims to use, exercise, enjoy and perform the franchise, functions, jurisdiction and powers of Circuit Judge aforesaid.”
To this information respondent interposed a demurrer. So that the question of the validity of the act copied in the petition is presented to this court for determination.
It is contended on behalf of the Relator that the act of the Legislature referred tO' is invalid because:
1st. The clause therein providing for two additional Circuit Judges for the Twelfth Judicial Circuit of the State of Florida is in violation of the Constitution of the State of Florida, and that such provision so permeates the entire act both in its body and title that the act is void in its entirety.
2nd. That Sections 8 and 9 of the Act make it a local law. and obnoxious to the provisions of Sections 20 and 21 of Article III of the State Constitution.
3rd. That the provisions of Sections 8 and 9 of the Act concerning the jurisdiction and duties of the Circuit Judges for the Twelfth Judicial Circuit and regulating the practice of the said courts is not expressed in the title of the Act and is a different and distinct subject from that named in the title, which fault renders the Act void ■ because of the provisions of Section 16 of Article III of the Constitution of the State, and
Whether the Legislature has power under our Constitution to provide for the creation and establishment of an additional Judicial Circuit and for the appointment by the Governor and confirmation by the Senate of two Circuit Judges therefor is a question, which depends for its solution upon the absence from the Constitution of express limitations upon such power or limitations necessarily implied from language used. “Nto matter from what standpoint the assault upon the Act may be made, it is a well settled and cardinal rule that nothing but a clear violation of the Constitution will justify the Courts in overruling the legislative will; and when there is reasonable doubt as to the constitutionality of an Act it must be resolved in favor of the Act.” See Cooley’s Const. Lim. Chap. 7; Cotton v. County Commissioners of Leon County, 6 Fla. 610; State ex rel., Turner v. Hocker, 36 Fla. 358, 18 South. Rep. 767; Webster v. Powell, 36 Fla. 703, 18 South. Rep. 441; State ex rel. Attorney General v. Burns, 38 Fla. 367, 21 South. Rep. 290; State ex rel., Andreu v. Canfield, 40 Fla. 36, 23 South. Rep. 591; State ex rel., Lamar v. Jacksonville Terminal Co., 41 Fla. 377, 27 South. Rep. 225; State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929. “It is a recognized principle of constitutional law that where limitations have not been imposed by the constitution upon legislative power,
We think that text writers and courts, publicists and people agree that State Constitutions do not confer or grant legislative power. That power exists in the people to be exercised by them through the governmental agency named in the constitution upon the organization of a State and when the instrumentalities through which that part of sovereign power is to be exercised is created, that power may be exercised practically without limit within its legitimate range or scope. In undertaking to determine therefore whether a particular exercise of legislative will is valid, we must look to the constitutions, Federal and State, for restrictions upon that particular exercise
In the case above cited it was said by this court speaking through Judge Carter, “That under constitutions like ours the legislative power of the State is vested in the legislative department full and complete, subject only to the limitations and restrictions contained in the constitution or in the Constitution of the United States. Language in a State constitution therefore dealing with the exercise of legislative power, either authorizing or directing it, is not to be construed as a grant of power, but rather as the declaration of a power that already exists. Affirmative words in such connection, therefore’ do not necessarily imply a restriction of power upon legislative action on kindred subjects. Chapman v. Reddick, 41 Fla. 120, 25 South. Rep. 673. See State ex rel. v. Gerdink, 173 Ind. 245, 90 N. E. Rep. 70. It was upon this principle that Section 30 of Article XVI of the constitution, investing the Legislature with full power to pass laws for the correction of abuses and to prevent unselfish discrimination and excessive charges by persons and corporations engaged as Common Carriers in transporting property, etc., “and shall provide for enforcing such laws by adequate penalties of forfeitures” did not forbid the use of mandamus and other remedies for enforcing duties imposed by laws passed to accomplish the purposes specified in the Act then under consideration. State ex rel. Lamar v. Jacksonville Terminal Co. supra.
There is another principle of constitutional construction that should be kept in mind in considering this question, vis.: Effect should be given to every word and part of the constitution unless some clear reason exists to the
Section 1 of Article V of the State Constitution as amended in 1914 is as follows : “Section 1. The judicial power of the State shall be vested in a-Supreme Court, Circuit Courts, Court of Record of Escambia County, Criminal Courts, County Courts, County Judges and Justices of the Peace and such other courts or Commissions as the Legislature may from time to time ordain and establish. The Legislature may prescribe the compensation of the Justices and Judges of the several courts, but no court heretofore established under the constitution and laws of Florida shall be hereby abolished.”
