The record in this case shows that on and prior to the 3rd day of June, 1943, there was a vacancy in the office of additional circuit Judge in and for the Eleventh Judicial Circuit of Florida by reason of the resignation of Hon. Worth W. Trammell; that on the 3rd day of June, 1943, the Legislature was in regular session at Tallahassee, Florida and on that day the then Governor of Florida presented the name of Marshal C. Wiseheart to be approved by the Senate to be appointed Circuit Judge to fill such vacancy and the said Senate on the said date confirmed said appointment; that on the 4th day of June, 1943, Marshall C. Wiseheart, being then a member of the House of Representatives of the Florida Legislature, resigned his office of Representative from Dade County and thereupon a commission was issued to him as Circuit Judge to succeed the Honorable Worth W. Trammell, resigned.
On the 3rd day of June, 1943, while the said Marshall C. Wiseheart was a member of the Legislature of Florida, the Legislature enacted chapter 22,153, Laws of Florida, which is as follows:
"Chapter 22,153. — (No. 519) House Bill No. 1030. An Act Providing for Supplementary Compensation to Circuit Judges in Counties having a population of 260,000 or more inhabitants to be paid by the County and making same a County purpose.
"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF FLORIDA:
"SECTION I. Each Circuit Judge, a citizen and resident of a County having a population of 260,000 or more inhabitants according to the latest Federal Census shall be paid annually in equal monthly installments by such County, an *Page 277 additional supplementary compensation equal to 10 per centum of such annual compensation paid him by the State and same is hereby made a county purpose; nothing herein contained shall in any wise be given consideration in calculating the emoluments of the office provided by any other law. Nothing herein shall operate to increase the salary or emolument of any Circuit Judge who shall be appointed to office during the time for which he was elected Senator or Member of the House of Representatives, and each such Circuit Judge shall receive, during the term for which he shall be appointed, the salary and emoluments, which under the provisions of law, appertain to such office at the beginning of the time for which he was elected Senator or Member of the House of Representatives as aforesaid.
"SECTION 2. Nothing herein contained shall be taken or construed to repeal any law or laws and same is intended to be cumulative in effect and shall be so construed.
"SECTION 3. This Act shall take effect upon becoming a law."
"(Became a law without the Governor's Approval. Filed in Office Secretary of State June 14, 1943.)"
It will be observed that Section 1 of this Act increased the emoluments of the Circuit Judges of Dade County in the sum of 10% of the annual compensation paid him by the State. Section 2 of this Act attempted to make any then Member of the Legislature otherwise qualified eligible for appointment of Circuit Judge by providing that the amendment increasing the emoluments should not apply to a Circuit Judge who should be appointed to office during the term for which he was elected Senator or Member of the House of Representatives.
Section 5 of Article III of the Constitution provides:
"No Senator or Member of the House of Representatives shall during the time for which he was elected, be appointed or elected to any civil office under the Constitution of this State that has been created, or the emoluments whereof shall have been increased during such time." *Page 278
Section 43 of Article V of our Constitution provides:
"Section 43. — Legislature May Provide for Additional Circuit Judges. — The Legislature may from time to time and as the business of any Circuit requires, provide for the appointment of one or more additional Circuit Judges for such Circuit. Each such additional Circuit Judge shall be appointed by the Governor and confirmed by the Senate, and hold office for Six years, and shall receive the same salary and allowances for expenses as other Circuit Judges."
Paragraph C of Sec. 45 of Article V of our Constitution is as follows:
"There shall be one Circuit Judge to each Judicial Circuit but additional Circuit Judges for Judicial Circuit may be provided for by law as authorized by Section 43 of Amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any one judicial circuit shall not exceed one circuit judge for every fifty thousand inhabitants, or major fraction thereof, after this amendment shall have been put into effect."
On June 24, 1946, while Marshall C. Wiseheart was continuing to exercise the functions of Circuit Judge under the appointment made as aforesaid, the Honorable Millard F. Caldwell as Governor of Florida appointed N. Vernon Hawthorne as Circuit Judge to fill the office which had theretofore been occupied by Marshall C. Wiseheart and on July 1, 1946, a commission was issued to N. Vernon Hawthorne for the unexpired term of such Judgeship ending on the first Tuesday after the first Monday in January, 1949.
Section 46 of Article V of our Constitution was adopted at the general election in 1942 and is as follows:
"Section 46. Circuit Judges, Election, Terms, etc. — Circuit Judges shall hereafter be elected by the qualified electors of their respective judicial circuits as other State and County Officials are elected.
