State ex rel. Robert v. Murphy (32 Fla. 138, 1893)

Raítiíy, C. J.:

In this cause Benjamin R. Powell, George A. De-Cottes and B. M. Baer, with J. D. Kelley and W. S. Pickett, were nominated by the Governor and confirmed as county commissioners of Duval county by the Senate at the session of the Legislature which met on the first Tuesday after the first Monday of April, 1891, and adjourned June 5th of the same year, and they were commissioned by the Governor on the 12th day of the-latter month. At the session of the Legislature con-veiling on the corresponding Tuesday in April of. the-present year, and adjourned on the second day of June, the Governor nominated for county commision-ers of that county Charles Marvin, T. Y. Porter, E. P. DeCottes, J. D. Kelly and W. S. Pickett,, but the Senate adjourned without taking any action on the-nomination; and subsequently on the 16th day of June the Governor commissioned the last named parties, each for a separate district, to be county commissioners 1 ‘until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed by the Senate.” Powell, George A. DeCottes and Baer claim they continue to be the lawful county commissioners by virtue of their former appointment; whereas the others are asserting their claim under the later commissions.

The Constitution (sec. 5 of Article VIII) ordains that there shall be appointed by the Governor, by and with the consent of the Senate, in and for each county five county commissioners, and that “their terms of office shall be two years,” and that one commissioner shall be selected from each of five districts of a county. The 14th section of Article XVI of the Constitution is, that ‘ ‘all State, county and municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified.’’ The contention of the Powell board is that they are continued in office by this section until the qualification of successors who may be nominated by the Governor and confirmed by the-Senate at some ensuing session of the Legislature, and that the Governor’s action in the appointment of the new or Marvin board was without authority of law.

There has been no decision of the precise point by this court. At the general election held November-6th, 1888, persons were elected to fill severally certain •county offices in Duval county, but they failed to give .bond and qualify within sixty days after their election; .and it was held in an advisory opinion rendered January 16th, 1889, to the then recently installed Governor, that the terms of such county offices beginning on the first Tuesday after the first Monday in January, 1889, had become vacant on account of the omission stated; and that he was authorized to fill such vacancies by appointments which would expire on the qualification of successors to be chosen at the general election in 1890. In this opinion several provisions of the ■Constitution are referred to; the controlling ones as to the power and its limitations being the 7th section of Article YIII, in providing that ‘ ‘if any person elected or appointed to any county office shall fail to give bond and qualify within sixty days after his election, the said office shall become vacant;” and Sections 6, 7 and 9 of Article XVIII, of which the first is, that “the term of office of all appointees to fill vacancies in any of the elective offices under this Constitution shall extend only to the election and qualification of a successor at the ensuing general election;” and the second, that “in all cases of elections to fill vacancies in offices the election shall be for the unexpired term;” and the last fixing the first Tuesday after the first Monday in November, 1888, and every two years thereafter, as the days for the election of all elective State and county officers “whose terms are about to •expire, or for any office that shall have become vacant.” As is mentioned in that opinion, the seventh section of the fourth or executive article 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 tlie unexpired term;” but it was held that the term of the executive appointment was limited not by this, but by the sixth section of the sixteenth article, supra. It was not thought then that the power and duty of the incumbents of the preceding terms to hold over under Section 14 of Article XVI, supra (State ex rel. Law vs. Saxon, 25 Fla., 792, 796-7, 6 South. Rep., 858; s. c. 30 Fla., 668, 700, 12 South. Rep., 218), was a limitation upon the power of the executive to appoint to fill the vacancies recognized by Section 7 of Article VIII to exist; nor is it so contended now; but, on the contrary, we understand the correctness of the conclusion reached in the advisory opinion to be conceded.

The primary question presented by the case before us is whether or not there was a vacancy in the -office of county commissioner of Duval county when the Governor commissioned the Marvin board. The position of counsel for the Powell board is that there was not a vacancy, and for the reason that the ■Constitution contemplates that the old commissioners shall continue in office until new commissioners, confirmed by the Senate on the nomination of the Governor, have “duly qualified;” that such commissioners and no others, as long as the old remain in office, are the “successors” of the latter within the meaning of Section fourteen of Article XVI. Of course it is not to be denied that it was the duty of the Governor to send to the Senate nominations for confirmation as he did at the last session of the Legislature; and we deem it entirely immaterial to the decision of this case to consid- • er whether the terms of such nominees, had they been confirmed, would have begun at the time of such confirmation, or not until the 12th of June, the day suc•ceeding the expiration of the two years named in the commissions of the Powell board, or at a still different time. Passing, as not meriting discussion, when the term actually began, there was still a term, either begun, or about to begin, which the law required to be filled by the action of the Governor, with the consent of the Senate. That it was the duty of the Senate to. act on these nominations, giving or refusing consent thereto, can never be seriously denied, except upon the hypothesis that the terms of the old commissioners had not expired in fact, and that consequently there were not yet any terms to fill. No such contention as this is presented. Assuming, what is not denied, that the nominations were lawfully made, there was at least a prospective vacancy in office which the Constitution contemplated should be filled by the Governor, with the consent of the Senate, and we are fully satisfied, even assuming that the two years for which the old board were confirmed had actually expired, that pending the session of the Senate there was no power in the Governor alone to appoint to fill a vacancy. Pending such session the old commissioners continued in office under Section 14 of Article XVI. They did not hold over, however, as furnishing the “mode” provided by the Constitution for filling the new term, but simply as filling a part of the newT term temporarily and, at least, until the Governor and Senate, both of whom were in a position to act, should do-so. The Governor and Senate, while in a position of present capacity to act, were the “mode” provided by the Constitution for filling the new term, and until they should do so, the organic law contemplated that the old commissioners should hold over '■‘■after the expiration of their oficial termsnot as holding apart of the official term, but simply as the lawful occupants of a part of another term until the appointing power capable of filling it, whatever that power may" be, should act and the appointee qualify. This holding over is necessarily not a limitation on the power of the G-overnor and Senate; it could not be because if. it were there could be no appointment to the new terms of offices after the expiration of the “official terms,” or during such post official holding; nor, if the advisory opinion is correct, was it a limitation upon the power of the Governor in the case covered by it, though of course as a matter of fact the old officers there held over into the new terms by virtue of the stated fourteenth section until the appointees of the-Governor qualified.

