R. A. GRAY, as Secretary of State of the State of Florida, and Ray E. Green, as Comptroller of the State of Florida, Appellants, v. Farris BRYANT, as Governor-elect of the State of Florida, and as a citizen, elector and taxpayer of the State of Florida, Appellee, 125 So. 2d 846

PER CURIAM. Honorable Farris Bryant, as Governor-elect and as a citizen, elector and taxpayer of this State, filed a complaint for declaratory decree against R. A. Gray, as Secretary of State, and Ray E. Green, as Comptroller, in which he sought a declaratory judgment on the following questions: 1. Which, if any, of the vacancies in the office of circuit judge created by virtue of the certification of the 1960 federal census and the operation of Section 6(2),

Article V, Florida Constitution, F.S.A., may be filled by executive appointment in advance of legislative action? 2. If any of such vacancies may be filled by appointment of the present Governor, may the present Governor issue commissions for those appointed to run beyond January 2, 1961 ? 3.

If the present Governor may not appoint or issue commission for terms to run beyond January 2, 1961, may the plaintiff, Governor-elect, after he succeeds to the office of Governor on January 3, 1961, appoint to fill such vacancies “until the general election of 1962 and until the successors of such appointees shall have been elected and qualified?” The complaint prayed that if the court determined that the present Governor had the power to appoint to any such vacancies for terms expiring on January 2, 1961 and that the Governor-elect would on January 3, 1961 have the power' to fill such offices by appointment, the court enjoin the Secretary of State from issuing to any such appointees of the present Governor commissions extending beyond January 2, 1961 and also enjoin the Comptroller from issuing any warrants to any appointees to such offices by the present Governor for any period of time subsequent to January 2, 1961.

The .defendants by answer alleged that the trial court was without jurisdiction of the parties and subject matter of the suit only for the reason that the suit in fact sought to bind the incumbent Governor, who is not and may not be made a party to the suit. The right or interest of the plaintiff to maintain a suit for declaratory decree in this instance was not challenged. In his decree, which is under attack on this appeal, the Chancellor decreed that: 1.

The official announcement of the results of the 1960 federal census caused the creation of additional offices of circuit judges only in those instances in which the legislature has provided for creation of such additional offices according to the population formula expressed in Section 6(2),

Article V, Fla.Const., F.S.A. 2. The incumbent Governor has the authority to fill such vacancies in the office of circuit judge but the commissions issued to those appointed shall expire at midnight of January 2, 1961. 3. The person who shall hold the office of Governor on and after January 3, 1961 shall have the authority to appoint persons to fill such vacancies until the first Tuesday after the first Monday in January 1963.

The Chancellor then enjoined the Secretary of State from issuing any commissions to persons appointed to fill such vacancies which would extend for any period of time past midnight January 2, 1961. He reserved jurisdiction as regards a restraining order against the Comptroller. Neither in the assignments of error filed herein nor in the oral argument before this Court have the defendants raised the question of the plaintiff’s right or interest to maintain this suit; therefore, this question is not presented to us for decision.

Consequently, this opinion cannot be taken as authority or precedent for the proposition that a governor-elect has any standing to contest or enjoin the actions of an incumbent governor as regards executive appointments to be made during the term of the incumbent. It is evident from the pleadings in this cause that the issues involved have political overtones and that they have arisen because of the ending of the term of one chief executive and the commencement of another’s at a time when a large number of newly created judicial offices must be filled by appointment of a chief executive.

It is our opinion that it is unimportant that there will soon occur a change in the person who holds the office of Governor and that the issues should be determined without regard to this fact. Our decision should and would be the same if the incumbent Governor’s term were to extend past January 2, 1961 or if the Governor-elect were now the incumbent.

