Opinion
May 5, 1950.
State of Florida Executive Department Tallahassee
Fuller Warren Governor Frank S. Wright Assistant to the Governor April 5, 1950 Honorable Chief Justice and the Associate Justices of the Supreme Court of Florida Tallahassee, Florida
Re: Filling Vacancy in Office of Member of County Board of Public Instruction.
Gentlemen:
The State Constitution authorizes me, as Governor, to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the State Constitution upon any question affecting my executive duties and powers, Section 13, Article IV, of the State Constitution, F.S.A.
The said State Constitution further provides that "when any office, from any cause, shall become vacant, and no mode is provided by this Constitution or by the laws of the State for filling such vacancy, the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term." (Section 7, Article IV, of the State Constitution).
The said State Constitution further provides that "The term of office for all appointees to fill vacancies in any of the elective offices under this Constitution shall extend only to the first Tuesday after the first Monday in January next after the election and qualification of a successor", (Section 6, Article XVIII, of the State Constitution), and that "in all cases of election to fill vacancies in office such election shall be for that part of the unexpired term commencing on the first Tuesday after the first Monday in January next after such election." (Section 7, Article XVIII, of the State Constitution). (Above emphasis supplied.)
Section 230.19, Florida Statutes, F.S.A., relating to vacancies on the County Board of Public Instruction, provides that "all vacancies on the county board shall be filled by appointment by the governor", while Section 114.04, Florida Statutes, F.S.A., provides in part that in all cases in which a vacancy may occur, if the office be a county office (other than a member of the Legislature) "the Governor shall fill such office by 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."
Under the State Constitution I am required to commission all county officers before they enter upon the duties of their offices (Section 7, Article VIII, of the State Constitution). A vacancy has occurred in the office of one of the members of the County Board of Public Instruction for Indian River County, Florida, by reason of the resignation, which resignation has been accepted, of a member thereof elected at the general election in 1948 for a term beginning on the first Tuesday after the first Monday in January, 1949, and ending on the first Tuesday after the first Monday in January, 1953. I have filled the vacancy by appointment; however, by reason of uncertainty occasioned by reason of the advisory opinions reported in 154 Fla. 822, 19 So.2d 198 and in 159 Fla. 464, 31 So.2d 854, I am uncertain as to whether the appointee should be commissioned until the first Tuesday after the first Monday in 1951 or for the unexpired term ending at the same time in 1953.
Under the opinion reported in 154 Fla. 822, 19 So.2d 198, 199, in holding that the appointee in a like vacancy should be commissioned for the unexpired term, it was stated that "Section 6 of Article XVIII of the Constitution has no application because it is limited to vacancies in constitutional offices, the instant office being statutory." While in the opinion reported in 159 Fla. 464, 31 So.2d 854, involving two vacancies in a like office occasioned by reason of the increase of membership on the board, it was stated "that under the provisions of Sections 6 and 7 of Article XVIII of the Constitution of Florida it becomes your duty to fill these two vacancies."
If, as stated in the above opinion reported in 154 Fla. 822, 19 So.2d 198, Section 6 of Article XVIII of the State Constitution has no application, it seems that the commission should be issued for the unexpired term; however, if as stated in the opinion reported in 159 Fla. 464, 31 So.2d 854, said Sections 6 and 7 of Article XVIII of the State Constitution are applicable, it seems that the commission should be issued only to the first Tuesday after the first Monday in January, 1951.
I, therefore, request your advice and opinion as to whether the appointee to fill the vacancy aforesaid should be commissioned for the unexpired term or until the first Tuesday after the first Monday in January, 1951.
Thanking you, I am
Cordially yours, Fuller Warren Governor.
