In this case I concur in part in what has been said by Mr. Justice Ellis and also in what is said by Mr. Justice Whitfield in a special concurring opinion.
In the last paragraph of the opinion by Mr. Justice Ellis, he says:
"If Thompson's appointment was confirmed by the Senate his term of office extended only to September, 1931. If it was not concurred in his second appointment dated June 25, 1929, was only for the unexpired term which ends September, 1931. His abandonment *Page 375 of the office left it vacant so that the appointment of Collins was within the constitutional power and duty of the Governor. Collins under that appointment holds for the unexpired term ending September, 1931. A name may be sent to the Senate in view of the expiration of the term in September, 1931, of a person to be judge of the Court for the term beginning then."
It is my view that if Thompson's appointment was confirmed by the Senate his office extended only to September, 1931, as is stated by Mr. Justice Ellis, but if his appointment was not concurred in by the Senate then that appointment dated June 25, 1929, which was issued by the Governor without confirmation by the Senate could have only extended to the end of the next session of the Senate. It would be the duty of the Governor under his oath of office and under the requirements of the Constitution to submit to the Senate for its approval at its regular session in 1931 an appointment of one to hold the office for the remainder of the unexpired term ending in September, 1931. The Governor has the power to withhold nominations from the consideration of the Senate but if he does so in cases in which the Constitution requires the submission of nominations to the Senate he violates the provisions of the Constitution and fails to perform his official duty.
In the case of State, ex rel. vs. Murphy, in re County Commissioners of Duval County, 32 Fla. 138, 13 So. 705, this Court, speaking through Mr. Chief Justice Raney, said:
"The question of power alone can be considered by this court. For willful breach of official duty, or abuse of the power committed to him, the Governor is, like other civil officers, liable to impeachment and must answer to the tribunal erected under the Constitution for the *Page 376 trial of such cases. Even though the Governor should be guilty of a breach of duty in refusing to send any nomination at all to the Senate, during its session, it would be none the less within his power, and his duty after the adjournment, to fill the vacancy. In that case, the impeachable conduct would be his willful refusal to advise with the Senate, and not his act in filling the vacancy in the after recess."
In the concurring opinion by Mr. Justice Whitfield, it is said:
"The appointment and commission of Uly O. Thompson in June, 1929, without a confirmation by the Senate to hold 'until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed,' was in accordance with law," State ex rel. Roberts vs. Murphy, supra.
This language, it appears to me, in effect, holds that the Governor may disregard the Constitutional mandate and although a vacancy exist during the whole session of the legislature, may withhold from the Senate for approval the name of a proposed appointee to fill such vacancy and after the Senate shall have adjourned make an appointment to run until the end of the next ensuing session of the Senate and thereby act "in accordance with the law". I cannot concur in this conclusion. It is true that the Governor may exercise executive power and under such circumstances make an appointment which will effectually fill the vacancy during the period named, but it appears to me that it cannot be said that in exercising such power he does so in accordance with law, when the Constitution specifically requires that he shall do otherwise.
The information in the nature of Quo Warranto filed herein specifically alleges that although a vacancy in the office of Judge of the Criminal Court of Record of Dade *Page 377 County existed during a part of the regular session of the Senate of 1929 and during all of the extra-ordinary session of 1929, "the Governor of the State of Florida did not submit to the Senate of the State of Florida the name of Tom Norfleet, nor any other person, to be Judge of the Criminal Court of Record of Dade County, Florida, for a period of four years and until a successor was appointed and qualified", and further alleges, "The Senate of the State of Florida during the regular session of 1929 did not have the opportunity of concurring in nor approving the appointment of any person to the office of Judge of the Criminal Court of Record of Dade County, Florida, and did not approve the appointment of any person to be Judge of said court as contemplated by the Constitution and the laws of Florida, for the reason that his Excellency, Honorable Doyle E. Carlton, refrained from and did not nominate or appoint any person to be Judge of the Criminal Court of Record of Dade County, State of Florida, to succeed the incumbent in said office". The demurrer admits this allegation and, therefore, it appears to me to be required of this Court to say whether or not an appointment made under these conditions after the adjournment of the Senate "was in accordance with law". I think clearly, it was not. It appears, however, that the Relator, Norfleet, having lost all title to the office by the appointment of Thompson on the first day of April, 1929, after the expiration of the term to which Norfleet had been lawfully appointed in 1925, which term expired on the 12th day of September, 1927, although his commission was issued to run four years from the 13th day of June, 1925, shows by his petition no right or authority to hold over after June 13th 1929. Therefore, the demurrer to the information should be sustained. *Page 378