The first issue to be decided relates to the Chancellor’s decision that the official announcement of the 1960 federal census created vacancies in the office of circuit judge only in those circuits where the legislature had acted to provide for the creation of additional offices upon the showing, by census authorized by law, of requisite population authorizing creation of such additional offices. Section 6(2),

Article V, Florida Constitution prescribes the formula by which the number of circuit judges in each of the sixteen judicial circuits is to be determined. It reads: “The legislature shall provide for one circuit judge in each circuit for each fifty thousand inhabitants or major fraction thereof according to the last census authorized by law. In circuits having' more' than one judge the legislature may designate the place of residence of any such additional judge or judges.” The Chancellor’s decree indicates that he construed this

section of the constitution not to be self-executing, but on the contrary construed it as requiring that the legislature act to create the offices of circuit judge which a census would authorize. However, as to the First, Second, Fourth, Sixth, Seventh, Ninth, Tenth, Eleventh, Twelfth, Fourteenth and Fifteenth Judicial Circuits it is immaterial to this case, and to the 'determination of whether or not the 1960 federal census figures created any vacancies in the office of circuit judge in any of those circuits, whether Section 6(2),

Article V be construed to be self-executing or not. This is true because the legislature, by the various sections of ch. 26, F.S.A. and by ch. 59-1005, Laws of Florida, Acts of 1959, has already acted to prescribe that there shall be one circuit judge for each 50,000 inhabitants, or major fraction thereof, in each of those circuits, according to the last census authorized by law. We have noted that

Section 26.02(1), F.S.A., which pertains to the First Judicial Circuit, contains two sentences which may be contradictory. The first sentence names the four counties in the circuit and prescribes that there shall be one circuit judge for each 50,000 inhabitants or major fraction thereof. The second sentence reads: “No two of said judges may be legal residents of the same county.” Read literally this

section in effect limits the number of circuit judges in the First Judicial Circuit to four. Section 6(2),

Article V authorizes the legislature to designate the place of residence of any circuit judge in any circuit having more than one such judge, but it does not authorize the legislature to limit the number of judges below the number resulting from the population formula expressed therein as applied to the last census authorized by law. We judicially know that the First Judicial Circuit, prior to the certification of the 1960 federal census, was authorized to have, and had, four circuit judges.

Therefore the provision of the statute limiting each county to one such judge was not a more restrictive limitation on the number of such judges than the constitutional provision. It seems clear that the statutory provision was intended to be an exercise of the power granted the legislature to designate the place of residence of the four judges of the circuit and was not intended to limit the number of judges therein. This is clear because the first sentence of said

Section 26.02(1) fixes the number of judges in accordance with the population formula prescribed in the constitutional provision. If construed literally, the second sentence of

Section 26.02(1) is in conflict with the first sentence thereof and with Section 6 (2),

Article V and is therefore unconstitutional and void. If construed to mean that there will be one circuit judge resident in each county of the circuit before more than one is resident in any county, the sentence can be held to be valid and gives effect to what we find to be the legislative intent. We so construe its meaning.

In sum the foregoing results in our concluding that the decree of the Chancellor is correct in holding that in those circuits above mentioned as to which the legislature has prescribed that there shall be one such judge for each 50,000 persons, or major fraction thereof, the certification of the 1960 federal census figures did automatically create vacancies in the office of circuit judge in each circuit in which the number of circuit judges now holding office is less than one such judge for each 50,000 persons or major fraction thereof according to the figures shown by said census.

We disagree, however, with the Chancellor in his decision that Section 6(2),

Article V, is not self-executing and that the legislature would be required to act before any vacancies in the office of circuit judge would exist in the Third, Fifth, Eighth, Thirteenth, and Sixteenth Circuits even though the 1960 federal census reveals that those circuits have populations which would authorize additional judges. A study of the history of the constitutional provisions relating to the number of circuit judges for each circuit and the method prescribed for determining the number indicates that the subject has been one of much concern to the people of this state. Prior to the revision of

Article V, as adopted in 1956 and which resulted in the appearance of Section 6(2) therein for the first time, the constitution provided that “there shall be one Circuit Judge to each Judicial Circuit”, § 45, and gave the legislature the power to add additional circuit judges with the limitation that the total number of such judges in each circuit shall not exceed one for each 50,000 inhabitants, or major fraction thereof.