Before the amendment the Section was as follows:
“Section x. The judicial power of the State shall be vested in a Supreme Court, Circuit Courts, Criminal Courts, County Courts, County Judges and Justices of the Peace.”
The power of the Legislature to bring into existence by legislative enactment, under the section as it originally existed, unaffected by other portions of the Constitution
The Constitution before Section one of Article V was amended contained other sections which it is contended placed restriction upon the Legislature from creating more Judicial Circuits and more Circuit Judges than were specifically mentioned in that instrument.
Section 8, which provides as follows: “There shall be seven Circuit Judges who shall be appointed by the Governor and confirmed by the Senate and who shall hold their office for six years. The State shall be divided into seven Judicial Circuits, and one Judge shall be assigned to each Circuit. Such Judge shall hold at least two terms of his court in each county within his Circuit every year and at such times and places as shall be prescribed by law, and may hold special terms. The Governor may, in his discretion, order a temporary exchange of Circuits by the
The people were not yet ready to remove the limitation imposed by Section 35. The rapid growth of the State in population both urban and rural, which occurred
This amendment did not purport to amend Section 10, nor did it; its effect was to destroy that Section, and amend Section 9 as to the salary of each Circuit Judge.
Up to this time, 1902, the Circuit Court Judges were provided by the constitution, no provision was made for creating the office by the Legislature, no reference was made to such power directly or indirectly, unless the constitutional declaration that there should be eight Judgés and one assigned to each Circuit impliedly prohibited the Legislature from providing more Judges than one to each Circuit. If there was such implication it was a weak one, in view of the inherent power of the Legislature to divide a Circuit into two divisions and make provision for the appointment of a Judge for each division separately. See State v. Martin, 60 Ark. 343, 30 S. W. Rep. 421; Bone v. State, 86 Ga. 108, 12 S. E. Rep. 205; People v. Burch, 84 Mich. 408, 47 N. W. Rep. 765; Jordan v. Bailey, 37 Minn. 174, 33 N. W. Rep. 778; In re Cahill’s petition, 110 Pa. St. 167, 20 Atl. Rep. 414; Kilpatrick v. Commonwealth, 31 Pa. St. 198; State v. Atherton, 19 Nev. 332, 10 Pac. Rep. 901; Field v. Silo, 44 N. J. L. 355. But assume that a system of Judicial Circuits and one Judge for each Circuit was clearly intended to be permanently fixed by Section 8 of the Constitution. That the framers of that instrument and the people who adopted it made no provision for the future growth of the State; that they never dreamed that the State would ever grow in population, wealth and business to that degree which would ren
Here is language affirmative in character and broad in its meaning. Shall it be given by implication and strained construction a negative inference and thus contravene every principle of constitutional construction to the end that the legitimate scope of legislative power may be narrowed, that legislative discretion in the legitimate field of its operation may be restricted ? It was the purpose of this amendment to give to these additional Judicial Circuits and additional Circuit Judges the character of legislative creatures so. that they might be created or abolished by legislative action alone within such limits as to terms of office of the Judges as the amendment prescribes. Perkins v. Corbin, 45 Ala. 103; Larkin v. Simmons, 155 Ala. 273, 46 South. Rep. 451; State ex rel. Thomas v. Gunter, 170 Ala. 165, 54 South. Rep. 283; State ex rel. Flinn v. Wright, 7 Ohio St. 333; McCully v. State, 102 Tenn. 509, 53 S. W. Rep. 134; State v. Lindsay, 103 Tenn. 625, 53 S. W. Rep. 950. But a court created by the constitution may not be abolished by the Legislature. Perkins v. Corbin supra; Rhyne v. Lipscombe, 122 N. C. 650, 29 S. E. Rep. 57; McDermont v. Dinnie, 6 N. D. 278, 69 N. W. Rep. 294; Commonwealth v. Green, 58 Pa. St. 226; Kenny v. Hudspeth, 59 N. J. L. 320, 36 Atl. Rep. 662. The additional Judicial Districts and additional Circuit Judges provided for in the amendment are of constitutional authorization, but not constitutional creation. They are expressly authorized to be created by the Legislature. It is thus apparent that the purpose of the amendment was to entirely remove the
It was said in that case that “while implied repeals or amendments of constitutions or laws are not favored, yet the primary consideration is to give effect to the intent of the law-making power as duly expressed, and this should be done even if it results in a repeal or modification of older inconsistent or repugnant provisions.”