Of course it is not to be lost sight of that in the cases covered by the advisory opinion the people had acted at the time and in the manner provided by the Constitution for selecting the persons to fill the new terms, and the vacancy recognized to exist there had grown entirely out of tlie default of the persons selected to do their part in qualifying for their positions; and such default having extended beyond the period allowed by Section seven of Article YIII for qualifying, they forfeited the right which their election by the people gave them to hold the office, and it became “vacant” as declared by the Constitution in Section 7 of Article VIII; and this too, notwithstanding the provisions of Section 14 of Article XVI as to the holding-over of former incumbents. In the ca.se before us the-omission of a filling of the new term is, on the contrary, attributable solely to the fact that the Senate has-failed to take any action on nominations sent to it by the Governor. It, however, notwithstanding this dif-ieren coin the cases, cannot be denied that the advisory opinion is entirely inconsistent with the idea that the 14th. section of Article XYI was intended by the Constitution as the “mode” * * * provided by the Constitution for filling the new office, or as a limitation upon the power of the Governor to appoint. The conclusion of that opinion is predicated upon the theory that that section was not intended to continue the incumbent of the former term, chosen by thepeople themselves, in the new office until the people should act at the next, ‘ ‘ensuing general election’ ’ (sec. 6 of Article XYIII), and the subject of their choice at such election should qualify, but that it was intended to supply an incumbent until the Governor should act, and thereby to prevent an hiatus in government.

If the stated fourteenth section can be given the effect of having been intended to fill the neto terms of offices with former incumbents until the original power authorized to fill them does so, there is no room for doubting the illegality of Governor Mitchell’s action in the appointment of the Marvin board, or for questioning tiie right and duty of the Powell board to hold over till the Senate shall confirm successors to them, no matter how long that may be. Was that section intended to have this effect? There was no such general provision in the Constitution of 1868, of Avhich the present organic law is a revision, yet in the case of cabinet officers the provision was that they should hold their offices “the same time as the Governor, or until their successors shall be. qualified,” and in that of a county judge it was that he should hold his office for ‘ ‘four years from the date of his commission or until his successor is appointed and qualified,” and in the case of State attorneys it was the same, substituting “and” for “or.” Each of these officers was appointed by the Governor upon the advice and consent of the Senate. The sole provision in that Constitution as to appointments to fill vacancies was the the seventh section of Article T; which section corresponds to the 7th section of Article IY of' the present organic law, set out supra, the only difference being that the words * ‘which shall expire at the next election’ ’ appear in the old instrument in place of the words ‘‘for the unexpired term” in the new one. The first .Legislature assembled under that Constitution passed an act relating to vacancies in offices, approved August 6th, 1868, which, after defining certain vacancies, enacted that in all such cases, and in 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 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. Section 217, Rev. Stat. In the Advisory Opinion of February 5th, 1872, 14 Fla., 277, the validity of this statute was recognized in connection with the office of Attorney-General where a vacancy, other than at the commencement of a term, occurred in the office during the recess of the Legislature. There is no doubt that the practical construction placed upon the Constitution of 1868, from January, 1877, till it was supplanted in January, 1887 by the present revision, to say nothing of the prior eight or nine years of its operation, was that the old incumbent in the offices of county judge and State attorney should not hold over until the qualification of successors confirmed by the Senate, but on the expiration of their terms or commissions, in. the absence of the Senate, new appointments were made by the Governor to hold, as provided by the above act of 1868, sec. 217, Rev. Stat., supra. There is nothing in the practical working of the government, as to the office of Attorney-General, that is inconsistent with that as to the other two offices mentioned.

