An information in the nature of quo warranto was filed in this Court. The information was presented in behalf of the State by the Attorney General against E. C. Collins who, it is alleged, is discharging the duties of the office of Judge of the Criminal Court of Record for Dade County without authority of law.
The facts are set out in the petition to which a demurrer was filed. The demurrer admitting the facts alleged which are well pleaded the question is upon the sufficiency of the petition. If it is found to be sufficient as a basis for issuing the writ the demurrer should be overruled, otherwise the demurrer should be sustained.
Briefly stated, the facts are as follows. A Criminal Court of Record for Dade County was established in that County prior to June 13, 1925. The Court takes notice that it was established June 15, 1907. See Chapter 5764 Laws 1907. Mr. Tom Norfleet was appointed by the Governor to be Judge of that Court and the appointment was confirmed by the Senate in 1925 at the regular session and a commission was issued to him on June 13, 1925. Norfleet entered upon the discharge of the duties of the office and was suspended by executive order of the Governor on March 26, 1929. The Governor's action in suspending Norfleet was submitted to the Senate at the session of the Legislature which convened in April, 1929, and the Senate in executive session on May 29, 1929, refused to assent to the Governor's action in suspending Norfleet. During that session of the Legislature the Governor did not submit the name of any person to be Judge of that Court to the Senate for confirmation.
On June 1, 1929, the Legislature was convened in extraordinary session and continued in session until June 20, *Page 379 1929, and it had not been in session at any time since up to the date when these proceedings were begun. That at no time during the extra session did the Governor submit to the Senate for confirmation or rejection the name of any person to be Judge of the Criminal Court of Record.
When Norfleet was suspended on March 26, 1929, the Governor appointed Uly O. Thompson to be Judge of the Court to hold from the 1st day of April, 1929, until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed. A commission was issued to Thompson and dated April 1, 1929.
On June 25, 1929, which was after the adjournment of both the regular and extraordinary sessions of the Legislature the Governor caused to be issued to Uly O. Thompson a commission to be Judge of the court from June 25, 1929, until the end of the next ensuing session of the Senate unless an appointment be sooner made and confirmed. Thompson abandoned the office afterwards and on January 15, 1930, the Governor caused a commission to be issued to E. C. Collins, respondent, to be Judge of the Court from January 15, 1930, until the end of the next ensuing session of the Senate.
It is contended that the commission to Collins is void, that he has no title to the office, and is usurping its duties and powers and privileges and that under the provisions of the Constitution Norfleet has been since the confirmation of his appointment by the Senate in 1925 the judge of said court, having a valid title to the office.
Article XVI Sec. 14 of the Constitution provides that: "All State, County and Municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified." See State ex rel. Attorney General v. Johnson, 35 Fla. 2, 16 South. Rep. *Page 380 786; Advisory Opinion to Governor, 65 Fla. 434, 62 South. Rep. 363, 50 L.R.A. (N. S.) 365.
An incumbent entitled to hold over until his successor is duly qualified is both a de jure and a de facto officer. See People ex rel. Williams v. Reid, 11 Colo, 138, 17 Pac. Rep. 302; Milford v. Powner, 126 Ind. 528, 26 N.E. Rep. 484; State v. Fabrick, 16 N.D. 94, 112 N.W. Rep. 74.
The refusal of the Senate to confirm the Governor's suspension of Norfleet which was made on March 26, 1929, left Norfleet with title to the office until the expiration of the term unless he was holding over under Sect. 14 Art. XVI Const. Art. V Sec. 24 Const.; Advisory Opinion to Governor, 93 Fla. 1024, 113 South. Rep. 115; Art. IV Sec. 15 Const.
As a judge of the Criminal Court of Record is not liable to impeachment but may be removed from office only by the act of the Governor by and with the consent of the Senate, Art. IV Sec. 15 Const., it follows that Norfleet continued as judge of the Criminal Court of Record and was required by the Constitution to resume the duties of his office when the Senate of 1929 refused to consent to his suspension, provided there was no appointment for the unexpired term in the meantime. Art. IV Sec. 15 Const.; Advisory Opinion to Governor, 69 Fla. 508, 68 South. Rep. 450; Advisory Opinion to Governor, 75 Fla. 674, 78 South. Rep. 673.
As the power of the Governor to suspend an officer exists only between the session of the Senate and while the Senate is in session the removal of the officer permanently may be accomplished only by the Governor recommending such removal to the Senate and its concurrence in such recommendation and as the Constitution requires no action by the Senate upon a simple suspension it follows that the *Page 381 office held by Norfleet did not become vacant until the expiration of the term for which he was holding or until his successor was duly appointed and qualified. Art. XVI Sec. 14 Const.
The two public acts necessary to vest title to the office is appointment by the Governor and confirmation by the Senate. When the Senate confirms the appointment the title to the office dates from the date of appointment. The information does not state when the appointment was made but in any event it could not have been for more than four years and must have occurred before confirmation by the Senate the regular session of which adjourned June 5, 1925, and the extraordinary session June 6, 1925.
The Criminal Court of Record for Dade County was established in 1907. The act went into effect June 15, 1907. The first incumbent of the office was Honorable William I. Metcalf, who was appointed on the 12th of September, 1907. The terms of office of the Judges of that court therefore expired every four years thereafter. A term therefore expired in 1923, again in 1927. In June, 1925, therefore, when the Honorable Tom Norfleet was given a commission the term ending in 1927 and only two years to run. His appointment, therefore, which must have been made in 1925 before the Legislature confirmed it could have been only for the unexpired term. See Art. IV. Sec. 7; Art. V. Sec. 33. It does not appear that the Governor submitted to the Senate of 1927 an appointment of any person to hold the office for the term beginning in September, 1927. Therefore Tom Norfleet continued in office until his successor was appointed and qualified. Art. XVI. Sec. 14.
The failure of the Senate therefore to sustain Norfleet's suspension in 1929 was of no significance as he was merely *Page 382 continuing in office under the provisions of the Constitution and his successor could have been appointed at any time after the 1927 term had expired. The appointment of Uly O. Thompson on April 1, 1929, was an appointment of a successor but for the unexpired term ending September, 1931. This appointment required a confirmation by the Senate because no person had been appointed by the Governor for the term beginning September, 1927. The fact that the appointment was delayed can have no effect upon the constitutional provision requiring appointment by the Governor to the office and confirmation by the Senate. Art. V. Sec. 24 Const.
The information does not inform us whether Mr. Thompson's appointment April 1, 1929, was confirmed by the Senate. It only informs us that Norfleet's suspension was not assented to by the Senate. 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 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.
Demurrer is sustained.