"The first election of Circuit Judges shall be held at the General Election in 1948 to take office on the first Tuesday after the first Monday in January, 1949, for a term of 6 years.
"The terms of all such offices as they shall severally exist at the time of adoption of this Amendment shall be and they *Page 279 are hereby extended to terminate on the first Tuesday after the first Monday in January, 1949."
On July 5, 1946, N. Vernon Hawthorne filed his information in quo warranto in this Court claiming the office of Circuit Judge and praying the ouster of Marshall C. Wiseheart. Mr. Hawthorne showed that he had requested the Attorney General to bring this proceeding and that the Attorney General had declined to do so and therefore, Mr. Hawthorne proceeded to file the information in his own name under the statute, Sec. 80.01 Fla. Statutes 1941 (same F.S.A.).
Rule to show cause was issued to the Respondent, Marshall C. Wiseheart, and to this he filed return to which the Relators filed demurrer and also prayed judgment of ouster, notwithstanding the return. The return shows the enactment of Chapter 22,153, supra, as heretofore stated, and Respondent contends that because that Act does not contain what is known as a saving clause and does contain the second paragraph, that if the second paragraph is void then the whole Act is void and the emoluments of the office of a Circuit Judge in Dade County were not increased while he was serving as a member of the Legislature and also alleged that he has not claimed, had or taken any of the increased emoluments provided by that Act.
The return further contends that, as the Act did not take effect until after he was appointed Judge, the provisions of Section 5, Article III, supra, are not applicable here. It further contends that even if he was ineligible for the appointment that the ineligibility expired with the expiration of the term of office for which he was elected a member of the Legislature, to-wit at the general Election in 1944. It also contends that the appointment of Hawthorne was null and void because no vacancy existed at the time of the appointment.
There is no question but that Worth W. Trammell was a duly appointed and qualified additional Judge for the Eleventh Judicial Circuit of Florida. When he resigned a vacancy occurred and that vacancy continued insofar as a de jure Judge was concerned until the vacancy was filled by a lawful appointment. It, therefore, follows that if Marshall C. Wiseheart *Page 280 was not eligible for the appointment and the Governor was not authorized to appoint him to the office at the time he was appointed, then the vacancy was not lawfully filled and continued to exist.
The fact as to whether or not a vacancy exists may be determined primarily by the Governor. Of course, his finding in this regard may be challenged in proper proceedings in courts of competent jurisdiction. State ex rel. Landis v. Byrd,120 Fla. 780, 163 So. 248; State ex rel. Wimberly v. Barham et al.,173 La. 488, 137 So. 862; Independent School District of Manning, Carroll County v. Miller, et al., 189 Iowa 123, 178 N.W. 323; State ex rel. Leal v. Jones, 19 Ind. 356, 81 Am. Dec. 403; Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; State ex rel. Roberts v. Murphy, 32 Fla. 138, 13 So. 705.
We see no escape from the conclusion that the second paragraph of Chapter 22153, supra, is in direct conflict with Section 43 of Article V of the Constitution and, therefore, that paragraph of the Act was of no force or effect. So the Act, without this paragraph, provided for an increase in the emoluments of the Circuit Judges of the Eleventh Judicial Circuit of Florida.
We come then to the question as to whether or not this paragraph may be stricken and the balance of the Act left standing as a valid and complete Act.
It has been generally held and is certainly the rule in this jurisdiction that if there are unconstitutional provisions of a statute and such unconstitutional provisions can be separated from the valid portions and the legislative purpose expressed, in so much of the Act as is good, can be accomplished independently of the void part, and considering the entire Act, the good and bad features are not so essentially and inseparably connected in substance or so inter-dependent that it cannot be said that the Legislature would not have passed the one without enacting the other, it is the duty of the Court to give effect to so much as is good. State v. Bryan, 50 Fla. 293, 39 So. 929; State v. Philips, 70 Fla. 340, 70 So. 367, Ann. Chas. 1918A, 138; State v. Dillon, 32 Fla. 545, 14 So. 383, 22 L.R.A. 124; Board of Commissioners v. Savage, 63 Fla. 337, 58 So. 835; Lainhart v. Catts, 73 Fla. 735, 75 So. 47; Harper v. *Page 281 Galloway, 58 Fla. 255, 51 So. 226, 26 L.R.A. (N.S.) 794, 19 Ann. Cas. 235; Di Lustro v. Penton, 106 Fla. 198, 142 So. 898; Phillips v. Bell, 84 Fla. 225, 94 So. 699. It can hardly be contended that the Legislature would not have passed the remainder of the Act without the inclusion of the second paragraph. To reach any other conclusion would be to say that the Legislature would have withheld the increase in emoluments which it conscientiously believed the Circuit Judges of the Eleventh Judicial Circuit were entitled to have unless a way could be found to make one of its members eligible for the appointment, regardless of the Act increasing the emoluments of the office.