FW/ej
April 26, 1950
Honorable Fuller Warren Governor of Florida Tallahassee, Florida
Sir:
We are in receipt of your request of April 5, 1950, for the advisory opinion of this Court affecting your executive powers and duties as authorized by Section 13, Article IV of the Constitution, the pertinent part of which relates to filling a vacancy on the Board of Public Instruction of Indian River County and is as follows:
"Under the State Constitution I am required to commission all county officers before they enter upon the duties of their offices (Section 7, Article VIII, of the State Constitution.) A vacancy has occurred in the office of one of the members of the County Board of Public Instruction for Indian River County, Florida, by reason of the resignation, which resignation has been accepted, of a member thereof elected at the general election in 1948 for a term beginning on the first Tuesday after the first Monday in January 1949, and ending on the first Tuesday after the first Monday in January, 1953. I have filled the vacancy by appointment; However, by reason of uncertainty occasioned by reason of the advisory opinions reported in 154 Fla. 822, 19 So.2d 198 and in 159 Fla. 464, 31 So.2d 854, I am uncertain as to whether the appointee should be commissioned until the first Tuesday after the first Monday in 1951 or for the unexpired term ending at the same time in 1953.
"Under the opinion reported in 154 Fla. 822, 19 So.2d 198, in holding that the appointee in a like vacancy should be commissioned for the unexpired term, it was stated that `Section 6 of Article XVIII of the Constitution has no application because it is limited to vacancies in constitutional office, the instant office being statutory.' While in the opinion reported in 159 Fla. 464, 31 So.2d 854, involving two vacancies in a like office occasioned by reason of the increase of membership on the Board, it was stated `that under the provisions of Sections 6 and 7 of Article XVIII of the Constitution of Florida it becomes' the duty of the Governor to fill these two vacancies.
"If, as stated in the above opinion reported in 154 Fla. 822, 19 So.2d 198, Section 6 of Article XVIII of the State Constitution has no application, it seems that the commission should be issued for the unexpired term; however, if as stated in the opinion in 159 Fla. 464, 31 So.2d 854, said Sections 6 and 7 of Article XVIII of the State Constitution are applicable, it seems that the commission should be issued only to the first Tuesday after the first Monday in January, 1951.
"I, therefore, request your advice and opinion as to whether the appointee to fill the vacancy aforesaid should be a commissioned for the unexpired term or until the first Tuesday after the first Monday in January, 1951."
After the advisory opinion to the Governor in 154 Fla. 822, 19 So.2d 198, was promulgated and before the opinion in 159 Fla. 464, 31 So.2d 854, was promulgated the legislature enacted Chapter 23726, Acts of 1947 which revised many provisions of Florida Statutes 1941, sometimes known as the Florida School Code. Under the latter act the county Board of Public Instruction in all counties was required to be composed of five members, while prior to that act some were composed of three and some of five members. The said act also made changes in the manner of electing members to county school Boards but made no change in filling vacancies thereto. These and other changes no doubt account for differences in the opinions.
As the Governor was advised in 154 Fla. 822, 19 So.2d 198, members of county boards of public instruction are statutory elective officers. They are created by Section 230.04 and nominated as provided by Section 230.08, Florida Statutes of 1941, as amended by Chapter 23726, Acts of 1947, F.S.A., §§ 230.04, 230.08. Section 230.19, Florida Statutes 1941, F.S.A., provides that "all vacancies on the county board [of Public Instruction] shall be filled by appointment by the governor." Chapter 23726, Acts of 1947 made no change in the latter statute.
The vacancy involved in the advisory opinion, 159 Fla. 464, 31 So.2d 854, was one created by Chapter 23726 which required that all County Boards of Public Instruction be composed of five members, while that involved here has to do with a vacancy caused by the resignation of a member of the Board of Public Instruction of Indian County who was elected at the general election in 1948, for the term beginning Tuesday after the first Monday in January 1949 and ending Tuesday after the first Monday in January 1953.
You are advised that such a vacancy should be filled for the unexpired term as contemplated by Section 230.19, Florida Statutes 1941, F.S.A., and Section 7, Article IV of the Constitution as interpreted in Advisory Opinion to the Governor, 154 Fla. 822, 19 So.2d 198. His commission should therefore run to Tuesday after the first Monday in January, 1953.
Respectfully,
ALTO ADAMS Chief Justice
GLENN TERRELL Justice
ROY H. CHAPMAN Justice
ELWYN THOMAS Justice
HAROLD L. SEBRING Justice
T. FRANK HOBSON Justice
B.K. ROBERTS Justice