The position taken in behalf of the relator and the Powell board is based on authorities requiring careful consideration. In Pennsylvania, in the case of Commonwealth ex rel. vs. Hanley, 9 Penn. St., 513, where the newly elected officer died before his term began, and without having qualified, the provision of the Constitution was that the officers “shall hold their offices for three years if they shall so long behave-themselves well, and until their successors shall be duly qualified. Yacancies in any of said offices shall be filled by appointments, to be made by the Governor, to continue until the next general election, and until successors shall be elected and qualified as aforesaid.” It is said in the opinion that the fundamental error that lay at the root of the relator’s case, he having been appointed by the Governor on- the theory that there was a vacancy, consisted in the assumption that according to the spirit of the Constitution the tenure of county offices is strictly limited as to time, and that he was elected and commissioned only for this time, viz: three years, and that any extension of the time arises solely from the exigency of the case and must be strictly construed; and that this was plausible only by obliterating from the Constitution several important words. The meaning of the Constitution was held to be that regular incumbents could not hold office less than three years if they behaved, although on the happening of certain contingencies they might hold for a longer period, and that former incumbents duly elected and qualified. should bold until successors were “duly qualified,” and that “duly qualified” included an election by the people; but that the election did not of itself fill the office or. make a successor, but the party elected must also give bond and be sworn and commissioned, to be a “duly qualified” successor. That the Governor could appoint only where there was a vacancy, and there could not be a vacancy in an office where there was a person in possession, having a perfect right to exercise its functions and receive its emoluments; and further, that the primary object of the framers of the amended Constitution was to diminish as far as practicable executive patronage, and in accordance with this policy it was thought proper to confine the power of appointment to the single case where there was no one authorized to perform its functions. The decision was that the appointment by the Governor was illegal, .and that the defendant held over until some one should be elected by the people and duly qualified. In Missouri, in the case of State vs. Lurk, 18 Mo., 333, the statute provided that the state printer to be elected at ■each session of the legislature should hold his office ‘■for two years, commencing the first day of May next thereafter and until his successor shallbe elected and qualified.'''1 The legislature of 1852 failing to elect a printer at one session, the Governor made an appointment, and it was decided, one of the three judges dissenting, that the incumbent of 1850 held over. The sole question was held to be -whether or not the office became vacant on May 1st, 1852, and it was said that the public printer was a statutory office, and that it was to be taken as the clear intent of the statute that he should be the appointee of the assembly except in those cases arising after a person has been legally in office, wdiere it became vacant by death, or resignation, or like casualty, in which, cases the Governor was authorized to fill the vacancy. That under the express terms of the act, then, the former incumbent was in office when the Governor issued the commission to the relator, and was in under an election by the assembly; that the statute intended to continue him in office until a successor was elected by the body having-power to appoint such successor, and the failure of that body to make the appointment when it should have been made did not vacate his office. In California, in People ex rel. vs. Reid, 6 Cal., 288, where a statute provided that the legislature should elect a designated officer, and that he should hold “his office for two years, and until his successor is appointed and qualified,” and the legislature failed at one of its sessions to elect, it was held that the office became de jure vacant at the expiration of the incumbent’s term, and the Governor might appoint to the vacancy under the eighth section of the fifth article of the Constitution of that state, which was the same as the seventh section of our fifth article, substituting for the expression “for the unexpired term,” in the latter, the words “which shall expire at the end of the next session of the legislature, or at the next election by the people.” In the opinion in this case the Pennsylvania case and the former of the Missouri cases are referred to and disapproved; and it was said that the words “and until his successor is appointed and qualified” were only incorporated to prevents hiatus or interregnum occurring between the date of the termination of the office and the date of the successor’s entry upon his duties, and that in this interval he was a mere locum tenens. In People ex rel. vs. Mizner, 7 Cal., 519, that of Reid, and that of Mott, 3 Cal., 504, where a judicial district was created and the legislature failing to provide a judge, the Governor appointed one, were recognized as holding properly, that a vacancy arose from the failure of the appointing power to act. In People vs. Whitman, 10 Cal., 38, the party elected comptroller did not qualify, and the Governor appointed the relator to the new term, but the old incumbent refused to surrender the office. The provision of the Constitution was that he “should hold his office for two years from the time of his installation, and until Tiis successor shall he qualified^ Of this language it was said by the court, that the term of the office is fixed at two years certain, with a contingent extension, and that when the contingency happens the extension is as much a part of the entire term as any portion of the two years; that the language was just as clear and express that he should hold it until his successor was qualified, as for the two years; that both provisions relate to the term for which he should hold his office; and in effect, that the failure of the comptroller-elect to-qualify created no vacancy in the office, but a mere extension of the term of the particular incumbent. The decision of the court, Judge Field dissenting, was that the prior incumbent continued in office till the election and qualification of a successor. It is said in the opinion, in that the executive officers were elected by the people, and that under an elective system it is more proper that the officers should hold over than that the duties should devolve upon those in whose selection the people have no choice, and that it was only in cases where there is no incumbent of' the particular office to hold over that the system would allow the appointment of the executive to fill the office; and citing the case of Mizner, supra, where, we may remark, it is said that the secretary of state is the only officer created by the Constitution in which the executive constitutes any part of the appointing power, it is observed that the Constitution had studiously restricted the patronage of the Governor. People vs. Tilton, 37 Cal., 614, is a case in -which the officer was to be elected by the legislature in joint session, and was to hold “his office for the term, of four years and until his successor is elected, commissioned and qualified as in this act provided. ’ ’ The legislature failed to elect, and the Governor, holding there was a vacancy, appointed and commissioned the relator to the office. It was held that the next legislature might elect, and that until there was such an election the defendant, the old incumbent, held over. Two of the five judges dissented. The reasoning is about the same as that in the case of Whitman, it being also said, infer alia: “It was evidently intended by the legislature that the commissioners elected by the legislature should hold till another should be elected, notwithstanding one legislature might fail to act. It is provided in the 15th section that when vacancies occur in certain modes the Governor shall appoint to hold until it can be regularly filled in the appointed mode. But in all these cases there is no incumbent, lociom tenens, or party in any way authorized to discharge the duties of the office. The 15th section enumerates the cases in which it was intended that the Governor should appoint, and it must be presumed that it enumerates all such cases. It seems manifestly the intention of the legislature not to authorize the Governor to appoint in any case where there is a party authorized to discharge the duties of the office. Although the term has expired and the old incumbent only holds over till his successor is duly qualified, although he is not entitled to hold as the regular incumbent, of tlie term, lie is still a temporary incumbent and authorized- to discharge the duties of the position until a regular incumbent of the term duly qualified, presents himself. He is not merely acting defacto, but de jure, under the express authority of the law.” The provision is not that the old incumbent shall hold till the electing body has an opportunity of electing a successor, but till his successor is elected, commissioned and qualified as in this act provided; * * by a joint convention of the legislature; and not by appointment by the Governor. In People vs. Bissell, 49 Cal., 407, the defendant’s term of office, the office being one for appointment by the Governor and confirmation by the Senate, and the term being for four years, would have expired on November 29th, 1875. In July, 1874, the Governor, the legislature not being in session, appointed relator. Tn the opinion the views of the majority of the court in the case of Tilton are affirmed by at least two of the judges, a third- concurring “specially.” In Rosborough vs. Boardman, 67 Cal., 116. the opinion was expressed, People vs. Tilton, and People vs. Bissell, supra, and Strattan vs. Oulton, 28 Cal., 51, being cited, one of the judges not concurring therein, that a public office does not become vacant in that state except upon the happening of one of the events enumerated in the statute. In Indiana, Stewart vs. State, 4 Ind., 376, where no election was held for school trustee, who was to be chosen annually and continue in office till his successor is elected and qualified; and State ex rel. vs. Harrison, 113 Ind., 434, where the legislature failed to elect a successor of the incumbent- president of a Board of Benevolent Institutions, and decided under a section of the organic law, to the effect that the provision that an office should be held “for any given term should be construed to mean that such officer should hold for such term and until his successor shall have been elected and qualified,” the view expressed being that all offices to which it applied were held by the same title or by as high and lawful tenure, after the prescribed term, until the title of a duly elected and qualified successor, chosen by the same electoral body, attaches as before and during such term. In Ohio, State ex rel. vs. Howe, 25 Ohio St., 588, where a statute continued former officers and then provided that their “successors” should be appointed by the Governor with the advice and consent or the Senate, “to hold their offices for three years from the date of their appointment, and until their successors are appointed and qualified, unless vacancies occur from death, resignation or removal for cause, as herein provided;” and the defendant was thus appointed on April 16th, 1872, and the Governor appointed relator April 9th, 1875, the legislature not being in session, to hold for three years from April 16th, 1875; the act also provided that “vacancies in” such'offices “shall be filled as the original appointments are made, except when the general assembly is not in session, and then by the Governor, until the 20th day of the next session of the general assembly.” Section 3 of Article XV of the Constitution also providing as to such officers that the Governor should have power to fill all vacancies that might occur, until the next session of the general assembly, and until a successor to his appointee should be confirmed and qualified. In North Carolina, People vs. McIver, 68 N. C., 467, where the provision was that'the “terms” of the officers were “to commence on the first day in January after their election, and continue until their successors are elected and qualified,” sec. 1, art. 3, and sec. 13 of the same article ; it was also provided that “if the office of any such officers shall be vacated by death, resignation or otherwise, it shall be the duty of the Governor to appoint another until the disability be removed or his successor be elected and qualified.” In Michigan, People ex rel. vs. Lord, 9 Mich., 227, where the officer was to hold his office for four years, and “until a successor is elected and qualified.” In Maryland, Smoot vs. Somerville, 50 Md., 84, where the Constitution provided, as to all officers appointed by the Governor and Senate, that they'should be nominated to the Senate within fifty days of the commencement of the session, their term of office * * shall commence on a stated day, “and continue for two years, and until ‘their successors respectively qualify according to law,” and that in case of any vacancy during a recess of the Senate in any office which the Governor had power to fill he should make an appointment to last till the end of the next session, or until some other person should be appointed to the same office, such nomination to be sent to the Senate within thirty days after its meeting; and if a vacancy should occur during a session of the Senate in any office which the Governor and Senate have power to fill, he should nominate to the Senate before its final adjouxmment a proper person to fill the vacancy, unless such vacancy should occur within ten days before such adjournment. Here the Governor nominated a person for successor to an existing incumbent and the Senate rejected, and then he nominated another, and the Senate adjourned the same day without taking any action on it, and after the adjournment the Governor appointed the last named person. One of the judges dissented.

