Upon further consideration of this cause on rehearing it is considered that the motion to quash the alternative writ herein should be denied.
Relator was appointed an inspector under Chapter 10149, Acts of 1925, of which Chapter 11998, Acts of 1927, is amendatory in certain respects. The latter amends the former by re-enacting the former Act with certain changes in language so that the "Division" of Inspection was by the 1927 Act thereafter designated as the "Bureau" of Inspection; the salary of the Inspectors, of whom relator was one, was increased from $1800 to $2400 per annum; and the method of payment thereof prescribed as hereinafter stated. Certain other changes in language occurred in the 1927 Act which were not material in this controversy. Those provisions of the Act of 1925 relating to the method of appointment, the tenure, and the discontinuance or termination of office of Inspectors, were unchanged by the 1927 Act. Neither the "Division" of Inspection created by the 1927 Act, nor the office of Inspector to which relator was appointed thereunder, was abolished by the 1927 Act. The changes pertinent to this controversy consisted merely of changed nomenclature, amounts of salary, and the added provision with reference to the payment of salaries, which will be hereinafter quoted, and which further strengthens relator's position in this controversy. *Page 215
The 1927 Act having merely re-enacted the 1925 Act, under which relator was appointed, by repealing the language of the Act with the changes stated, and not having abolished the office held by relator under the 1925 Act, nor the Bureau of Division in which that office was created and then existed, the 1925 Act was not abrogated or annulled by the 1927 Act, nor was its operation interrupted. The former was continued in effect by the latter. The 1927 Act is to be regarded as new legislation only in so far as it differs in substance from the 1925 Act. See Perry v. Consolidated, etc., School District,89 Fla. 278, 103 So. R. 639; Forbes v. Board of Health, 27 Fla. 189, 9 So. R. 446; Florida C. . P. R. Co. v. Foxworth, 41 Fla. 1, text 59, 25 So. R. 338.
Article 16, Section III, of the Constitution provides that "the salary of each officer shall be payable monthly on his own requisition." The relator performs under the statute all the former duties of a Food, Drug and Fertilizer Inspector for the Chemical Division of the Department of Agriculture, and other duties, and in addition is "vested with all power and authority and every obligation and restriction which are vested in other police officers." Relator is therefore a State officer. See Advisory Opinion, 76, Fla. 500, 80 So. R. 17; Chapter 11998,supra, Section 2.
If relator still held office for the period in question, he would be entitled to his salary on his own requisition. Advisory Opinion, 74 Fla. 250, 77 So. R. 102. Chapter 11998, Acts of 1927, Section 2, expressly provides that the salary of inspector in the Bureau of Inspection shall be "payable monthly in the same manner as other State officials." The latter provision is one of the amendatory features of the 1927 Act. Section 3 of the 1925 Act, which is left undisturbed, provides that all funds arising from fees collected under the Act shall be placed in a special fund *Page 216 created in the office of the State Treasurer, and the "expenses" incurred in carrying out the provision of the Act shall be paid from such funds upon warrant drawn by the Comptroller, which warrants shall be issued upon voucher approved by the Commissioner of Agriculture. If the provision just quoted purports to require the approval of the Commissioner of Agriculture upon the salary requisition of the inspectors as a prerequisite to the issuance of a warrant by the Comptroller, such requirement is necessarily in conflict with the Constitution, because the inspector is an officer and under the Constitution his salary is payable on his own requisition, regardless of the character of the fund from which it is paid. Of course, it is competent for the Legislature to require, as it has required, that inspectors' expense accounts shall receive the approval of the Commissioner of Agriculture before payment.
The relator continued to function as an inspector after the effective date of the 1927 Act, and since the latter Act did not interrupt the operation of the 1925 Act, relator is entitled to his salary until his tenure of office is lawfully terminated.
The language of Section 2 of the 1927 Act, with reference to the discontinuance of inspectors, or the termination of his term of office, is somewhat anomalous. Both Acts provide that the inspectors shall hold office "until such time as the Governor may deem proper to discontinue the services of such inspector, or until such time as the Commissioner of Agriculture may advise the Governor either that the services of such inspector are not satisfactory or that the services of such inspector are no longer required by the Bureau of Inspection." The Acts further provide that the commission shall run "during the pleasure of the Governor, not exceeding the term of four years, and the Governor is hereby expressly authorized to terminate the *Page 217 appointment of an inspector at any time when in his judgment the best interests of the State will be subserved by discontinuing the service of such inspector."
It is under the provision first quoted that respondent contends that relator's term of office was lawfully terminated on January 21, 1928, when the Commissioner of Agriculture advised the Governor that the services of relator were not satisfactory.
If the Act be construed to mean that the Commissioner of Agriculture alone may plenarily dismiss the inspectors, then they would not serve "at the pleasure of the Governor" as provided by the Act, but at the pleasure of the Commissioner of Agriculture as well. If the Commissioner of Agriculture possesses the power to plenarily dismiss the inspector it would be a mere empty formality for the Commissioner to "advise the Governor" that the services of the inspector "are not satisfactory" or "are no longer required," as the Governor, under that construction of the Statute, would have no power or duty to perform under such circumstances, the dismissal having been accomplished by the act of the Commissioner. If the statute be taken literally in this respect, the result would be that the term of an officer, appointed and commissioned by the Governor to serve during the pleasure of the Governor, could be plenarily terminated by the Commissioner of Agriculture, thereby effecting the dismissal of the incumbent, even though the Governor did not concur in such action, which is apparently the very situation now before us.
Article 4, Section XV, of the Constitution provides for the suspension by the Governor, and removal by the Governor by and with the consent of the senate, of officers not subject to impeachment. Even if the statute in this respect provides merely for terminating the period during which an appointed inspector may hold his office, as distinguished *Page 218 from a suspension or removal from office under the Constitution, upon the theory that these inspectors are not such officers as are contemplated by that Article, and that since they are working under the supervision of the Commissioner of Agriculture it was contemplated by the Act that the Commissioner should have the plenary power to dismiss them, then the anomalous result follows that the Governor may nevertheless under the provisions of the Act remove the inspector and terminate his tenure, even though the Commissioner of Agriculture did not concur in that action. If the Act be construed to mean that either the Governor or the Commissioner, acting alone and independently of the other, each possessed the plenary power of dismissal, such construction will lead, in cases of conflict in opinion between those officials, to the dismissal of inspectors by one, against the judgment of the other.
If on the other hand, the Act be construed to mean that the action of the Commissioner of Agriculture is advisory only, and that the ultimate and plenary power to dismiss an inspector reposes in the Governor, from whence the inspector's appointment came, such construction would not only render the Act more consistent with our general plan of government under the Constitution and Statutes, but also more consistent with the appointive power, which under the Act, is expressly reposed in the Governor, as to which there is no question, and who may appoint such inspector "as the same may be recommended in writing by the Commissioner of Agriculture." To so construe the statute eliminates the apparent anomaly of authorizing a cabinet officer to plenarily dismiss an appointee of the Governor, even though the Governor does not concur in that action. It, therefore, must have been the intention of the Legislature in passing the Act that Commissioner of Agriculture acts in an advisory capacity to the Governor *Page 219 in dismissals as he does in appointments, and that the ultimate and plenary power to remove, as well as to appoint, the inspector is reposed in the Governor. It would follow from such construction that relator would be entitled to his salary for the period in question, the Governor not having acted upon the advice of the Commissioner of Agriculture given on January 21, 1928, and the motion to quash the alternative writ should therefore be denied.
It is so ordered.
ELLIS, BROWN AND BUFORD, J. J., concur.