CONSTITUTION OF FLORIDA

government, and not to a merely transient, occasional or incidental employment. A person in the service of the government who derives his position from a duly and legally authorized election or appointment, whose duties are continuous in their nature and defined by rules prescribed by government, and not by contract, consisting of the exercise of important public powers, trusts or duties, as a part of the regular administration of the government, the place and the duties remaining, though the incumbent dies or is changed; every office in the constitutional meaning of the term implying authority to exercise some portion of the sovereign power, either in making, executing or administering the laws. A State officer is one who falls within this definition and whose field for the exercise of his jurisdiction, duties and powers is co-extensive with the limits of the State. State v Hocker, 39 Fla. 477, 22 So. 721.

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Chapter 4539, laws of 1897, entitled "an act to regulate admissions to the bar of this State, to create a board of legal examiners, etc.," held, to unconstitutional because it creates State officers in the board of legal examiners therein provided for and fails to provide for their election by the people or appointment by the Governor, as required by the Constitution, but makes them appointive by the Supreme Court contrary to the Constitution. Ib. The statute authorizing Circuit Judges to appoint a prosecuting aftorney from among the members of the bar, whenever the official State Attorney is absent from any regular or special term of court, does not conflict with the constitutional provision which requires that the legislature shall provide for the election by the people or appointment by the Governor of all State and county officers. King v State, 43 Fla. 211, 31 So. 254.

Chapter 5384, laws of 1905, requiring members of the State board of control to be residents of certain sections of the State, relate not to the classes of persons, but to place and length of residence, and do not, in effect, make the appointment to the office a legislative appointment, but such appointment is required to be made by the Governor, whose discretion is not limited except by the reasonable requisites as to place and length of residence of persons to be appointed. State v Bryan, 50 Fla. 293, 39 So. 929.

The provision of chapter 6216, acts of 1911, that the compensation of the probation officers shall be fixed by the county commissioners violates section 27 of article 3 of the Constitution and is inoperative. County Commissioners Hillsborough county v Savage, 63 Fla. 337, 58 So. 835.

Section 28. Every bill that may have passed the legislature shall, before becoming a law, be presented to the Governor; if he approves it he shall sign it, but if not he shall return it with his objections to the house in which it originated, which house shall cause such objections to be entered upon its journal, and proceed to reconsider it; if, after such reconsideration, it shall pass both houses by a two-thirds. vote of members present, which vote shall be entered on the journal of each house, it shall become a law. If any bill shall not be returned within five days after it shall have been presented to the Governor (Sunday excepted) the same shall be a law, in like manner as if he had signed it. If the legislature, by its final adjournment prevent such action, such bill shall be a law, unless the governor, within ten days after the adjournment, shall file such bill, with his objections thereto, in the office of the secretary of state, who shall lay the same before the legislature at its next session, and if the same shall receive two-thirds of the votes present it shall become a law.

Chapter 5403, acts of 1905, the fourth section of which provides that "this act shall take effect immediately upon its passage and approval." is not void because it was never expressly approved by the Governor. Under the provision of the Constitution a statute enacted by the legislature unless expressly vetoed by the Governor within the time limited by the Constitu

tion, becomes as valid a law, without the Governor's expressed approval, as though he had affirmatively approved it. A. C. L. R. R. Co. v Mallard, 53 Fla. 515, 43 So. 755.

An act as approved by the Governor must be taken as the legislative act in the absence of an affirmative showing by the journals that a materially different act was in fact passed by the legislature. State v Sammons, 62 Fla. 303, 57 So. 196.

Section 29. The House of Representatives shall have the sole power of impeachment; but a vote of two-thirds of all members present shall be required to impeach any officer; and all impeachments shall be tried by the Senate. When sitting for that purpose the Senators shall be upon oath or affirmation, and no person shall be convicted without the concurrence of two-thirds of the Senators present. The Senate may adjourn to a fixed day for the trial of any impeachment, and may sit for the purpose of such trial whether the House of Representatives be in session or not, but the time fixed for such trial shall not be more than six months from the time articles of impeachment shall be preferred by the House of Representatives. The chief justice shall preside at all trials by impeachment except in the trial of the chief justice, when the Governor shall preside. The Governor, administrative officers of the executive department, justices of the supreme court, and judges of the circuit court shall be liable to impeachment for any misdemeanor in office, but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit under the State; but the party convicted or acquitted shall nevertheless be liable to indictment, trial and punishment according to law.