Section 8 contemplates that there should be only eight Judicial Circuits and only eight Circuit Judges, so it is said; then the,words “one Judge shall be assigned to each Circuit” necessarily refers to the eight Judicial Circuits so intended permanently to be established. It is idle to claim that those words referred to Judicial Circuits which
It is urged that there has been a legislative construction of the provisions of the amendment in that in 1911 three additional Judicial Circuits were created and one Judge for each provided by the Legislature. But who is to say that the Legislature thought that two Circuit Judges were needed for any one of the three additional Circuits so created and was deterred from providing them by consideration of the provisions of Section 8 of the Constitution ? Is it not more reasonable to say that more Judges than one to each Circuit were not needed?
It is also contended that in 1912, when Article V was amended by adding Section 42, providing for “another Judge of the Circuit Court for Duval County,” the people construed the amendment to Section 35 and virtually held that the Legislature did not have the power to provide for such a Judge. This may be, doubtless is true. Duval County was a part of the Fourth Judicial Circuit, consisting of Duval, St. Johns, Nassau and Clay Counties. The Legislature could not provide a Judge of the Circuit Court for Duval County and require him to reside in that county and that his salary and expenses should be paid by that county. The Constitution only required the Judge
I do not find in the Constitution any provision which in express terms or by necessary implication, forbids the exercise of the power by the Legislature to create an additional Judicial Circitit and provide more than one Circuit Judge therefor. Cooley’s Const. Lim. 124-6; Neal v. Shinn, 49 Ark. 227, 4 S. W. Rep. 771; Scales v. State, 47 Ark. 476, text 481, 1 S. W. Rep. 769. And as judicial interposition is never justified to avoid an Act of the Legislature unless it is clear beyond reasonable doubt that the Act in question is prohibited by some express provision of the Constitution or some necessarily implied limitation upon the legislative power. I think the Act is valid. Cheney v. Jones, 14 Fla. 587, text 607; State ex rel. Guyton v. Croom, 48 Fla. 176, 37 South. Rep. 303; Thomas v. Williamson, 51 Fla. 332, 40 South. Rep. 831; Bloxham v. Florida Cent. & P. R. Co., 35 Fla. 625, text 734, 17 South. Rep. 902; Holton v. State, 28 Fla. 303, 9 South. Rep. 716; State ex rel. Moodie v. Bryan, 50 Fla. 293, text 355-393, 39 South. Rep. 929; Campbell v. Skinner Mfg. Co., 53 Fla. 632, text 638, 43 South. Rep. 874; Hayes v. Walker, 54 Fla. 163, 44 South. Rep. 747; State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South. Rep.
It was said by this court in the case of H^es v. Walker, supra, “If a portion of a statute is unconstitutional and such portion can be eliminated or disregarded without impairing the effectiveness of the remaining portions of the statute for the purposes intended, and without causing results not contemplated or desired by the Legislature, and it does not appear from a consideration of the entire Act and the purposes for which it was enacted that the legislative'authority would not have enacted the valid portions without the invalid portions, effect will be given to so much of the Act as is constitutional and can be made effective for the purpose intended by the enactment.” It was also said that where the constitutional portion of an Act is not dependent upon the unconstitutional portion for effectiveness, and the constitutional portion is sufficient of itself to accomplish the purpose of the enactment, the unconstitutional portion may be disregarded or eliminated and effect given to the remainder of the statute.
While the above language was not necessary to the decision in the above case, as those portions of the act which the court had under consideration and which were attacked as invalid, were held by the court to be valid, yet
It is clear that no portion of' the act is dependent for effectiveness upon that clause in Section 1 which the court holds to be objectionable, namely “And for this additional Judicial Circuit there shall be appointed by the Governor and confirmed by the Senate two additional Circuit Judges other than the Judg-e of the Circuit Court for Duval County under Section 42 of Article V of the Florida Constitution,” unless it be the latter part of the so-called proviso relating to the retention of jurisdiction by the Judges and State Attorneys of the Fourth and Eighth Judicial Circuits over their existing Circuits until June 7, 1915, which latter part referred to is as follows: “And in the event said additional judges are not then appointed and qualified, until said additional judges shall have qualified.”