There are however, authorities of a contrary effect. In the case of State vs. Cocke, 54 Texas, 482, where an assessor of taxes was elected at a general election and failed to qualify within the time allowed, and some days after esignred, and thereupon the defendant was appointed and qualified. The person elected at the previous election, Bickford, had duly qualified .and entered upon the duties of his office ; Bickford claiming to hold over, sued for the office. The Constitution provided for an election of a successor, who should “hold his office for tioo year s and until his suc■cessor is elected and qualified.” A statute gave authority to the commissioner’s court to fill a vacancy for the unexpired term only, and until the election .and qualification of an assessor at the next general election. In the opinion it is said: “Under what circumstances an incumbent who is entitled to hold office until his successor is elected or appointed and qualified can lawfully hold over, has frequently been the subject of judicial investigation, and has given occasion to disagreement of opinion. The primary object of this provision that the incumbent is entitled to hold until his successor is elected or qualified is simply to ja-event, on grounds of public necessity, a vacancy in fact in office until the newly elected or appointed officer can have a reasonable time within which to qualify. The right of the officer who thus holds ■over is by sufferance rather than by any intrinsic title to the office. This view accords with the settled policy of our state Constitution restricting the duration of the terms of office.” It was held that the appointment was valid. In the opinion of Judge Field, in People vs. Whitman, supra, cited with approval in the Texas case just mentioned, it is said: “The existence of an incumbent and a vacancy in the same office at the same time is only impossible where the office is-of the same term. There is one office, but there are different terms in which it is to be held. It- may be filled for one term and vacant for the succeeding term. * * The Constitution limits the term of the office of comptroller to two years, but that there may be no interregnum between the expiration of his term and the entry of his successor, it also provides that he shall hold till his successor is qualified. The successor is to be designated in one of two ways: In the first instance the designation is tó be made by the /people, but if that fails to fill the office then the designation is to be made by the Governor. There is no difference between a vacancy occasioned by the failure of the person elected to qualify and a vacancy occasioned by his resignation immediately upon qualifying. If any other view could be sustained it would follow that ‘the old incumbent’ would hold for the entire term for which ‘the person failing to qualify’ was elected.” And in the dissenting opinion in Tilton’s case, 37 Cal., suprdj it was held that the legislature had no power to continue the old incumbent in office beyond four years, the constitutional limit of terms of statutory offices, without a selection, except as a mere locum tenens, to avoid an interregnum in office; and that the office would be vacant nevertheless, and subject to be filled by the Governor in the absence of other method designated by law. In Attorney-General vs. Burnham, 61 N. H.,594, the statute made it the duty of the incumbent prudential committee, a district school officer, to issue his warrant for the annual election by the voters of the district, and if he neglected to do so, a justice might do so on application, and if the officers were not chosen before a stated day a vacancy should be deemed to exist. The prudential committee and certain other officers were to hold their offices for one year of until others are elected or appointed and qualified in their stead, and the provision of another section of the statute was that whenever a vacancy occurs from any cause, the selectmen, upon application, are required to fill the vacancy; and the officers appointed hold their offices until new ones are legally chosen and qualified. Burnham, the defendant, was the old incumbent and claimed to have been re-elected at a meeting held under a notice which he had put up, but had been torn down at once through a conspiracy to which he was a party, which meeting was attended by less than one-tenth of the voters, and was not known of except by those who were privately informed. This election was held to be illegal, but it was further held that it was the intention of the statute that if the district failed to hold its annual meeting before April 20th, the offices should be deemed so far vacant that the selectmen may, upon application, appoint persons to perform the duties, but that in default of such appointment, or of an election, the incumbents of the preceding year shall hold over in order that there may be no interruption in the management of the affairs of the district; that after April 19th they were to be regarded rather as temporary occupants of the offices liable at any moment to be displaced by the appointees of the selectmen, or at the next annual meeting, if none are appointed.

