I think the petition for rehearing should be granted because the majority opinion appears to be based on a misconception of the prohibition contained in Section 5 of Article III of our Constitution. That section is not a prohibition against a Senator or Member of the House of Representatives being eligible during the time for which he was elected tohold any civil office that has been created or the emoluments whereof have been increased during such time. The prohibition is that he shall not be appointed or elected to such office during such time. The prohibition applies to the appointment and not to the eligibility of the appointee to hold the office. It applies with the same force and effect on the last day of the term for which he was elected as it does to the day after he takes the oath of office as a Senator or Member of the House of Representatives. *Page 292
The rationale of the majority opinion is that the appointment of Mr. Wiseheart was without authority of law when made and remained so until the date of the general election in 1944; that during that time it constituted no title to the office which could have been interposed against the claim of one holding a lawful and valid appointment to fill the same; that during that time Mr. Wiseheart was merely a de facto Circuit Judge which he became when he assumed the office and proceeded without challenge to perform the functions thereof and was recognized as a Circuit Judge by the public. Regardless of all this, the holding is that when Mr. Wiseheart's term of office as a member of the House of Representatives expired with the general election of 1944, the appointment, which had up until that time been a thing without life or validity, immediately gestated into a living, vital and active authority. We think this could not be the result.
It must be recognized as settled law that the acts of de facto officers are valid and binding on the public and third person the same as those of officers de jure. State v. Gleason,12 Fla. 190-192; Sawyer v. State, 94 Fla. 60, 113 So. 746; Dwyer v. State, 95 Fla. 846, 116 So. 726. Therefore, all the acts which Mr. Wiseheart has performed as a de jure Judge are just as valid as they would have been had he been a de jure Judge and they can never be brought into question on the ground that he was not a de jure Judge. Rushing et ux. v. Thompson's Executor, 20 Fla. 583.
So, the ouster of Mr. Wiseheart should result in no confusion.
The appointment having been contrary to the Constitution, it could never constitute a germ which in time could gestate and become and evolve as a living thing. One can acquire title to office only by lawful election or a lawful appointment. Sec. 27 Article III of Florida's Constitution. It cannot be acquired by prescription under the terms of our Constitution. It would be just as reasonable to say that Mr. Caldwell could have appointed a Circuit Judge in December, 1944, and that if such appointee took over the office and functioned therein as a de facto judge, (which such appointee could possibly have done, as no appointment or election is *Page 293 prerequisite to holding an office as a de facto official, — See 43 Am. Jur. page 225, Sec. 471 and authorities there cited. Also State ex rel. v. Murphy et al., 32 Fla. 138, 13 Soy. 705! State ex rel. v. Tippett et al., 105 Fla. 1117,134 So. 52; Sawyer v. State, 94 Fla. 60, 113 So. 736) the appointment, though being without authority of law when made, would have become good and valid and unassailable upon Mr. Caldwell's becoming Governor in January, 1945. One of these propositions is no more absurd than is the other, because Governor Holland had no more authority to appoint Mr. Wiseheart on June 3, 1943, than Mr. Caldwell would have had to appoint a Circuit Judge in December, 1944. In either event the appointment could have had no legal force or effect when made and it possessed no germ of authority which could ever give it vitality.
The case of Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169, involved the same basic question which is involved in this case arising under a like constitutional provision. There the court said:
"Upon the admitted facts, the prohibition applied as well to the board of police, who held the appointing power, as to the defendant in error. It did not simply render him ineligible to the office of levee commissioner. It operated also upon the Board and incapacitated it from making the appointment. It is of the very nature and essence of the fundamental laws of a State, that it avoids every act, performed in violation of its provisions. The act of appointment was, therefore, void. It was void, for want of capacity in the appointee to accept, and for want of power in the board of police."
The present writer has found no case involving the same question holding to the contrary.
An egg sterile when it is laid will never become a chicken (regardless of how long "Old Spec" may sit on it.)
So I am convinced that a void appointment cannot by the running of time gestate and become a muniment of title to office. See Tillson v. State, 127 Fla. 215, 172 So. 918.
The appointment of Mr. Wiseheart was void for all purposes at the time it was made because it was prohibited by the Constitution and, therefore, the vacancy in the office de jure continued from the effective date of Judge Trammell's resignation *Page 294 to the date of Mr. Hawthorne's appointment and qualification. It, therefore, follows that Mr. Wiseheart is a de facto officer while Mr. Hawthorne is a de jure officer and, as a result, holds superior title (in fact, the only title) to the office.
THOMAS, J., concurs.