We therefore hold that paragraph 2, Sec. 1, of Chapter 22153, supra, is void and of no effect. We further hold that the Act without the provision contained in this paragraph is good and valid.
The next contention presented is that because Mr. Wise-heart was appointed by the Governor before the legislative Act became effective, although after it was passed by the Legislature, Section 5 of Article III does not apply to the factual condition here presented. With this contention we cannot agree although we have been cited to some authority which supports this view, though we have not been cited any case directly in point, nor have we found one. In the present instance the Legislature, both the House and the Senate, had passed the Act which became Chapter 22,153, and had done all that was required of it to be done in this regard, before Mr. Wiseheart's appointment was confirmed by the Senate.
The Journal of the House shows that the Dade County delegation in the House, including Mr. Wiseheart, introduced the bill in the House on June 1st, 1943, and that on final passage on the same date Mr. Wiseheart moved the waiver of the rule and that the bill be read a third time and placed upon its passage. On this motion being adopted, Mr. Wiseheart voted for the bill.
So, we are led to the necessary conclusion that the Legislature of which Mr. Wiseheart was a member, had by its action increased the emoluments of the office of Circuit Judge of the Eleventh Judicial Circuit of Florida. *Page 282
"To hold otherwise would make a mockery of Section 5, Article III of our Constitution, which has for its purpose the preventing of unscrupulous legislators passing laws for their private benefit. If we should hold with the contention of the Respondent it would be to license a member of the Legislature to prepare and procure the passage of an Act greatly increasing the emoluments to be paid by the public to the future incumbent of an office then vacant and then, when all had been done which could be done by the Legislature in the passing of an Act, rush to the Governor's office and get him appointed to the vacancy then existing, then when his eligibility to be appointed to the office is challenged, let him be heard to say "The Constitutional inhibition does not apply to me because I got the appointment before the Act passed by the Legislature had become a public law." We do not mean to intimate that Mr. Wiseheart was prompted by such evil motives in exercising his activity in connection with the passage of the Act here under consideration. The record evidence is quite to the contrary and it is established that such was not his motive. That fact, however, does not make the appointment legal, nor lift it out of the positive inhibition of our constitution, supra. The Constitutional provision, Sec. 5, Article III, does not prohibit such an appointee assuming the duties of the office or drawing the increased emoluments, but it definitely prohibits the appointment. Therefore, the appointment could not be lawfully made, nor accepted.
This conclusion does not mean that the official acts of Mr. Wiseheart, while acting as Circuit Judge under his purported appointment and commission, have been void or that the validity of the same may now be brought into question. See 43 C.J. page 224, Sec. 470 and cases there cited; Sawyer v. State, 94 Fla. 60, 113 So. 736. In the Sawyer case, supra, we said:
"Furthermore, as bearing upon the contention that the court was without jurisdiction an account of the information having been signed, sworn to and filed by the assistant county solicitor rather than by the county solicitor himself, we are of the opinion that the principles underlying the doctrine of the validity of the acts of officers de facto have a pertinent application. *Page 283 We are mindful of the general rule that in order for one to be an officer de facto there must be an office de jure. In the case of State ex rel. v. Gleason, 12 Fla. 190, it was held by this Court that an officer de facto is one exercising the duties of an office under color of election or appointment, and his acts are as valid and binding upon the public or upon third persons, as those of an officer de jure. In the opinion in that case, quoting from a Wisconsin case, it was said on page 232, 'but when it appears that the person exercising the powers of an office is in by such a color of right, and that he has such possession of the office as makes him in law an officer defacto, then his acts as to third persons, are valid, and his right to hold the office can only be inquired into in some direct proceeding for that purpose.'"
We take it that the law is that a de facto officer, as long as he continues to act as such, may perform all the functions which may rightfully be performed by a de jure officer, although the appointment under which he acts may never attain such validity as to bar his ouster or as to fill the legal vacancy in the office of which he, defacto, performs the duties.