It may be specially remarked of the Pennsylvania case that a failure to qualify, which was held there not to constitute a vacancy, has, at least in the case of all elective county officers, been made by an express provision of our Constitution to create a vacancy; and •our statute extends as well to the cases of appointments in offices, Rev. Stat-., Sections 214-217; and of this decision, and of all the others reaching the same conclusion, it may be safely affirmed that the purpose, attributed by them to the Constitution or statute under consideration, that the old incumbent should hold over to the exclusion of any appointment by the Gfov-ernor, is to be found in the effect of the language of the provisions and the fact of limiting the appointing power to cases of vacancy, coupled vdth the further idea that there can be no vacancy in an office where there is any person who has the legal right to exercise its functions and receive its emoluments. The disposition shown by the people in their organic law, or the legislature in a statute, to limit the power of the Governor, the fact that the failure of the regular or ordinary agency to appoint to, or to fill, the new term has not been made a cause of vacancy, and the idea of the wholesomeness of continuing an experienced official in office, are also ■ invoked by these courts as an auxilliary in reaching a conclusion. There is no purpose to question now the result which these several decisions have reached, though, as is apparent, they have not always commanded unanimous con-elusions; still it can not be maintained that the mere fact that a Constitution or a statute provides a person to fill a new term of an office, or to perform its duties until a successor is chosen and qualified, is' conclusive upon the question whether or not that successor can be chosen in any other mode than that by which the continuing incumbent was selected. That it has its weight in shaping the conclusion, can not be denied; but it is merely one fact to be considered -with such others as the law may present in forming a correct judgment as to the meaning of that law, whether organic or statutory.

