The term as fixed by the Constitution or statute creating the office is not to be confused with the tenure of an officer, and is not affected by the holding over of an incumbent beyond the expiration of the term for which he was appointed. State v. Young, 137 La. 102, 68 So. 241; Ham v. State, 162 Ala. 117, 49 So. 1032, 1033; 22 R. C. L. 552; State ex rel. Fish v. Howell, 59 Wn. 492, 110 P. 386, 50 L.R.A. (N.S.) 343; Clark v. State, 177 Ala. 188, 59 So. 259; State v. Amos, 101 Fla. 114, 133 So. 623. Until an appointment is made, the incumbent of the previous term holds over, but, when an appointment is made and the appointee qualifies, the previous term and the rights of the incumbent to the office are ended. People v. De Guelle, 47 Colo. 13, 105 P. 1110; 50 L.R.A. (N.S.) 377, note; 74 A.L.R. 495; People v. Knight, 116 Cal. 108, 47 P. 925.
Turning first to application of the last mentioned rule we find that "the evil sought to be remedied and the purpose to be accomplished" by the adoption of Section 33, Article V, Constitution 1885, readopted as present Section 14, Article V, has been recorded in the decisions of this Court on numerous occasions. Beginning with the case of State ex rel. Robert v. Murphy, 1893, 32 Fla. 138, 13 So. 705, 716; then in State ex rel. Hodges v. Amos, 1931, 101 Fla. 114, 133 So. 623, 625; again in State ex rel. Landis v. Bird, 1935, 120 Fla. 780, 163 So. 248, 262; and recently in our Advisory, 1957, 96 So.2d 541, we stated that this provision was adopted to change the rule announced in In re Tenure of Office of Circuit Judges, 1877, 16 Fla. 841. The rule announced in said opinion was that a judge of a circuit court, appointed by the governor and confirmed by the senate, held his office for a full eight years, and that no part of a previous eight years during which another had held the office (but had vacated it) entered into the computation of time for which the second appointee held.
" (Emphasis supplied.) See also State ex rel. Hodges v. Amos, 133 So. 623, 625 (Fla. 1931), noting that this section contemplates that an incumbent `shall continue in office, or perform the official duties of the office after the expiration of his official term . . . until his successor is duly qualified. . . .' Because of his constitutional duty to hold over until his successor was duly qualified, an incumbent officer was deemed to be a de jure officer until the qualification of his successor.
Her term expired at midnight on December 2-3, and, at that point, there was a legal vacancy. See State v. Amos, 133 So. 623, 625 (Fla. 1931). Ms. Makosky's appointment to fill that vacancy was for the unexpired term of five years commencing December 3, 1997, and extending until midnight separating December 2-3, 2002.
"* * * The provision of Section 14, article 16, that an officer shall continue in office after the expiration of his official term until a successor is qualified, is intended to prevent a hiatus State, ex rel. v. Murphy (In re Com'rs of Duval County), 32 Fla. 138, 161, 13 So. 705; In re Advisory Opinion, 65 Fla. 434, 62 So. 363, 50 L.R.A. (N.S.) 365; 22 R.C.L. 550, and does not affect the cycle of the term fixed by law which ends at the expiration of the statutory term periodically whether the incumbent or another is the successor; otherwise the organic limitation as to terms may be violated by an officer holding over for a length of time after his term has expired and then being commissioned for a full term from the date of the commission and not from the end of the previous term as the Constitution contemplates." ( State v. Amos, 101 Fla. 114, 133 So. 623, 625.) The distinction between "term" and "tenure" is, in my opinion, further mandated and intended by certain of our Revised Laws themselves.
The defendant cites a few cases as reaching a different conclusion from that which we have stated. Of these, Johnson v. Mann, 77 Va. 265, is distinguished in the later Virginia case of Chadduck v. Burke, supra; State ex rel. v. Murphy, 32 Fla. 138, 13 So. 705, and State ex rel. v. Amos, 101 Fla. 114, 133 So. 623, were decided under provisions of the constitution of Florida so peculiar as to distinguish them; and we decline to follow State ex rel. Withers v. Stonestreet, 99 Mo. 361, 12 S.W. 895, State ex inf. v. Williams, 222 Mo. 268, 282, 121 S.W. 64, and State v. Cocke, 54 Tex. 482. Unless there is some legislative intent disclosed in the statute now before us which takes this case out of the general rule, the failure to effectuate an appointment during the session of the General Assembly in 1945 did not create a vacancy in the office which the governor was authorized to fill but the plaintiff continued in office de jure and not de facto under the provision that his term should be for four years from June 1, 1941, and until his successor was duly appointed and qualified. It was undoubtedly the primary intent of the legislature that an appointment should be made to the office in every fourth year and in so far as the inaction of the senate in 1945 prevented that result that feature of the l
The courts of a few states dissent from this view. State v. Young, 137 La. 102, 68 So. 241; Denison v. State (Tex.Civ.App.) 61 S.W.2d 1017, 1021; State ex rel. v. Amos, 101 Fla. 114, 133 So. 623; but see State ex rel. v. Landis, 122 Fla. 312, 165 So. 271. Counsel for respondents also cite us to Kline v. McKelvey, 57 W. Va. 29, 49 S.E. 896, but that decision turned upon the provisions of a statute, and it was so constructed in Berry v. Berry, 165 Miss. 472, 144 So. 695. Counsel also cite us to State ex rel. v. Crawford, 36 N.D. 385, 162 N.W. 710, and State ex rel. v. Scow, 38 N.D. 246, 164 N.W. 939. We consider these cases, with many opinions and some dissents, to be of doubtful authority.
This is shown by the stipulation to be true, but it does not follow that it is determinative of the issue in this case. It is the universally accepted rule that if a term of office to be filled by appointment is fixed by law, that any attempt by the appointing power to change the term so fixed is void. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696; State v. Willott, 103 Neb. 798, 174 N.W. 429; People v. Mizner, 7 Cal. 519; State ex rel. Hodges v. Amos, 101 Fla. 114, 133 So. 623. We, therefore, must consider the second contention of plaintiff, which is that the history of the statute shows plainly that it was the intent of the legislature that defendant's term of office should expire on the first Tuesday in April, 1939. This section first appeared in our law as Act No. 65 of the Session Laws of 1903, in the following language: "Section 1. There is hereby established a Territorial Board of Health, composed of a president, a vice-president and a superintendent of public health.
The Governor has authority to fill vacancies in State, district and county offices. Sec. 464 (399) C. G. L. The law and not the commission issued to an officer controls as to the term of office. State ex rel. v. Amos, 101 Fla. 114, 133 So. 623. Where a person elected to an office dies before the beginning of the term for which he was elected, there is a vacancy in the office when the term begins, which may be filled as provided by law even though the incumbent of the office at the expiration of the previous term continues in office after the expiration of his official term until his successor is duly qualified as provided by Section 14, Article XVI of the Constitution. Section 6, Article XVIII of the Constitution, is applicable where a vacancy in an elective office occurs when the remainder of the term in which the vacancy occurs extends beyond the next ensuing general election, in which case an appointment to fill the vacancy "shall extend only to the election and qualification of a successor at the ensuing general election."
Cycle terms of office begin with the first appointments unless otherwise provided by law. State v. Bird, 163 So. 248, 254 (Fla. 1935); State v. Amos, 133 So. 623, 625 (Fla. 1931). See also, State v. Bloodworth, 184 So. 1, 6 (Fla. 1938).