Opinion
April 15, 1952.
Governor Fuller Warren, Executive Office, Tallahassee, Florida.
Sir:
We are in receipt of your request of March 3rd, 1952 for our Advisory Opinion, as follows:
"Honorable H.L. Sebring, Chief Justice and the Justices of the Supreme Court of Florida, Tallahassee, Florida.
"Re: Execution of laws; Small Claims Courts; disqualification of Judge
"Gentlemen:
"Under section 6, article IV, of the state constitution [F.S.A.], I am directed to take care that the laws of this state are faithfully executed, and under section 13 of said article IV, I am authorized 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.
"Small Claims Courts were established by the Legislature, under the authority vested in it by section 1, article V, of the state constitution, by special or local acts, in Putnam County, Florida, by chapter 26787, laws of Florida, acts of 1951, and in Citrus County, Florida, by chapter 26861, laws of Florida, acts of 1951. The said Small Claims Court in Putnam County, Florida, having jurisdiction in cases at law 'in which the demand and value of the property involved does not exceed $300.00' and in Citrus County, Florida, having jurisdiction in cases at law 'in which the demand or value of the property involved does not exceed one hundred dollars.' However, it appears that both of these acts are silent as to procedure and substitution of judges upon the entry of an order of disqualification of the judge of such court or courts.
"I am in receipt of orders of disqualification entered in cases pending in said small claims courts: one by the Honorable Edward L. Bush, as Judge of the Small Claims Court in and for Putnam County, Florida (in the case of Penton v. Huntley and Co., case No. 342) and the other by the Honorable O. Frank Scofield, County Judge and as ex officio Judge of the Small Claims Court in and for Citrus County, Florida (in the case Marion Cecil Stevens vs. Frank Dampier, doing business as Dampier's Department Store).
"Under section 38.09, Florida Statutes [F.S.A.], the procedure to be followed, in the event of the entry of an order of disqualification by a judge, is as follows:
"'Every judge of this state shall upon the entry of an order of disqualification mail a copy of said order to the governor. Upon receipt of a copy of such order the governor shall thereupon designate another judge to hear said cause. The original of such designation by the governor shall be mailed therewith to the clerk of the court in which said cause is pending and shall be by said clerk filed in the cause. In designating another judge the governor shall have consideration for the convenience of parties and their counsel; provided, however, that in the event any judge shall be disqualified as herein provided, upon application for any temporary writ of injunction or habeas corpus, he shall immediately enter an order of disqualification, whereupon said cause may be presented to any other judge of a court of the same jurisdiction as the court in which such cause is pending, and it shall be the duty of any such judge to hear and determine such matters until such substitute judge is so designated.'
"It is true that Section 38.11, Florida Statutes [F.S.A.], provides another method of substitution of judges in the event a judge is unable to act for any cause. However, this Court has held that Section 4 of Chapter 373, Acts of 1851, Comp.Gen. Laws 1927, Section 4348 (F.S. § 38.11 [F.S.A.]) insofar as it applies to disqualification of judges, was repealed by implication and superseded by Section 10 of Chapter 16053, Acts of 1933 (F.S. § 38.09 [F.S.A.]). See Sapp v. McConnon Co., 124 Fla. 879, 169 So. 622, and Storrs v. Storrs, 126 Fla. 213, 170 So. 728, cited in Cobb v. State ex rel. Pitchford, 148 Fla. 149, 3 So.2d 855.
"It is noted that Section 38.09 requires 'every' judge to mail a copy of the order of disqualification to the governor who thereupon is to designate a substitute judge. According to the principle that a statute must be given its plain and obvious meaning, see Maryland Casualty Company v. Sutherland, 125 Fla. 282, 169 So. 679, it seems that a small claims court is within the said statute. However, the main question is who may be designated by me. There now exists in this state small claims courts in many other counties, some presided over by county judges and justices of the peace as ex officio judges thereof and others by separate judges either appointed or elected.
"The Legislature, by chapter 26920, laws of Florida, acts of 1951, provided by general statute for the establishment in the several counties of small claims courts, such courts to be activated at the discretion of the boards of county commissioners of the several counties. However, this act does not seem to repeal special acts, such as those establishing small claims courts in Putnam and Citrus counties, supra. It is provided by section 9 of this general law as follows:
"'Whenever the judge of the small claims court shall be unable, from absence, sickness, or other cause, to discharge any duty whatever appertaining to his office, he may by order call in one of the justices of the peace to act in his place and stead, and such justice shall perform such duties and hear and determine all such matters as may be submitted to the judge of the small claims court.'