The inquiry confronting ns is as to the purpose shown by our own system. There is in the language of the fourteenth.section of our sixteenth article a clear implication that the tenure of an old incumbent, after the expiration of the term prescribed by the Constitution or law, is not a part of the term for which he was chosen; or, in other words, that as to such time he has not, and it was not intended that he should have, an unexpired legal right to hold on to the office until a successor shall be chosen in the same way he was, as distinguished from any other way, or as implying that any other mode of selection was contrary to the intent of the Constitution. The use of the words “after the expiration of their official term,” is a recognition of a distinction in the nature of the tenure during that time and the subsequent time. The language implies and means that his • regular or permanent tenure has expired, and that it is now both temporary and a part of another term. It is different from that used in the Pennsylvania, and other cases cited supra, where he is to hold his office or their offices for a stated time and until his successor or their successors shall be qualified, or duly qualified, or elected and duly qualified. It is not consistent with the idea that the section was intended as anything else than authority to the former incumbent to hold until a lawful successor, constituted in whatever manner the Constitution may permit, shall qualify, and is inconsistent with the idea of giving such incumbent an adverse right to the place against any one except a successor chosen in the same way that he was. This view is clearly supported by a late decision in Virginia, where it was attempted .to impress on the Court of Appeals of that state the conclusions reached in Pennsylvania and other concurring states. The case is that of Johnson vs. Mann, 77 Va., 265. Johnson, the petitioner, was elected treasurer of Petersburg on the fourth Thursday in May, 1879, for the term of three years to commence July 1st, 1879, and qualified and continued in office for the full period; and at the election in May, 1882, Couch was elected for the term beginning July 1st, 1882, but failed to qualify within the time prescribed by law for so doing. The Constitution of Virginia (sec. 25, Article VI) declared that “judges and ail other officers elected or appointed shall continue to discharge the duties of their offices after their terms of service have expired, until their successors have qualified.” The charter of Petersburg conferred upon the corporation court the power to fill vacancies occurring in the office of city treasurer. Johnson claimed that under the above section of the Constitution, there was no vacancy, and that he was the rightful incumbent and entitled to hold over for the full term of three years, or until the term of the successor to be elected in 1885 should begin, there being no law for a special election. The decision of the court on a rehearing, modifying its former judgment, was that Johnson was entitled to hold over only until the qualification of a successor to be appointed by the hustings court to fill the vacancy. Speaking of the section of the Constitution, the court says: “It simply provided for the holding over by the incumbent after the expiration of his term until his successor shall qualify. The plain, unequivocal import of this section of the Constitution is that when the regular term expires, the office becomes in the eye of the Constitution, vacant, but with authority .to the incumbent already qualified, to continue by virtue of such previous qualification made effective for the purpose by the Constitution, to discharge the functions of the office until he is succeeded in the way-preferred by the people as pointed out in the Constitution and in the latvs made in pursuance of that instrument. The petitioner filled out his regular term; .and, under the constitutional provision being considered, is, to prevent evils which would flow from either an accidental or designed failure to qualify on the part of the person elected to succeed him, entitled to .go on in the discharge of the duties appertaining to the office, not f. is office, so far into the succeeding regular term as the time when his successor, legally selected, shall be fully equipped as an officer to take «barge of the office and perform its functions. * * The petitioner has filled out his full regular term and is simply holding on in this the succeeding regular term, until his successor shall come duly qualified to demand and have the office; and that successor, ex ■necessitate rei, can hold for the residue of the present regular term. * * It is idle to argue that it is an abuse of terms to say an office is vacant -when a person is rightfully in possession and discharging all the functions thereof. It is enough to reply that it is thus written in the law. The office of treasurer for the city of Petersburg * * is temporarily occupied by .a sort of locum tenens, a person designated by the Constitution, ‘ and there! y enabled to discharge the duties of the station or place until the coming of his successor, appointed and qualified as prescribed by law.”

The seventh section of the eighth article of our Constitution, when it declares that “if any person elected •or appointed to any county office shall fail to give bond and qualify within sixty days after his election, the said office shall become vacant,” means that the term which such person, so in default, was elected or appointed to fill shall, when the default became consummated, be deemed vacant to all intents and purposes, and not merely that the newly elected person should not longer have the right to fill it. Yacancy here means that the office is without such an occupant as precludes the filling of it in any mode which the Constitution may provide, or may recognize as lawful; that notwithstanding the incumbent of the former term may, and it is contemplated that he shall, continue in office, or perform the official duties of the said office after the expiration of Ms oficial term, and until his successor is duly qualified, still the office is vacant as to the new-term, in the sense that any office is vacant which is not occupied by a person chosen to fill it for such term. The elective county offices being1 vacant for the purposes of appointment, notwithstanding the provision of the fourteenth section mentioned, the filling of the same, in the absence of legislation, would be controlled by the seventh section of Article four, but for the provisions of Sections six and seven of the schedule, the former of which sections of the sixteenth article limits the executive appointment to the next regular election. Advisory Opinion, 25 Fla., 427, 5 South. Kep., 613. Failures to qualify even for the period of thirty days had long been a cause of vacancy, with a resulting executive duty to appoint. Acts of 1868, pi 35, McClellan’s Digest, p. 974. The purpose, then, of the mentioned fourteenth section being in the cases of these officers merely to provide' a person to perform the duties till the Governor may appoint, what is there in the Constitution to give it a different or other effect in the case of any other vacancy, or a vacancy in any other office, as to which the Governor may under any contingency have the power to fill a vacancy by appointment?

The present Constitution is a revision of the old one. In State ex rel. Weeks vs. Gamble, 13 Fla., 9, the seventh section of the fifth article of the old instrument was construed, and it was held that the words “next election” confined its application to elective officers, and that under it the Governor had the power to fill the vacancy occasioned by the ouster, by judgment of this court, of the former incumbent, who was found not to have been eligible for the place at the time of his election, but that the executive appointment extended only till an election should be held, and that it was the duty of the authorities to call an election within a reasonable time; or, in other words, to see that the election was not postponed at the 1 expense of the rights of the people. Though the statutes proyided for a special election in this case, the de-cison of the court was that this did not supply all the necessities of government, and that an appoinment until the choice at an election and the qualification of the person then’chosen, was necessary to prevent a hiatus in government. The change made by the revision of the Constitution is to be found in the use of the words ‘ ‘by granting a commission for the unexpired term,” for ‘ ‘by granting a commission which shall expire at the next election.” The effect of this change is two-fold: Pfirst, it makes the section applicable to appointive as well as elective officers; and second, it vests the appointee with the unexpired part of the term, and not merely till an election or other appointment, and the result is that wherever the Constitution and statutes are both silent as to the mode of filling any particular' vacancy which may occur in any elective or appointive office, .then the Governor is to fill it for the unexpired term. It is apparent that the purpose of the convention and the people in this change was, in so far as this section, alone shows, to extend the Governor’s power of appointment both as to the classes of cases to which it should apply, and as to the tenure of the appointee. But as appears from the advisory opinion first mentioned above (25 Fla., 427, 5 South. Rep., 613), this purpose has a modification to be found in the sixth section of the eighteenth article, which reads 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 election and qualification of a successor at the ensuing general •election.” The purpose of the latter section is that appointees to any vacancy in an elective office should not hold for the balance of the term, but only till the next general election, if one intervenes; and while it ■operates as a limitation of the terms prescribed by Section 7 of Article IV, it also shows that it was contrary to the judgment and will of the people that there should be special elections to fill vacancies in elective offices, and to this extent it is a limitation on the legislative power as to filling such vacancies by special elections.