Thus, as it existed prior to the 1956 amendment, the constitution laid down both a minimum and a maximum number of circuit judges in each circuit, with the legislature having dis^ cretion as to the number which would be provided within the limits so established. The present Section 6(2),

Article V is a marked departure from the prior provisions of the constitution. This

section does not establish either a minimum or maximum, but rather establishes an inflexible rule which, when applied to the figures revealed by censuses taken from time to time, determines the number of such judges. The

section gives the legislature no discretion in determining the number of such judges, or offices. The basic guide, or test, in determining whether a constitutional provision should be construed to be self-executing, or not self-executing, is whether or not the provision lays down a sufficient rule by means of which the right or purpose which it gives or is intended to accomplish may be determined, enjoyed, or protected without the aid of legislative enactment. State ex rel. City of Fulton v. Smith, 1946, 355 Mo. 27, 194 S.W.2d 302.

If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing. City of Shawnee v. Williamson, Okl.1959, 338 P.2d 355. The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing. People v. Carroll, 1958, 3 N.Y.2d 686, 171 N.Y.S.2d 812, 148 N.E.2d 875. Unquestionably Section 6(2),

Article V lays down a sufficient rule by which the number of circuit judges which the people have dictated shall be furnished to them may be readily determined without enabling action of the legislature. The only factor, or facts, necessary to be supplied from an extraneous source is the population of the circuits. The Chancellor correctly held, over the contrary contention of plaintiff, that no legislative action is necessary to confirm or accept the figures furnished in the 1960 federal census, but that they became effective for this purpose upon their official announcement.

It seems clear to us that the subject provision meets the test and should be construed to be self-executing and as not requiring legislative action to activate the ef - feet of its provisions as to number of judges. There are other reasons why we feel that the

section must be so construed. The will of the people is paramount in determining whether a constitutional provision is self-executing and the modern doctrine favors the presumption that con-titutional provisions are intended to be self-operating: This is so because in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people. State ex rel. Noe v. Knop, La.App.1939, 190 So. 135; Brice v. McDow, 1921, 116 S.C. 324, 108 S.E. 84.

See also Vol. 1, Cooley, Constitutional Limitations, (8th ed. 1927) pp. 165-172, and 11 Am.Jur., Constitutional Law, Sections 71-76, and cases therein cited. A comparison of the present Section 6 (2), Florida Constitution, with the pertinent provisions of

Article V, as they existed prior to the adoption of Section 6(2), indicates without doubt that the people intended to depart from a system under which the legislature had the discretion, within minimum and maximum limits, to determine the number of circuit judges in each circuit in favor of a system in which the people would have one office of circuit judge, and one such judge, for each segment of population prescribed therein, as the number be determined from time to time by censuses authorized by law.

The fundamental object to be sought in construing a constitutional provision is to ascertain the intent of the framers and the provision must be construed or interpreted in such manner as to fulfil the intent of the people, never to defeat it. Such a provision must never be construed in such manner as to make it possible for the will of the people to be frustrated or denied. If Section 6(2),

Article V, be construed not to be self-executing, but rather as requiring legislative action to create offices of circuit judge authorized by the last census according to law, the effect would be to give the legislature the discretion to create, or not to create, additional offices of circuit judge although the people of this state in that

section in the imperative and mandatory sense dictated that they should be created upon showing of the existence of the requisite population. In fact, under such construction the legislature could refuse to provide any circuit judges for a circuit, since there is no minimum number required as there was in the constitution prior to 1956. Further, under such construction the legislature could at its will reduce, or increase within the maximum limitation provided, the number of such judges.

Any such action, or refusal to act, on the part of the legislature would certainly frustrate or nullify the expressed will of the people of this state. We have no reason to believe, and we do not intend to imply, that the legislature will not always follow the dictates of Section 6(2). Nevertheless, a construction that would hold the

section not to be self-executing would make it possible for the legislature to fail to act in accordance with the rule prescribed therein and thereby to frustrate the people’s will. Where there is a choice as here such a constitutional provision must always be construed to be sélf-executing for such construction avoids the occasion by which the people’s will may be frustrated.

