In Florida jurisprudence this case is unique. We have had several cases presented to this Court involving the question of the eligibility of members of the legislature to election or appointment of civil offices under Section 5 of Article III of the Constitution, but we have never before had a case involving the same factual situation as that presented in the instant case. Upon consideration of this petition for rehearing; I have to some extent changed my views on some of the points involved, but I have not changed my conclusion that the respondent's return to the writ of quo warranto is sufficient, and that the order entered on the original hearing should be adhered to.
Undoubtedly under that Section of the Constitution no Senator or member of the House of Representatives can, during the legislative term to which he was elected, be appointed or elected to any civil office that has been created, "or the *Page 287 emoluments of which shall have been increased," during suchtime.
This provision of the constitution must be given full force and effect. A like provision is contained in the Federal Constitution and in the constitutions of most of the States. Its wholesome purpose is obvious.
No decision by the Federal Supreme Court on this subject has been called to our attention, but it is a matter of history that in 1907 Congress had increased the salary of the Secretary of State, and that shortly thereafter it was announced that President-elect Taft intended to nominate Philander C. Knox, who was a Senator from Pennsylvania, to the office of Secretary of State. Congress immediately reduced the salary of that office to its former figure in order that the Senator would be eligible to the Secretaryship.
The only act of the 1943 legislature which attempted to increase the compensation of Circuit Judges residing in Dade County was Chapter 22,153, which if constitutional, granted an increase of $600.00 per year. This act did not become a law until June 15, 1943, and was repealed in 1945. There was another act passed at the same session and approved by the Governor on May 18, 1943, which raised the salaries of Circuit Judges throughout the State from $5,000.00 to $6,000.00 per year, but this act did not increase the compensation of Dade County Judges, because, under Chapter 17,772, Laws of 1937, which was then in effect, the legislature had provided that in counties having a population of 180,000 or more inhabitants the resident Circuit Judges should be entitled to receive from and be paid by each such county out of its general revenue a sum sufficient to make the salary of each Circuit Judge of such county or counties $7,500.00 per annum. Thus Chapter 21,760, Laws of 1943, did not affect the compensation of the Circuit Judges of Dade County.
So we are concerned here only with Chapter 22,153, Laws of 1943, which did grant an increase to Circuit Judges in counties having a population of 260,000 or more, such increase to be equal to 10 per cent of the annual compensation of $6,000.00 paid by the State ($600.00 per annum), to be paid by the county. This act provided that it should take effect *Page 288 upon becoming a law and it did not become a law until June 14, 1943, ten days after the session of the legislature had ended, and then it became a law without the Governor's approval. This act contained a provision to the effect that it should not operate to increase the salary or emolument of any Circuit Judge who should be appointed to office during the time for which he was elected as Senator or Member of the House of Representatives, and that each such Circuit Judge should receive during the term for which he should be appointed the salary and emoluments which, under the provisions of the law, appertained to such office at the beginning of the time for which he was elected to the legislature. It is contended that this latter provision rendered the entire act unconstitutional and void, as the act did not contain any severability clause; citing Advisory Opinion to Governor, 22 So. 2d 458, in which the Justices of this Court said that the constitutionality of this provision was extremely doubtful. But if the inclusion of this provision in the act rendered the entire act unconstitutional, then there was no increase in compensation and Wiseheart was clearly eligible. However, we need not decide that question here. Conceding that this was a valid act, it did not become a law, as above pointed out, until June 14, 1943.
We might call attention here to the fact that this Court has held, in the case of State ex rel. Simmons v. Lee, 119 Fla. 745, 160 So. 886, that the constitutional provision, (Article V, Section 43) stating that additional Circuit Judges shall receive the same salary as other Circuit Judges, does not prevent proper classification of counties by the legislature on a population basis for the purpose of prescribing the compensation of Circuit Judges.
As to the qualifications of a person for appointment as a Justice of the Supreme Court or a Judge of the Circuit Court, such person must be twenty-five years of age and an attorney at law. It is shown that Judge Wiseheart possessed these qualifications.
At the time Wiseheart was appointed by the Governor as Circuit Judge on June 3, 1943, there was a vacancy in such Judgeship caused by the resignation of Judge Worth W. *Page 289 Trammell. There was no reason why the Governor should not appoint Marshall C. Wiseheart as a Circuit Judge at that time unless Section 5 of Article III operated to prevent such appointment which appointment, by the way, was duly confirmed by the Senate on the same day and on June 4th Wiseheart resigned as a member of the legislature and received his commission in due form for such unexpired term.