The seventh section of Article eight which makes, as did the statute before it, a failure to qualify a vacancy in office, is not the only vacancy recognized by the revised organic law. The fifth section of the eighteenth article provides that “all vacancies occurring by limitation of terms before the general election in 1888, shall be filled as provided for by law, under the Constitution of 1868.” The third section of the same article ordained that “all persons holding •any office or appointment at the ratification of this Constitution shall continue in the exercise of the duties thereof according to their respective commissions or appointments and until their successors are duly qualified, unless by this Constitution otherwise provided.” The last six words refer to offices not so continued. Considering these sections together we see the framers of the Constitution regarded the expiration of a term a recognized termination of an office (Johnson vs. Mann, 77 Va., 265, 270), as creating a vacancy notwithstanding the provisions of the third section, and that the third section did not cut off or preclude the power of the chief executive to fill it, and did not fill such vacancy permanently or in the manner contended for on behalf of the Powell board in this case; but only as a locum tenens. If it had understood that the third section would have such an effect as is claimed here for the fourteenth section of the sixteenth article, the fifth section would not have been ordained. Its presence is accounted for only by the fact that the third section was not to have such effect. It is of course true that these sections relate to officers which were continued by the revised instrument, and the fifth section was not to have any effect after the first election under such revision, still it is plain that as to the first two years of the operation of the new instrument the purpose was that old incumbents should not hold over after the expiration of their terms, as a limitation upon the executive power of appointment, but that notwithstanding the other or third section the expiration of a term should create a vacancy, and that if it occurred during a recess of the Senate, the Governor should have the power to appoint under the statute of 1868.

In the corresponding articles of the Constitution of Ohio there was a simple provision that the officers continued by it in office should continue in office until their successors should be chosen and qualified, but none as to vacancies to be created by the’ expiration of terms, and it is invoked by the court in State ex rel. vs. Howe, supra, as showing that the Constitution did not recognize such expiration ■ as creating a vacancy. Seeing thus that the Constitution recognized expressly, that the expiration of a term of an office created a. vacancy for the purpose of filling it by executive appointment, during the two years period referred to,, and although another section provided an incumbent' in the nature of that provided by Section fourteen of Article sixteen for subsequent years, what is there in the instrument that would authorize or justify us in holding that the word “vacancies,” used in the sixth section of the eighteenth article, when it says 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 election and qualification of a successor at the ensuing general election,” does not include a vacancy occasioned by an expiration or limitation of terms, or that Section seven of Article four does not? If Section three furnished an incumbent as it clearly did, why nevertheless should the framers of the Constitution have provided that the appointing power-should still exist, and yet be held not to have intended to retain the same power in the permanent workings, of the same instrument, through Section seven of Article four, notwithstanding Section fourteen of Article-sixteen, or when there was no one to- fill the term but a: former incumbent under the last stated section? It. was the uniform policy of the Constitution that, the Governor’s power of appointment should not be limited by either Section three of Article- eighteen or Section fourteen of Article sixteen. These, several sections clearly indicate that the section last mentioned was not understood, or used, or intended, to have the effect claimed for it, but, on the contrary, was intended merely to prevent a hiatus in government until there should be a choice of some one in some legal mode for the vacancy.