We point out also that in the instance of this constitutional provision the rule prescribed therein for determining the number of judges is so certain and inflexible as to leave nothing to be done by the legislature except to adopt legislation which accords with the words of the section. The'legislature must follow the rule prescribed in the section. It can do nothing more and nothing less, otherwise its action would be unconstitutional and void. We therefore hold that Section 6 (2),

Article V, is self-executing and that upon certification of the 1960 federal census vacancies would exist in the office of circuit judge not only in the circuits for which the legislature has provided enabling legislation, but also in those circuits in which the legislature has not provided such legislation, if the 1960 federal census figures indicate the presence of such vacancies. We come then to the principal question involved in this appeal. The plaintiff-appellee, Hon. Farris Bryant, contends that the terms of all circuit judges expire at midnight January 2, 1961; that

Section 14,

Article V, requires that appointments to fill vacancies in the office of circuit judge shall only be for the unexpired term of such judges; and therefore that any appointments made and commissions issued in filling any such vacancies in the office of circuit judge shall not extend beyond, but shall expire at midnight January 2, 1961. The defendants, appellants, contend that under the provisions of Sections 6 and 7,

Article XVIII, Florida Constitution, and Sections 114.01 and 114.04, Florida Statutes, F.S.A., any such appointments and commissions issued pursuant thereto should extend to the first Tuesday after the first Monday in January 1963, i. e. to the first Tuesday after the first Monday in January next after the election and qualification of a successor. As above stated the Chancellor decreed that the appointments, and the commissions issued to the appointees, to fill any of the vacancies involved herein could extend only to midnight of January 2, 1961.

Implicit in his decree is the decision that those appointed by the incumbent Governor would not hold over and continue in office until election and qualification of their successors, for he held that the person who holds the office of Governor of this State on and .after January 3, 1961 would have authority to fill such offices again by appointment on •or after January 3, 1961. It follows that the Chancellor also decided that upon the expiration of the “unexpired term” to which each of the new judges would be appointed by the incumbent Governor such offices would again fall vacant on January 3, 1961.

We think the Chancellor erred in holding that the terms and commissions of those appointed to fill .the newly created offices of circuit judge may not extend beyond January 2, 1961. Further, assuming that the Chancellor had been correct in holding that such terms and commissions could not extend beyond January 2, 1961, the Chancellor erred in holding that the mere expiration of each of such terms would ipso facto create a vacancy which could be filled by appointment by the person holding the office of Governor on and after January 3, 1961.

Our research reveals that the specific question now before us has never been presented to this Court under existing constitutional and statutory provisions. There are three sections of our constitution which make reference to the filling of offices by appointment. There is also one

chapter of our state statutes which deals with this subject. We must consider each separately and all of them together in order to determine the correct answer to the question before us.

Section 7,

Article IV, Florida Constitution, is the first

section of our constitution dealing with the subject. It reads: “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.” The Chancellor was of the opinion that this

section provides the authority in the Governor to fill the subject vacancies and that it also has the effect of limiting the commissions issued “to the present term of the offices to be filled.” In an Opinion Rendered to his Excellency the Governor, 1889, 25 Fla. 426, 5 So. 613, this Court held that

Section 7,

Article IV, was not applicable to the filling of vacancies in elective county offices, because

Section 6,

Article XVIII, Florida Constitution, as it then existed, provided a “mode” of filling such vacancies. In that opinion this Court, referring to

Section 7, of the executive

article at page 615 of 5 So., said: “Under this

section no appointment is to be made to fill a vacancy except when neither the constitution nor the laws provide a mode for filling it, and of course, where the appointment is not made under it, its provisions as to the duration of the appointment do not apply * * The wording of the

section makes it clear that it is a catchall provision which applies only when “no mode” for filling vacancies is provided elsewhere in the constitution and laws of the state. See In re Opinion of the Justices, 1935, 120 Fla. 729, 163 So. 76; State ex rel. Landis v. Bird, 1935, 120 Fla. 780, 163 So. 248, 253, and Advisory Opinion to the Governor, 1944, 154 Fla. 822, 19 So.2d 198. In other cases we have held that