The legislature of the State has no authority to hear and determine a case involving the right and title to the office of Lieutenant-Governor of Florida. This is a power distinct from the right of the Senate to try an officer for crime upon articles of impeachment preferred by the assembly. It is judicial in its character, and a matter wholly within judicial cognizance. State v Gleason, 12 Fla. 190.

To constitute an impeachment so as to be effective under the Constitution to suspend the officer, the articles of impeachment must be presented to the Senate, and a constitutional quorum of the Senate must receive them. Executive communication, 12 Fla. 653.

The Governor when impeached can not require an opinion of the Supreme Court upon such questions so long as such impeachment is pending. If, however, he makes such a demand, this court must examine the question to the extent of determining whether there has been an acquittal, because, in the event there has been, they must deliver the opinion. Executive communication, 14 Fla. 289.

Whether the action of the Senate in a case of impeachment is of such character as to entitle the defendant to a discharge, is a question which the Senate can alone determine with effect. The court does not administer the law of impeachments, and even if it should deem the officer entitled to a discharge, it could not order a discharge, and the officer is suspended until the Senate discharges him from the impeachment. Ib.

The Senate has the sole and exclusive jurisdiction to try all impeachments, and the Supreme Court can not wrest a case from its jurisdiction and administer what it deems to be the law of that jurisdiction. Ib.

When an officer has been impeached by the assembly, the adjournment of the Senate until the next regular session, and its failure to dispose of

or act upon a motion to discharge the prisoner, is not an acquittal by the Senate, although the term of office may expire with the meeting of the next regular session. Ib.

The Governor when impeached is deemed under arrest, and is disqualified from performing the duties of his office, and such duties devolve upon the Lieutenant-Governor until "acquittal by the Senate." Ib.

Under the Constitution long continued illness of a circuit judge rendering him unable to devote his personal attention to the duties of his office, does not create a vacancy in the office so as to authorize an executive appointment. Advisory opinion to Governor, 67 Fla. 423, 65 So. 224.

Under the Constitution of this Sttae the authority of an incumbent of an office is not affected by his physical or mental inability to perform the functions of the office. Ib.

Section 30. Laws making appropriations for the salaries of public officers and their current expenses of the State shall contain provisions on no other subject.

A law making appropriation for salaries of public officers and other current expenses of the State, can not, under the Constitution, contain provisions upon any other subject; and a clause in such an act, prescribing the manner in which public dues may be paid, is void. Executive communication, 14 Fla. 283.

Where an act which, according to its title and its general provisions, is an act to raise a revenue and regulates the assessment and collection of taxes, a provision therein directing the payment of the interest on the public debt, and current expenses of the State, is void. Executive communication, 14 Fla. 285.

The purpose of the constitutional provision that "laws making appropriations for the salaries of public officers and other current expenses of the State shall contain provisions upon no other subject" is to prevent including in bills appropriating money to carry on the government of the State, measures foreign to that purpose, and by taking advantage of the necessi ties of the State, force the legislature to adopt them. Amos v Mosley, 74 Fla. 555, 77 So. 619.

Where a law is not primarily one to appropriate money to pay "salaries of public officers and other current expenses of the State" it is not obnoxious to the Constitution because as an incident to its main purpose it provides for salaries and expenses necessary to carry into effect the purpose of the law. Ib.

The act creating the tax commission, which contains a section making appropriation for the payment of the salaries of the commissioners, is not in contravention of the constitutional provision which provides that "laws making appropriations for salaries of public officers and other current expenses of the State shall contain provisions on no other subject." Ib.

Section 31. The legislature shall elect United States. senators in the manner prescribed by the congress of the United States and by this Constitution.

(Note. This section superseded by Article 17 of the Constitution of the United States.)

Section 32. The repeal or amendment of any criminal. statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment.

When after a conviction for violation of a criminal statute, such statute is repealed and the repealing statute contains no saving clause preventing the operation of repeal as to causes then pending or continuing the statute then in force as to pending prosecutions, no further proceedings can be taken in the case to enforce the judgment. Higginbotham v State, 19 Fla. 557.

The provision of the Constitution that "the repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment," relates to the offense or procedure which the legislature may enact for the prosecution and punishment unless the change in the remedy should affect in some way the substantial rights of defense. Mathis v State, 31 Fla. 291, 12 So. 681.

The effect of this constitutional provision is to give to all criminal legislation a prospective effectiveness; that is to say, the repeal or amendment by subsequent legislation of a pre-existing criminal statute does not become effective, either as a repeal or as an amendment of such pre-existing statute insofar as offenses are concerned that have been already committed prior to the taking effect of such repealing or amending law. Raines v State, 42 Fla. 141, 28 So. 57.

