State ex rel. Ellis v. Givens, 48 Fla. 165

State ex rel. Ellis v. Givens

48 Fla. 165 | Fla. | 1904

Taylor, C. J.

(after stating the facts). — Upon the death of the regularly elected incumbent of the office of clerk of the Circuit Court for Hillsborough county, prior to the expiration of his term of office, the judge of the Circuit Court for said county, under the provisions of sec-^ tion 1393 of the Revised Statutes, appointed the respondent *173Darwin B. Givens to be clerk ad interim. Said section 1393 is as follows: “1393. Clerk ad interim. In the case of a vacancy occurring in the office of a clerk of the Circuit Court by death, resignation, or other cause, it shall be the duty of the judge of that court to appoint a clerk ad interim, who shall assume all the responsibilities, perform all the duties, and receive the same compensation for the time being as if he had been duly appointed to fill the office; and he shall give such bond and security for the faithful performance of his duties as is prescribed by section 1381 to 1383.”

Daniel J. Galvin, to whose possession the writ herein seeks to have delivered the records, books, files and office rooms belonging to the said clerk’s office, was appointed and commissioned on June 24th, 1904, by the Governor to fill the vacancy in said office, until the qualifications of a successor to be chosen at the ensuing general election, under the provisions of section 217 of the Revised Statutes, that is as follows: “Filling vacancies. In all such cases, and all other cases in which a vacancy may occur, if the office be a State, district or county office (other than a member or officer of the legislature), it shall be the duty of the Governor to fill such office by an appointment, and the person so appointed shall be entitled to take and hold such office until the same shall be filled by an election as provided by law, and in cases requiring the confirmation or the advice and consent of the Senate, the person so appointed may hold until the end of the next ensuing session of the Senate, unless an appointment be sooner made and confirmed or consented to by the Senate.”

It is contended for the respondent that his appointment by the Circuit Judge under the provisions of said section 1393 of the Revised Statutes, entitles him to the office of clerk until a successor to his deceased predecessor is duly elected and qualified. That the period embraced within the expression, “ad interim,” in the section of the statute under which he was appointed covers the entire time between the *174date of his appointment by the Circuit Judge and the date of the qualification of a successor to be elected at a regular election. This contention is untenable. The two quoted sections, both dealing with the subject of filling vacancies in office, were embraced in the Revised Statutes and became parts of such revision of the laws at the same time. ‘ By the the one section the Governor is clothed with authority to fill the vacancy, by the other section the Circuit Judge is authorized to fill it ad interim. Were the interpretation of the provision relating to appointments by the Circuit Judge contended for by respondent adopted, there would be an irreconcilable conflict and repugnancy between the two quoted sections of the law. Both could not stand together, and the one would be held to have repealed the other by implication, in so far, at least, as the clerk of the court is concerned. The legal presumption is that the legislature did not intend to keep really contradictory enactments in the statute book, or to effect so important a measure as the repeal of a law without expressing an intention to do so. An interpretation leading to such a result should not be adopted unless it b.e inevitable. But the canon of construction in such cases is that if the courts can by any fair, strict or liberal construction find for the two provisions a reasonable field of- operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject it is their duty to do so. Endlich on Interpretation of Statutes, sec. 210, and citations.

The duties of the office of clerk of the Circuit Court are of such a nature that public policy demands that there shall always, without any intermission, be some one to discharge them. The filling of a vacancy therein by the Governor in the regular way may be, owing to many contingencies, attended with serious delay. To avoid the disastrous results that might often attend such delay, the legislature enacted the quoted section 1393, empowering the Circuit *175Judge to appoint a clerk ad interim to discharge the duties of the office until, and only until, an appointee of the Governor could qualify. That such is the proper construction of this section is apparent from the language used. The judge is thereby authorized to appoint a person to be clerk only ad interim and such person is thereby authorized to perform the duties of clerk and to receive its compensation only “for the time being,” and the language, “as if he had been duly appointed to fill the office,” shows that such appointments were not to be regarded as a filling of the office in the regular, permanent and orderly way, but only an appointment to meet a temporary emergency, and after such emergency had been provided for by a regular appointment and commissioning of an incumbent by the Governor under the provisions of the quoted section 217, the interim appointment by the Circuit Judge becomes functus officio and the official powers and authority of such appointee as clerk at once cease and determine. See King v. State, 43 Fla. 211, 31 South. Rep. 254. This construction, without doing violence to any language used in either of the quoted sections, keeps them both in perfect harmony, and gives to both á field for non-conflicting operation. That mandamus is the proper remedy in such a case to compel the delivery of the books, files, records and office rooms of such an office to one duly commissioned to the office by the Governor, and that the eligibility of such person can not be set up in such a proceeding as a defense is fully discussed and settled in the case of State ex rel. Attorney-General v. Johnson, 35 Fla. 2, 16 South. Rep. 786.

It follows from what has been said that the demurrer of the respondent to the alternative writ must be overruled, and that the motion of the relator to quash the answer of the respondent and for a peremptory writ of mandamus should be granted, and it is so ordered at the cost of the respondent.

Hocker, Cockrell, Shackreford, Whitfield and Carter, JJ., concur.