The rule appears to be well settled that a defacto incumbent of office exists when he exercises the duties of the office "(1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent, requirement or conditions, as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because the officer was not eligible or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; (4) under color of an election or an appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such." See 43 Am. Juris. Sec. 471 at page 225 and cases there cited. Also 43 Am. Juris. Sec. 481 at page 234; State v. Lewis 107 N.C. 967, 13 S.E. 247, 11 L.R.A. 105. *Page 284
The contention that although the respondent may have been ineligible for the appointment at the time he was appointed, he became eligible for appointment from and after the General Election in 1944 and, as nothing had been done to oust him from the office during the period in which he was ineligible, his appointment automatically became valid when he became eligible and, therefore, the (in law) vacancy ceased to exist and the Governor was without power to appoint another to fill the vacancy, we think, is untenable.
The Governor had power to appoint a successor to Judge Trammell but he was precluded by Section 5 of Article III from appointing Wiseheart at the time the appointment was made and Mr. Wiseheart was, by the same provision, precluded from being appointed. So, the vacancy, in legal effect, continued to exist. The legal principles involved here are the same as were before us in the case of Tillson v. State ex rel. Landis,127 Fla. 215, 172 So. 918, wherein we said:
"So it is that on authority of the opinions and judgments in the cases of City of Ocoee v. Beggs, et al., 102 Fla. 275,135 So. 557, and State ex rel. Attorney General v. Phillips,30 Fla. 579, 11 So. 922, we must hold that the allegations of the plea show that the respondent was not eligible to the office of City Commission at the time he was selected.
"The fact that prior to the institution of quo warranto proceedings the relator had registered on the registration roll of the City of Lake Helen at a time when the registration books were open in conformity with the charter provisions, cannot be held to cure his lack of eligibility at the time of his election. He claims title to the office by virtue of the election and not otherwise and if he was not eligible to election at the time the election was held he cannot lawfully hold the office under that election." . . . — and also
"There might be some merit in the respondent's contention if conditions had been such that he could have qualified and had qualified to hold the office after the election, but before entering upon the duties of the office. His plea shows, however, that he was not only disqualified at the time of the election, but was disqualified at the time he assumed performance of the duties of the office and, therefore, he was not lawfully *Page 285 entitled to hold the same and exercise the powers and duties thereof."
Here the respondent must rely on the validity of his appointment and confirmation at the time it was made. It is the appointment that is prohibited and the appointment that is without authority. An entirely different question would be presented if the Constitution had declared: "No Senator or member of the House of Representatives shall, during the time for which he was elected, hold or exercise the duties of any civil office under the Constitution of this State that has been created or the emoluments thereof have been increased during such time." Such provision would have applied to holding and exercising the duties of the office and the appointee would be prohibited in this regard only during the period of the term for which he had been elected as a member of the Legislature. Here, however, the appointment is prohibited and when so made can never become an effective basis for the holding of the office. See 22 R.C.L. 446 and cases there cited. Shelby v. Alcorn, supra; In re: Opinion of Attorney General, 17 Ops. Atty. Gen. (U.S.) 522.
Our opinion and judgment in Davis ex rel. Taylor v. Crawford,95 Fla. 438, 116 So. 41, is not at variance with the views herein expressed.
The contention that the Relator cannot challenge the validity of the second paragraph of Sec. 1 of Chapter 22,153, Acts of 1943, is without merit because the validity of Relator's claim to the office depends primarily upon the determination of this question. If that provision is valid, then there was no vacancy at the time Relator was appointed and there was then no power in the Governor to appoint Relator. If that provision was invalid then it caused the appointment of the Respondent to be without lawful authority and the vacancy continued to exist until it was closed by a lawful appointment and the appointment of Relator was the first lawful appointment made. We have held herein that because of the provision of the second paragraph of Section 1 of Chapter 22,153, supra, the appointment of the Respondent was contrary to Section 5 of Article III of our Constitution; that when the Respondent assumed the duties, powers and privileges of a Circuit Judge *Page 286 under the appointment he discharged the same as a de facto Circuit Judge and had continued to act as such; that the office of de jure Circuit Judge remained vacant until Relator was appointed. Under the Statute, 80.01 Fla. Statutes 1941 (same F.S.A.) Relator is authorized to maintain this action.
So the return should be held insufficient and the writ of ouster should be awarded.
THOMAS, and SEBRING, JJ., concur.
ORIGINAL JURISDICTION QUO WARRANTO PETITION FOR REHEARING