Said section 5 of Article III of our Constitution as we have seen, uses the language "the emoluments whereof shall have beenincreased during such time." It clearly appears that from what has been said above that the emoluments of the office to which Wiseheart was appointed had not been increased at the time the appointment was made. The bill providing for such increase had passed both Houses of the legislature, but the legislative process had not ended on June 3, 1943, because the Governor, under the constitution, had ten days after the adjournment of the legislature in which to approve or to veto the bill, or to permit it to become a law without his approval. And so it is that on June 3, 1943, when Judge Wiseheart was appointed, and on June 4, 1943, when he was commissioned, he was eligible in every respect to hold the office of Circuit Judge. The emoluments of the office had not at that time been increased. It is true that Chapter 22,153 had been passed by both houses, but it had not become a law and at that time it might never have become a law.
And so, as I see it, when Judge Wiseheart was appointed on June 3, 1943 and confirmed by the Senate, and when his commission issued in due form and was accepted the following day, he became a de jure Judge, but when Chapter 22,153 (if it was a constitutional statute) went into effect on June 14, 1943, our view is that under Section 5 of Article III above quoted, Judge Wiseheart became ineligible and the Governor's appointment and commission became inoperative or ineffective until Wiseheart's ineligibility was removed by the termination of the legislative term to which he had been elected in 1942 and which ended in November 1944. During that period Judge Wiseheart was diligently performing his judicial functions, at least as a de facto Judge, and no one questioned the right of Judge Wiseheart to hold the office of *Page 290 Circuit Judge; and when that period of ineligibility ended in November 1944, the Governor's appointment of June 3, 1943, which was confirmed by the Senate on that day, and the Governor's commission of June 4, 1943, having never been set aside or revoked, again became legally operative and effective, and Wiseheart again became a de jure Judge. Therefore there was no vacancy in the office when Hon. N. Vernon Hawthorne was appointed and brought this action of quo warranto.
The case of Davis, Attorney General, ex rel. Taylor v. Crawford, 95 Fla. 438. 116 So. 41, is persuasive of the correctness of our position. See also 83 A.L.R. 831.
As Judge Wiseheart became a de jure Judge when appointed and commissioned, and continued as such until June 14, 1943, and as he became fully eligible to hold the office after the election in 1944, and as no one challenged his right during that intervening period of time, his title to the office was, in our opinion, perfectly good after the general election in 1944 when his legislative term expired, and was therefore good at the time Hon. N. Vernon Hawthorne was appointed.
It will have been observed that section 5 of Article III of the Constitution uses the future perfect tense when it says: "or the emoluments of which shall have been increased," etc., indicating an action done and completed before an appointment is made or an election is held. See State ex rel. Ryan v. Boyd,21 Wis. 210, construing a constitutional provision similar to our own.
An appointment made by the Chief Executive of the State to any civil office, when confirmed by the Senate, and acommission duly issued to the appointee, are documents which constitute the highest character of evidence of a complete title in the recipient to the office involved; and when any person is holding an office under such documents, the burden is upon the one who attacks his eligibility or authority to hold the office either to show that such appointment and commission was void when made, or has been rendered void by subsequent disqualification to hold the office in question, and which ineligibility still exists at the time the right of the incumbent is attacked by another and subsequent claimant. *Page 291 When an office is not actually vacant or is not in law deemed vacant, there is no vacancy that can be filled by executive appointment. See State ex rel. Landis v. Bird, 120 Fla. 780,163 So. 248. See also Simonton v. State 44 Fla. 289, 32 So. 821, and Advisory Opinion to the Governor 45 Fla. 154, 34 So. 571; Advisory Opinion to the Governor, 147 Fla. 157, (2nd) So. 378.
The question has been raised here as to whether or not, after a person has been appointed by the Governor to a civil office and his appointment confirmed by the Senate and his commission issued, his right to hold the office can be challenged by any one other than the Attorney General in his official capacity as such, but we deem it unnecessary to answer this question.
Under all the circumstances disclosed by the answer of the respondent, and in view of the law as I understand it, I think this Court was justified in overruling the demurrer to the respondent Wiseheart's return and in holding such return to be a good and sufficient answer to the relator's petition.
Our conclusion therefore is that the petition for rehearing should be denied.
CHAPMAN, C. J., concurs.