Section 7,

Article IV, applies only as modified by the provisions of ch. 114, F.S.A., State ex rel. Robert v. Murphy, 1893, 32 Fla. 138, 13 So. 705; In re Advisory Opinion to the Governor, 1927, 93 Fla. 1024, 113 So. 115; Simonton v. State ex rel. Turman, 1902, 44 Fla. 289, 31 So. 821, 830; In re Advisory Opinion to the Governor, 1903, 45 Fla. 154, 34 So. 571; In re Advisory Opinion to the Governor, 1912, 64 Fla. 16, 59 So. 782, and State ex rel. Wynn v. Squarcia, Fla.1953, 66 So.2d 263. Further as pointed out in State ex rel. Landis v. Bird, 1935, 120 Fla. 780, 163 So.2d 248, at page 263: “* * *

Section 7 of

article 4 of the Constitution contemplates that statutes shall prescribe causes of vacancies in office and provide for filling such vacancies * * This statement is further proof that

Section 7,

Article IV was intended to operate as a catchall and where there were other pertinent provisions in the constitution and statutes it was not to be operative. We therefore come to the conclusion that since the constitution and statutes do elsewhere provide a mode for filling the subject vacancies, the provisions of

Section 7,

Article IV, are not applicable. This Court in its Advisory, Fla.1957, 96 So.2d 541, reached the same conclusion for no-reference whatsoever is made therein to-Section 7,

Article IV.

Section 6,

Article XVIII, is the next

section of our constitution relating to vacancies. It reads: “The term of office for all appointees to fill vacancies in any of the elective offices, under this Constitution shall extend only to the first Tuesday after the first Monday in January next after the election and qualification of a successor.” It is followed immediately by

Section 7,.

Article XVIII, which provides that: “In all cases of election to fill vacancies in office such election shall be for that part of the unexpired term commencing on the first Tuesday after the first Monday in January next after such election.”

Section 9,

Article XVIII then provides-that a general election shall be held in-November of each even numbered year“for all elective State and county officers,, whose terms of office are about to expire,, or for any elective office that shall have-become vacant.” Each of these sections is concerned with-elective offices such as those with which we-are now dealing. These sections of the constitution erect a procedure, a method or mode, for filling-vacancies in elective offices that is complete and logical.

Their obvious purpose-is to provide a method for filling vacancies-only until the people themselves can act to do so in an election and at the same time preserve orderly cycles of terms of office. It is pertinent to note that

Section 6,

Article XVIII makes no reference to-any part of the unexpired term of the office which is vacant. The term of office-of the appointee is not limited by the expiration of the term of the office, or term-of the officer, which is to be filled, but -rather by the time at which the elected suc■cessor will take office. The intent of

Section 6,

Article XVIII is clear and unmistakable. It is simply that a vacancy in such an office is to be filled by appointment for a special or ad interim term, which term is unrelated *to, not controlled by, and is not a part of the regular term of the office, but which is limited by and terminates upon the people •electing a qualified successor. That the appointee receives a special, or ad interim, term of office is made clear by the language of the

section which begins “The term of office for all appointees íjí i\l )) We have n'o doubt that the wording of the

section was deliberate and by design to accomplish an avoidance of a situation where, as here, a regular term of office would expire between an appointment to fill a vacancy therein and the next general election. In such a situation under the theory of the Chancellor and the plaintiff-appellee an appointee would be succeeded by an appointee, whereas the obvious intent of the drafters is that, barring abandonment or vacation of the office by the appointee, the appointee would continue to serve until replaced by one chosen by the people in an election.

