DECISIONS

OF THE

Supreme Court of Florida.

AT TERMS HELD IN 1869-'70-'71.

STATE OF FLORIDA ex rel. EDMUND C. WEEKS, VS. ROBERT H. GAMBLE, COMPTROLLER.

Section 7, and Article V, of the Constitution of this State, 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 power to fill such vacancy by granting a commission, which shall expire at the next election:" Held,

1. That the power vested in the Governor by this section is not a power to fill the office for the unexpired term; that this power remains with the people, and that the power here conferred is to provide an incumbent for the office between the date of the removal or death of the regular incumbent, and the filling of the office by an election by the people.

2. That while the Constitution does not fix the precise time for the "next election," yet it is the duty of the authorities to see that the time of this election is not indefinitely postponed at the expense of the rights of the people.

3. Where provision is made by law for the salary of an officer, the drawing of a warrant by the Comptroller is a ministerial act, which may be enforced by mandamus, and the Court may, in such proceeding, determine whether the appointment of the officer is void, where there is no other incumbent of the office exercising its functions by color of right.

Mandamus to the Comptroller of the State of Florida. On the 24th of January, A. D. 1870, there being a vacancy in the office of Lieutenant Governor of the State of Flo

Weeks vs. Gamble—Argument of Counsel.

rida, the Governor of said State appointed and commissioned Edmund C. Weeks, the petitioner, as such Lieutenant Governor, who accepted, qualified and discharged the duties of said office for the first quarter of the year 1870. On the 7th of June, 1870, the petitioner made his requisition upon the Comptroller for his salary for the time stated. The Comptroller, denying that there was any power in the Governor of the State to make such.appointment, refused to issue his warrant. On the 8th of June, 1870, Edmund C. Weeks filed his petition in this Court setting up the fact of the vacancy in the said office, his appointment to fill said vacancy, his qualification and discharge of its duties, the making of a requisition upon the Comptroller for his salary for the past quarter, and the refusal of the Comptroller to issue the warrant as required. In accordance with the prayer of the petition, an alternative writ was awarded retnrnable on the 9th of June. To this writ the Comptroller filed his return at a subsequent day of the term, setting forth that the Governor had not at the time of the said appointment power under the Constitution and laws of this State to fill a vacancy in the office of Lieutenant Governor.

The question involved in the issue made up, is the authority of the Governor to fill a vacancy in the office of Lieutenant Governor at the date of the appointment of the petitioner. That there was a vacancy in the office at the time was admitted.

J. P. C. Emmons for Petitioner.

The relation is full and certainly presents a prima facie case of right to the office.

The return denies the constitutional right to appoint. Issue taken.

The Relator cites art. 5, sec. 7, of the Constitution of the State, and Laws 1868, pages 2 and 3, 33 and 34.

If in the laws 1868, page 34, the exception precludes the

Weeks vs. Gamble-Argument of Counsel.

Lieut. Gov. as an officer of the Legislature, then there is no provision in that law, and the power of appointment is under art. 5, sec. 7, of the Constitution.

If the Governor had the power to appoint, the salary is fixed at $2,500, payable quarterly on the requisition of the Lieut. Gov.; sec. 6, art. 16, Constitution.

The act required of the Comptroller is purely ministerial.

The Comptroller had no discretion but to obey the direction of the Constitution. This, if the applicant had the right to demand it.

That a court having jurisdiction of the writ will inquire into that right, and give all the relief necessary, and even inquire into the act of the Governor in granting the commission, and sustain the ground taken by the relator, see Marbury vs. Madison, 1 Cranch, 137; Danley vs. Whitely, 14 Ark. 687; Collins vs. State, 8th Indiana, 345; 8 B. Monroe, 648, which is full, citing Divine vs. Harvey, 7 Mon. 439, Kendall vs. U. S., 12 Peters, 524, and Marbury vs. Madison, before cited, and reviewing them.

These cases seem fully to sustain the positions taken by the relator.

George P. Raney, for Respondent.

Section 7, article 5, Constitution, provides:

"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 which shall expire at the next election."

The Relator relies upon this section for the validity of his appointment as Lieut. Governor by the Governor. Before the Governor can exercise the appointing power under this provision, there must be two concurring circumstances:

Ist. There must be a vacancy.

2d. There must be the absence of any mode provided by

Weeks vs. Gamble-Argument of Counsel.

the Constitution or by any existing law for filling such vacancy. Clark vs. Irwin, 5th Nevada, 127, et seq. If either of these circumstances is wanting, the Governor cannot appoint.

It is admitted that there was a vacancy when the appointment was made.

Admitting that the Constitution does not provide a mode for filling such a vacancy as existed in the office of Lieutenant Governor when the Relator was appointed by the Governor to fill such vacancy, it is still submitted that the laws of the State did provide a "mode," and this mode, Respondent contends, should have been pursued in filling the vacancy. This mode is provided by the 4th sub-division of the 3d section of an act entitled "An act to provide for the Registration of Electors, and the holding of Elections," (p. 2 acts of 1868,) which is as follows: "When, in any other case of a vacancy, not particularly provided for, the Governor shall in his discretion direct, special elections shall be conducted and the result thereof canvassed and certified in all respects in like manner as general elections."

Here is a mode provided by "the laws of the State" for filling the vacancy.

Preceding paragraphs of this 3d section provide for filling by special election all vacancies in all such State and County offices (except Governor and Lieutenant Governor,) as under our Constitution are elective. This 4th paragraph can then apply only to vacancies in the offices of Governor and Lieutenant Governor, and the office of Governor being filled, it could at the time of the appointment in question have applied only to a vacancy in the office of Lieutenant Governor.

The conclusion is that at the time the Governor appointed the Relator Lieutenant Governor, the laws of the State enacted under the Constitution (section 24, article 4,) did provide a mode for filling the vacancy, and that mode was a special election to be called when the Governor in his discretion should direct.

Weeks vs. Gamble-Opinion of Court.

The peculiar discretion vested in the Governor as to calling the election is confined to the time when he shall call it. By an abuse of this discretion he may fail to call it at all, but this does not change the character of the discretion.

It is not a discretion as to whether the vacancy shall be filled by special election or by appointment. The laws of the State provide for filling it by special election, and although this election is to be called at the Governor's discretion, yet the vacancy if filled must be filled by a special election.— The idea of filling it by appointment is repugnant to the character of the office under the Constitution, and this office being one of the few elective offices under our system, it is to be presumed that the Legislature intended to preserve to the people the right of selecting its incumbent.

The vesting of this discretion finds some explanation in the fact that the ordinary duty of the Lieutenant Governor is merely presiding over the Senate during the sessions of the Legislature, and that should a vacancy in the office occur on the approach of a general election, it would be useless or impolitic to put the people to the expense and trouble of a special election in the meantime, particularly so should no session of the Legislature intervene. As to Mandamus vs. Comptroller 3 Florida, 206; Brashear vs. Mason, 6 Howard, 92; Decatur vs. Paulding, 14 Peters, 513.

WESTCOTT, J., delivered the opinion of the Court.

The principal question involved in this case is the extent of the power of the Governor under Sec. 7, Art. V, of the Constitution. This section is as follows:

"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, which shall expire at the next election."

It is evident that the first thing to be considered in the construction of this sentence is, at what period of time the