"The legislature at its 1951 session created more than twenty-five small claims courts, some with a one hundred dollar jurisdiction, some with a two hundred dollar jurisdiction, some with a two hundred and fifty dollar jurisdiction and some with a three hundred dollar jurisdiction; some of such courts to be presided over by county judges or justices of the peace as ex officio judges and others by separate judges. Many of these acts contain no provision for the substitution of judges, some provide for the county judge to act as substitute judge, some justices of the peace, and at least one (chapter 27268) provides for the calling in of an attorney and another for the assignment of a county judge by the governor (chapter 27340). The question of substitution of judges is material under many of the said acts creating small claims courts. Where the judge of a small claims court is disqualified or unable to act and there is no provision for the substitution of a judge to act in his stead I deem it my duty, in order to see that the laws are faithfully executed, to assign a judge in such cases, but am unable to determine from the statutes and laws who may be assigned, if assignment is necessary. Therefore, in order to perform my official duties, and see that the laws are faithfully executed, your answer to the following questions seem to be required:
"1. Is the provision for substitution of judges in small claims courts, found in section 9 of chapter 26920, laws of Florida, acts of 1951, applicable to small claims courts created by special or local laws so that no action on my part is necessary in order for the laws to be faithfully executed?
"2. If said section 9 is not applicable to local and special laws creating small claims courts, then under such local or special acts, whether presided over by separate judges (as in the Putnam county case) or by an existing officer as ex officio judge (as in the Citrus County case), where the presiding judge of a small claims court is disqualified or unable to act in a particular case or cases, and the act creating such court contains no provision for substitution of judges, and it becomes my duty to assign another judge, in order to take care that the laws are faithfully executed, should I assign a judge of another and like small claims court, or may I assign a justice of the peace or the county judge of the county wherein the said small claims court is located?
"Thanking you in this connection, I am
"Cordially yours, "(Signed) Fuller Warren Governor."
In answer to question No. 1, you are advised that Section 9 of Chapter 26920, Laws of Florida, 1951, is not applicable to small claims courts created by special or local laws. This chapter is a general law which authorizes small claims courts to be activated under certain circumstances. The jurisdiction of the Courts created under this Act is covered by Section 3, which provides:
"Said courts shall have civil jurisdiction in cases at law in which the demand or value of the property involved does not exceed two hundred fifty dollars".
Section 9 of the Act provides:
"Whenever the judge of the small claims court shall be unable, from absence, sickness, or other cause, to discharge any duty whatever appertaining to his office, he may by order call in one of the justices of the peace to act in his place and stead, and such justice shall perform such duties and hear and determine all such matters as may be submitted to the judge of the small claims court."
This section applies to a judge under that act and not to judges under local or special acts. Section 38.09 applies to judges of small claims courts created by local or special acts, where the local or special act makes no provision for substitution of judges.
In answer to question No. 2, under local or special acts where the presiding judge of the small claims courts is disqualified or unable to act in a particular case or cases and the act creating such court contains no provision for substitution or designation of judges, Section 38.09 applies, and if you have received an order of disqualification of such small claims court judge, you should assign a judge of another and like small claims court judge, or a justice of the peace of the county where the small claims court is located, or a county judge, under particular circumstances as they may exist. The General Act, that is, Chapter 26920, provides for the jurisdiction not to exceed $250. You could not assign a judge of a court having a jurisdiction of only $100 to sit in a court where the jurisdiction was $250. For example, the justices of the peace are constitutional officers and their jurisdiction is fixed by the Constitution in cases at law in which the demand or value of the property involved does not exceed $100. If no county court has been created pursuant to Section 8 of Article V of the Constitution, the jurisdiction of a county judge is also limited to $100, and you could only assign or designate a justice of the peace or county judge to a small claims court where the jurisdiction of such court did not exceed $100. On the other hand, if a county court has been created pursuant to Section 8 of Article V of the Constitution, then the county judge would have jurisdiction of all cases at law in which the demand or value of the property involved should not exceed $500 and the county judge could be assigned to any small claims court where the jurisdiction of such court was less than $500. In assigning a judge from any small claims court to another small claims court, the small claims court judge so assigned should have a jurisdiction equal to that of the disqualified small claims court judge.
You will note that the statutory and constitutional provisions with reference to jurisdiction fixes the maximum but no minimum jurisdiction. In the performance of your duties, you are not authorized to increase the jurisdiction of a judge by assigning him to a court having a higher jurisdiction than that prescribed for the court over which he presides.
With great respect, we are
Sincerely yours, H.L. SEBRING Chief Justice GLENN TERRELL ROY H. CHAPMAN ELWYN THOMAS T. FRANK HOBSON B.K. ROBERTS JOHN E. MATHEWS Justices