It follows that ’once the executive power -'is exercised to fill a vacancy in an elective •office, the power is spent and may not be again exercised with respect to that office, unless it again falls vacant from one of the •causes provided by law before the people 'have the opportunity to elect a successor •and he have the opportunity to begin his •term the January after his election. If there be any doubt that such was the -intent of the people in adopting

Section 6,

Article XVIII, that doubt was dispelled -completely and clearly by the legislature •through the adoption of ch. 114, F.S.A. ■• This

chapter of the statutes does two -.things pertinent here. First, in

Section 114.01 it prescribes the cases in which offices shall be deemed vacant. Second, in

Section 114.04 it prescribes the mode, of filling all offices which shall have fallen vacant. The pertinent sections of this chapter, Sections 114.01 and 114.04, were adopted in 1868 (ch. 1633) and have continued unchanged since their adoption. They were no doubt adopted in satisfaction of the contemplation of

Section 7,

Article IV, that the legislature would “prescribe causes of vacancies in office and provide for filling such vacancies.” State ex rel. Landis v. Bird, 163 So. at page 263, supra.

Section 114.01 reads in part: “Every office shall be deemed vacant in the following cases: * h= * * * * “

(6) When any office created or continued by the constitution or laws shall not have been filled by election or appointment under the constitution or law creating or continuing such office. * * The newly created offices of circuit judge fall within the provisions of

Section 114.-01(6) above quoted. They are offices created under the constitution. They have not been filled either by election or appointment. They are therefore subject to being filled under the authority of

Section 114.04 which reads: “In all such cases, and in all other cases in which a vacancy may occur, if the office be a state, district or county office (other than a member or officer of the legislature), the governor shall fill such office by appointment, and the person so appointed shall be entitled to take and hold such office until the same shall be filled by an election as provided by law, and .in cases requiring the confirmation or the advice and consent of the senate, the per-som so appointed may hold until the end of the next ensuing session of the senate unless an appointment be sooner made and confirmed and consented to by the senate.” (Emphasis added.) The provisions of this

section of the statutes are clearly applicable to this case; the

section amplifies and is in accord with

Section 6,

Article XVIII. In his decree the Chancellor made no mention of ch. 114, F.S.A. He was of the opinion that

Section 14,

Article V, was controlling in this case in that it prevented any appointment extending beyond the expiration of the terms of all circuit judges which all expire in January 2,

Section 14,

Article V, is the last of the constitutional provisions relating to filling of vacancies. It reads: “When the office of any judge shall become vacant from any cause, the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the judge whose death, resignation, retirement, or other cause created such vacancy.” The wording of this

section in itself indicates to us that it was not intended to apply to vacancies in newly created offices, such as involved herein, but only to those offices which had been filled once and become vacant because of the “death, resignation, retirement, or other cause” which resulted in the vacation of the office by the previous holder thereof. Every reference in the statute is personal to a particular judge and to the term of office of a judge. But we prefer not to decide the effect of this

section o'f the constitution on such a narrow basis.

Section 14,

Article V of our present constitution is a re-enactment of

Section 33,

Article V, of the Constitution of 1885. In re-enacting this provision not one word therein was changed.

As stated in Vol. 1, Cooley, Constitutional Limitations (8th ed. 1927) page 136: “ * * * if the new instrument reenacts in the same words provisions which it supersedes, it is a reasonable presumption that the purpose was not to change the law in those particulars, but to continue it in uninterrupted operation. * * * ” Further, when an identical provision of a previous constitution is readopted in a subsequent document, it is presumed that such provision was adopted with the construction previously placed upon it. 16 C.J.S. Constitutional Law § 35; State ex rel. West v.

Butler, 1915, 70 Fla. 102, 69 So. 771, and Advisory, 1957, 96 So.2d 541. There is another rule relating to constitutional construction which deserves observance. It is well stated in State v. Florida State Improvement Commission, Fla.1952, 60 So.2d 747, at page 750, to-wit: “ * * * If, however, any

interpretation or construction is necessary in order to determine the purpose of the Legislature in proposing this amendment and of the people in adopting the same, it is a cardinal principle of constitutional law that we may resort to the history of the times in order to determine the evil sought to be remedied and the purpose to be accomplished.” Turning first to application of the last mentioned rule we find that “the evil sought to be remedied and the purpose to be accomplished” by the adoption of

