Opinion
No. 42978.
June 13, 1973.
It appearing to the Court that by virtue of the opinion in the District School Board of Lee County, Florida et al. v. Askew, as Governor of the State of Florida et al. Fla., 278 So.2d 272 (Opinion filed April 4, 1973), and Senate Concurrent Resolution No. 481 (filed in the Office of Secretary of State on April 25, 1973), appointing O. Ernest Ellison, Jr., as the auditor required by Fla. Const. art. III, § 2, F.S.A., the issues presented in this appeal are now moot and it is therefore,
Ordered that this appeal be and is hereby dismissed ex mero motu.
CARLTON, C.J., and ROBERTS, ADKINS, McCAIN and DEKLE, JJ., concur.
ERVIN, J., concurs specially with Opinion.
BOYD, J., concurs specially and agrees with ERVIN, J.
I am unwilling to resolve the issue of the validity of the legislative appointment of O. Ernest Ellison, Jr., as Auditor General solely on the ground of mootness because the Legislature after the institution of these proceedings passed a concurrent resolution reappointing Mr. Ellison to the office of Auditor General. To let the matter rest on that basis leaves open questions of the validity of prior official actions of Mr. Ellison and whether his "reappointment" has retroactive operation. It also leaves unsettled questions of legislative prerogatives as to methods it may adopt for exercise of its constitutional powers.
I think Mr. Ellison was validly appointed by the Legislature pursuant to Sections F.S., 11.41 and 11.42, F.S.A., in conformity with Section 2, Article III of the State Constitution. The manner or method selected by the Legislature for appointing its Auditor General (a noncommissioned employee, as distinguished from an elected or appointed public officer in the executive branch) lies within its unfettered discretion and prerogative. The means provided for the appointment by statute through delegated legislative committee action is solely within high legislative prerogative and is beyond challenge in the judiciary. Moreover, the doctrine of separation of powers would appear to indicate to the judiciary that a fitting deference be accorded the Legislature in its exercise of its internal authority in selecting the method for making an appointment of an employee. We should not subject the exercise of this appointive power to extraneous provisions of the Constitution which, e.g., provide the mechanics for enactment of bills or the appointment of public officials by the Governor. Nor should we conclude the method selected is an invalid delegation of authority.
BOYD, J., concurs.