Chapter 6532, Acts of 1913, contains a provision that
"The Governor shall appoint one competent person, who shall fill the office of Shell Fish Commissioner of the State of Florida, and who shall not be financially interested in the oyster or clam industry, who shall hold the office for a period of four years and until his successor is appointed and qualified." Sec. 1790 (1232) C. G. L.
The law became effective June 4, 1913. The first appointment of a Shell Fish Commissioner under the act was made July 19, 1913, for four years from that date. On July 19, 1917, another appointment was made for four years. The incumbent resigned April 15, 1921, and the relator was appointed and commissioned on April 16, 1921, to hold the office until July 19, 1921, the remainder of the unexpired term. On July 19, 1921, the relator was appointed and commissioned for four years. "At the expiration of the four year term of said office beginning on July 19, 1921, and ending July 18, 1925, the Relator continued to act as such Shell Fish Commissioner and performed the duties thereof and received the emoluments therefor down to the fifth day of March, 1926, when the said Relator was again appointed and commissioned for four years from March 5, 1926."
On January 1, 1930, another person was appointed and commissioned to hold the office until July 19, 1933.
The relator brought mandamus proceedings in the Circuit Court against the State Comptroller to require the payment of the salary to relator for the months of January and February 1930. *Page 116
The Circuit Judge held that "when the Governor appointed a successor to the relator and such appointee qualified on January 1, 1930, relator's tenure of office terminated and thenceforth he no longer was entitled to receive further compensation as such officer," and dismissed the mandamus proceedings against the State Comptroller. Relator took writ of error.
The question presented is the legality of the appointment of a successor to the relator on January 1, 1930, the relator contending that his appointment and commission on March 5, 1926, for four years made the appointment of a successor on January 1, 1930, illegal.
Section 7, Article XVI, constitution, provides that "the legislature shall not create any office, the term of which shall be longer than four years." Unless otherwise duly provided where an office is created, the term begins when the office is first filled. In Re Advisory Opinion to the Governor,76 Fla. 649, 80 So. 519; In Re Advisory Opinion to the Governor, 78 Fla. 5, 82 So. 612. The provision of section 14, Article 16, that an officer shall continue in office after the expiration of his official term until a successor is qualified is intended to prevent a hiatus, State ex rel. v. Murphy and Re Comrs. Duval Co., 32 Fla. 138, 161, 13 So. 705; Advisory Opinion, 65 Fla. 434, 62 So. 363; 22 Rawle C. L. 550, and does not affect the cycle of the term fixed by law which ends at the expiration of the statutory term periodically whether the incumbent or another is the successor; otherwise the organic limitation as to terms may be violated by an officer holding over for a length of time after his term has expired and then being commissioned for a full term from the date of the commission and not from the end of the previous term as the constitution contemplates. See State v. Young, 68 So. 241 (La.) *Page 117
The rule announced in Advisory Opinion, 16 Fla. 841, was changed by section 33 of Article V of the constitution of 1885. See State ex inf. v. Williams, 222 Mo. 268, 121 S.W. 64, State ex rel. Withers v. Stonestreet, 99 Mo. 361, 12 S.W. 895.
The provision of section 14, Article XVI, constitution, that "all State, county and municipal officers shall continue in office after the expiration of their official terms until their successors are duly qualified," contemplates that while such an officer "shall continue in office, or perform the official duties of the office after the expiration of his official term, and until his successor is duly qualified, still the office is vacant as to the new term, in the sense that any office is vacant which is not occupied by a person chosen to fill it for such term." "Vacancy means that the office is without such an occupant as precludes the filling of it in any mode which the constitution may provide, or may recognize as lawful." State ex rel. v. Murphy and Re Comrs. Duval Co., 32 Fla. 138, 163, 13 So. 705. See also State ex rel. Wilkinson v. Hingle, 50 So. 616 (La).
Section 7 of Article IV, constitution, provides that "when any office, from any cause, shall become vacant, and no mode is provided by this constitution or by the laws of the State for filling such vacancy, the Governor shall have the power to fill such vacancy by granting a commission for the unexpired term."
When the four year term beginning in July, 1921, expired in July, 1925, a new term then began, and for the purpose of making an executive appointment for the new term there was a vacancy in the office in July, 1925, though the occupant, by virtue of section 14, Article XVI, constitution, continued in office until a successor was duly qualified. The executive appointment to fill the vacancy *Page 118 caused by the expiration of the term was not made until March 5, 1926, which was more than seven months after the new term began, and section 7, Article IV, constitution, authorized the governor "to fill such vacancy" caused by the expiration of the former term "by granting a commission for the unexpired term" which began in July, 1925, and ended in July, 1929. This is the necessary result of the operation of section 14 of Article XVI and section 7 of Article IV of the constitution upon the statute under which the relator was appointed to the office.
The relator's term of office under the law expired in July, 1929, and the office was vacant for the purpose of an executive appointment of a successor to the incumbent. The holding over of the incumbent under section 14, Article XVI, of the constitution into the succeeding term was subject to the executive power to "fill such vacancy by granting a commission for the unexpired term" ending July 19, 1933. The commission issued was legal and served to terminate the right of the relator to hold the office under section 14, Article XVI of the constitution. The fact that the commission issued to the relator on March 5, 1926, was for four years from that date does not control as against the law. Advisory Opinion, 14 Fla. 277; 31 Fla. 1, 12 So. 14, 18 L. R. A. 594.
Affirmed.
BROWN, J., AND HUTCHISON AND JOHNSON, Circuit Judges, concur.
BUFORD, C.J., AND ELLIS, J., dissent.
TERRELL AND DAVIS, J.J., disqualified.