If the clause providing for two additional Circuit Judges is void, then the act makes no provision at all for the appointment of any judge for the new Judicial Circuit. The purpose of a proviso is to except something from or to restrain the generality of what precedes it, not to enlarge or extend the section of which it forms a part. State ex rel. Moodie v. Bryan, 50, Fla. 293, text 383, 39 South. Rep. 929; County Commissioners of Lake County v. State, 24 Fla. 263, 4 South. Rep. 795.
The entire clause beginning with the word “provided,” builds upon’the preceding- enactment, which is that on and after the seventh day of June, A. D. 1915, the Circuit Courts of the Fourth, Eighth and Twelfth Judicial Circuits respectively, then composed of the counties as set forth in the act, shall exercise jurisdiction over their Circuits respectively. Now by the eleventh section of the Act it did not become effective until June 7, 1915,
The clause mentioned should fall with the clause providing for two additional judges for the Twelfth Circuit to which it refers and to which by words and manifest intention it is connected and by which it is controlled. If the legislature could enact a statute providing for an additional Judicial Circuit and make no- provision in the act for appointment by the Governor of a Circuit Judge therefor, and should enact such a statute and write therein such a clause as the one mentioned, namely that the Judge of the old Circuit out of which the new Circuit was carved should exercise jurisdiction over the territory of the old Circuit, until two Judges should be appointed and assigned to the new Circuit suc-h condition would not conform to the policy and intention of the legislature which was obviously to- create a new or additional Circuit, the clause should therefore be disregarded. The clause is not a condition precedent. It does not provide that the act
An act redistricting a county for supervisors was held valid though it unconstitutionally provided that incumbents should hold over beyond their election terms until they could be immediately succeeded by supervisors elect
It being decided by the court that the clause in the act providing for two judges for the Twelfth Circuit is void, may the act in so far as it creates an additional judicial circuit be valid notwithstanding its failure to provide for the appointment by the Governor of a Circuit Judge therefor?
If the view expressed in the majority opinion is correct as to the meaning and effect of the amendment to Section 35 adopted in 1910, and the views expressed by the judges of this court in an advisory opinion to- the Governor as to a judge remaining judge of the circuit embracing the county of his residence is also correct, it follows that one of the two propositions is true when the Legislature creates an additional judicial circuit, namely:
xst. That such additional circuit must be created of counties that do not at the time the act becomes a law, embrace the residence of a Circuit Judge or Judges; or 2nd. That in creating an additional circuit the legislature could not definitely provide for the appointment of an additional judge for the newly created circuit.
Now in creating an additional Judicial Circuit it becomes necessary to. change the boundaries of other circuits, by taking therefrom a county or counties which formerly formed a part of the original circuit or circuits as the case may be, as in this case in creating the Twelfth Circuit two counties were taken from the Fourth, which two counties, Duval and Nassau, now constitute the Twelfth Circuit. One county, Putnam, was taken from the Eighth Circuit and with St. Johns and Clay counties now constitute the Fourth.
But the Legislature could not definitely provide for
The first proposition cannot be true,'because the constitution only requires a judge to reside within the circuit of which he is judge and he may at any time take up his residence in any county thereof, thus making the valid exercise of legislative will in the matter of creating an additional circuit dependent upon his act in establishing a residence, which he may do before the bill providing for the change becomes a law.
According to the view expressed in the ma j ority opinion, if the act under consideration in this case had provided for only one additional judge for the Twelfth Circuit, it would have been void because when the act became a law it found Judge Gibbs of the Fourth Circuit a resident of Duval county and therefore Judge of the Twelfth Circuit' and as the Governor could not have appointed a judge for that circuit, the act would never have gone into effect because of the last clause of Section 4 above referred to, but
If it is true that Section 8 of Article V mandatorily requires one judge to each circuit, and the Legislature has the power to create additional Judicial Circuits, then the creation of an additional Judicial Circuit by implication creates a Circuit Court therefor and if no Judge is provided for such court the G'overnor by implication has the power to appoint a Circuit Judge and assign him to the circuit which is without one. This proposition is conceded by the Relator’s counsel. While this view renders the words in the amendment of 19x0, providing for appointment by the Governor of “Additional Judg'es” for such additional •circuits superfluous and meaningless, yet in view of the conclusion reached by the majority I think the view is correct.
Cockrell, J., concurs in this dissent .