There is, except it be as to the office of Governor, Section nineteen of Article four, in the Constitution nothing else that indicates what shall constitute a vacancy, unless it be a removal under Section fifteen of Article four, by the Governor and Senate, as does any judgment of ouster rendered by a competent tribunal. Nor is there in the instrument anything that militates against the idea that a new term which has not been filled is a vacancy. The Legislature being in session as it was, and the new term being vacant in so far as the power and duty of the Senate to fill it, why is it not also vacant for the purpose of being filled when the Senate adjourns without filling it ? It is in no different condition as to an occupant in the person of the old incumbent than it was before the adjournment, nor than a new term of an elective county office of which the party elected has made default in qualifying. The policy of the Constitution ig that where elective officers are chosen and they do not qualify, there shall still be a vacancy, notwithstanding the provision of Section fourteen of Article sixteen, and there is nothing in the instrument from which it can be inferred that its policy is that no vacancy will exist where there is an expiration of a term, and there has been a failure of the appointing power, or a part of it, to act. The vacancy which arises in the one case from the failure of the officer to qualify is no less* actual than that which continues, in the other case, after the adjournment of the Senate, from its failure to act, or even its refusal to assent to a nomination. The failure of the Senate to act does not create the vacancy. That existed in the eye of the laxo when the Senate was called, on to act; it xoas made by the expiration, actual or prospective, of the preceding term. The words ‘ ‘duly qualified’ ’ can not, consistently, be given any greater force in one case than in the other. If they do not. in the former •case, secure the old incumbent the right to hold until the next regular election, or prevent the Governor from exercising the appointing power, then they can not in the latter case. For the reason that no special election can be held, the power to appoint exists until the next general election is held; and for like reason ■when the Senate ceases to be in session the Governor may appoint in the interim. State ex rel. Fritts vs. Kuhl, 51 N. J. (Law), 191. No other “mode’’ of filling the vacancy exists or is' provided by the Constitution or laws in the one case until the time for the general election is reached; nor, in the absence of legislation, is any in the other until the Senate assembles again. It is not natural or reasonable to give to the fourteenth section of the sixteenth article one effect as to one class of officers, and another as to a different class, unless there is something in the Constitution which clearly shows it was intended that it should have such a variant effect. It would be very difficult moreover to find any substantial reason why the framers of the Constitution, or the people adopting it, .should be willing that the Governor should fill by appointment for the period of nearly two years a new term of an elective office, vacant by reason ■of the choice of the people having failed to .qualify, and should not be allowed to do so in the case of an appointive office, the creature of the Governor with the assent of the Senate. If the ussent of the Senate is such a guarantee of efficiency or other official merit in the latter case, why is not the sole and direct choice of the people equally essential in the other? And if the experience of the old incumbent in the case of the appointive office, is so valuable, why is it not so where the officer is elected by the people? These' considerations must have addressed themselves to the judgment of the convention in framing, and to that of the people in acting upon the instrument, and finding that as relating to elective officers they were ignored, there is no ground for incorporating them into the policy of the Constitution as to appointive officers. Not only is there no express provision which justifies it, but, on the contrary, there is much in the nature of the instrument which repels the idea that such was the intention of the instrument. It is not an instrument which shows any of the conspicuous jealousy of executive power, which is the subject of remark in some of the opinions quoted from above. It is very true that the calling of the convention which framed this instrument was the result of the opposition among the people to the vast executive power which distinguished its predecessor; yet throughout the State and in that convention there was a very deep and serious conviction that a retention of a great deal of executive power was essential to the welfare of a large and very important portion of the State, and the Constitution shows that although a majority of other counties may, in so far as their own separate interests are concerned, have preferred that the very least power should be given to the Governor, yet they felt that great concessions were due to the people of these counties and to the common interests of the State in so far as they could be affected by the concerns of the latter counties. And, as a result of this feeling, we see that not only circuit judges, judges of criminal courts of record, State attorneys, county solicitors and county commissioners, made appointive by the Governor, with the consent of the Senate, bnt we find also that all officers except the Supreme Court and Circuit Court judges and cabinet officers may be suspended by the Governor until the next session of the Senate, for alleged misfeasance, or malfeasance, or neglect of duty in office, drunkenness or incompetency, and may be removed by the Governor and Senate on charges, of the character stated, preferred by the Governor, and without any inquiry into the same before any of the courts; and during such suspension the Governor has power to fill by appointment any office, the incumbent of which shall have been suspended. We find also that it was provided that any new office which the Legislature may create was to be filled by the people or by the Governor, and that the election of such officer can not be given to the Legislature alone. Section 27 of Article III. . Certainly a frame of government having these provisions can not be said to present great sensitiveness as to executive power; but must be acknowledged to present a palpable recognition of a grave necessity for the exercise of power which under different conditions would have been withheld from an executive and retained in the people, and in other instances confided solely to the courts.

The legislation in this State on the subject of vacancies is, as is apparent from language quoted above from the act of 1868, not exclusive of, but expressly recognizes that other causes of vacancy than those specified in it may exist; and hence it cannot be invoked as the legislation of California has been in the later decisions there.

The Maryland decision is founded on the several provisions of the Constitution, and the remark in one of the opinions tliat tlie expressions ‘ ‘and until Ms •successor shall be appointed and qualified, ” or “until his successor shall qualify,” and asimilar remark in Mechemon Public Officers, has been the subject of frequent judicial determination of courts of high authority, and the construction of those terms has been fixed and settled, are not fully borne out by the authorities; but is, as the conflict of authority shows, ■still a matter open for discussion and decision where-ever it has not been settled.

The convention is to be accredited with knowledge of the different constructions which the words, or those of like nature; had received, and with the previous practice of our government as to offices as to which they were used in the former Constitution, and ■conceding that the view to which the Constitution gives support is that the fourteenth section was intended for the purpose of supplying the guarantees against a hiatus in government, which are naturally supplied by a former incumbent, when there is one, continuing to act until the term can be filled, and not -as a limitation upon any of the powers granted by the Constitution. The purpose of the Constitution was that a vacancy not filled in the regular manner, was nevertheless a vacancy, and where the law does not provide for filling as is contemplated by Section 7 of Article IY, this section covers it. The second section of the act of 1868 (sec. 217, Rev. Stat.), has been recognized by the executive branch of the government as providing a mode for filling it, until the Senate can act, and if that does not, then the case stands under the section of the Constitution last referred to. There has been no conflict between the legislative and the executive brandies on this question, as there was in; Ohio, as indicated by the opinion in State ex rel. vs. Howe, supra.

As to the argument founded upon possible official ■ delinquency in the G-overnor, we can well answer in the language of the New Jersey court, in the case of State ex rel. Fritts vs. Kuhl, supra: “The possibility of abuse loses its significance the moment we distinguish between power and duty. The question of power alone can be considered by this court. For