A crime committed prior to the taking effect of a statute that amends or repeals the law violated by the commission of such crime stands for prosecution and punishment under the law that it violated at the time of its commission, notwithstanding the subsequent repeal or amendment of such law. Ib.

The amendment of a criminal statute does not deprive the State of the right to prosecute for offenses committed against the statute as it originally existed before amendment, though the indictment could not be found until thereafter. Sigsbee v State, 43 Fla. 524, 30 So. 816.

In civil actions of appeal character, depending upon a statute, where the penalty inures to the State, the repeal without a saving clause, of such statute pending an appeal will deprive the appellate court of any power to render a judgment by which the penalty may be enforced. P. & A. R. R. Co. v State, 45 Fla. 86, 33 So. 985.

Section 33. No statute shall be passed lessening the time within which a civil action may be commenced on any cause of action existing at the time of its passage.

Section 34. Immediately upon the impeachment of any officer by the House of Representatives, he shall be disqualified from performing any of the duties of his office until acquitted by the Senate, and the Governor in such case shall at once appoint an incumbent to fill such office pending the impeachment proceedings. In case of the impeachment of the Governor, the President of the Senate, or in case of the death, resignation or inability of the President of the Senate, the Speaker of the House of Representatives shall act as Governor, pending the impeachment proceedings against the Governor.

Art. 4

ARTICLE IV.

EXECUTIVE DEPARTMENT.

Section 1. The supreme executive power of the State shall be vested in a chief magistrate, who shall be styled the Governor of Florida.

Where there has been an election of a United States Senator by the legislature and afterwards the Governor, holding that there is a vacancy in the office on account of the illegality of such election, signs a commission of a United States Senator and requests the Secretary of State to seal the same with the great seal of the State, and to countersign it, it is the duty of the Secretary to do so, and he has no right to refuse because he deems the Governor's action illegal. If he refuses the performance of the duty it may be required by mandamus. State v Crawford, 28 Fla. 441, 10 So. 118.

Section 2. The Governor shall be elected by the qualified e'ectors of the State at the time and place of voting for members of the legislature, and shall hold his office for four years from the time of his installation, but shall not be eligible for re-election to said office the next succeeding term; Pro

vided, That the first election for Governor under this Constitution shall be had at the time and places of voting for members of the legislature and State officers, A. D. 1888, and the term of office of the Governor then elected shall begin on the first Tuesday after the first Monday in January after his election.

Section 3. No person shall be eligible to the office of Governor who is not a qualified elector, and who has not been ten years a citizen of the United States, and five years a citizen and resident of the State of Florida, next preceding the time of his election; Provided, That these limitations of time shall not apply to the president of the Senate or Speaker of the House of Representatives when, under this Constitution, the powers and duties of the Governor shall devolve upon them.

Section 4. The Governor shall be the commander-inchief of the military forces of the State, except when they shall be called into the service of the United States.

Section 5. The Governor shall transact all executive business with the officers of the government, civil and military, and may require information in writing from the administrative officers of the executive department upon any subject relating to the duties of their respective offices.

Section 6. The Governor shall take care that the laws be faithfully executed.

Section 7. When any office, from any cause, becomes 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.

The appointment of a person to fill a vacancy in the office of LieutenantGovernor entitles the person to hold the office until the same may be filled by an election as provided by law. State v Day, 14 Fla. 9.

Where the Governor fills the vacancy in an office requiring the confirmation or advice and consent of the Senate, the person so appointed holds the office until the end of the next ensuing session of the Senate, unless an ap pointment be sooner made and confirmed by the Senate. The executive can not make such an appointment for a shorter time. Advisory opinion to Governor, 14 Fla. 277.

When the term of an elective county office, to which a person has been elected for the entire term, has commenced, and there is a vacancy in the office on account of the failure of the person elected to give bond and qualify, the Governor may fill the vacancy by appointment. Such appointee will hold, not for the remainder of the term, but only until the qualification of a successor chosen at the next ensuing general election. Advisory opinion to Governor, 25 Fla. 426, 5 So. 613.

Where a vacancy in the office of prosecuting attorney for a criminal court of record occurs during a session of the legislature, by reason of the resignation of an incumbent regularly appointed for four years, the successor to fill such vacancy is properly appointed by the Governor and confirmed by the Senate for the unexpired term of the incumbent, and not for four years. Simonton v State, 44 Fla. 289, 31 So. 821.

Where a vacancy occurs in the office of circuit judge or judge of a criminal court of record during a recess of the Senate, the Governor properly