Section 33,

Article V, Constitution 1885, readopted as present

Section 14,

Article V, has been recorded in the decisions of this Court on numerous occasions. Beginning with the case of State ex rel. Robert v. Murphy, 1893, 32 Fla. 138, 13 So. 705, 716; then in State ex rel. Hodges v. Amos, 1931, 101 Fla. 114, 133 So. 623, 625; again in State ex rel. Landis v. Bird, 1935, 120 Fla. 780, 163 So. 248, 262; and recently in our Advisory, 1957, 96 So.2d 541, we stated that this provision was adopted .to change the rule announced in In re Tenure of Office of Circuit Judges, 1877, 16 Fla. 841.

The rule announced in said opinion was that a judge of a circuit court, appointed by the governor and confirmed by the senate, held his office for a full eight years, and that no part of a previous eight years during which another had held the office (but had vacated it) entered into the computation of time for which the second appointee held. The rule announced in 16 Fla. 841 was the evil to be remedied.

The purpose sought to be accomplished by adoption of the subject constitutional provision was simply to provide a limitation “upon the power to fill the office for a new or full term upon the happening of a vacancy, which power would exist in the absence of such provisions, or of other provisions creating technical terms of office.” Simonton v. State ex rel. Turman, 1902, 44 Fla. 289, 31 So. 821, 828. This

section was not designed to operate as a limitation on ad interim appointments to fill vacancies in judicial offices. The following is proof of this fact.

Section 6,

Article XVIII, as adopted in the Constitution of 1885 prevented such ad interim appointments in elective offices from extending past the election and qualification of a successor “at the ensuing general election.”

Section 7,

Article 5, Constitution of 1868, the forerunner of the present

Section 7,

Article IV, prevented such appointments from extending past the “next election”. This

section was in effect at the time of the opinion In re Tenure of Office of Circuit Judges, supra, and had then been construed by this Court in State ex rel. Weeks v. Gamble, 13 Fla. 9 to apply to elective offices and to grant the power only to fill a special vacancy embraced in the period between the time the office becomes vacant and the filling of the office by election.

Thus it is clear that the filling of vacancies by ad interim appointments was not the evil to be remedied, rather the people were concerned only with preventing new or full terms being conferred at the time a successor was elected, or appointed and confirmed, at the termination of the ad interim term. The use of the word “appointed” in the phrase “the successor to fill such vacancy shall be appointed or elected only for the unexpired term” might suggest that the

section was intended to apply as a limitation on the length of the ad interim terms granted to fill vacancies. This suggestion is nullified by what has been said above as to the evil to be remedied and the purpose to be accomplished by adoption of

Section 14,

Article V, and its predecessor. Further, at the time of the adoption of the

section some judicial offices were filled by election, others, notably circuit judge-ships, were filled by appointment of the governor with confirmátion by the senate. The word “appointed” was necessary, therefore, to limit the regular term of one appointed by the governor and confirmed by the senate to the unexpired term of the predecessor judge. In view of the fact that

Section 7,

Article XVIII, as adopted at the same time that the provision now found in

Section 14,

Article V, was adopted limited the term of one elected to fill a vacancy in office to the unexpired term of the office makes it clear that the principal purpose of

Section .14,

Article V, was directed to preventing new or full terms being given to appointive judicial officers. The reason for the use of the word “appointed” in the

section is still as necessary as it was in 1885. Although circuit judges are now elected, some judicial offices are still filled by appointment by the governor with confirmation by the senate. See ch. 33, F.S.A.; ch. 8521, Acts of 1921; ch. 11357, Acts of 1925, Extraordinary Session; and ch. 57-1033, General Laws 1957. Further there is no constitutional provision which requires election of the judges of the statutory courts which the legislature is authorized to create. Under

Section 27,

Article III, Florida Constitution, the legislature may require that they be appointed or elected. The original purpose sought to be served by the provision in

Section 14,

Article V, is therefore still a valid purpose necessary to be served. There is nothing in the constitution or laws of Florida today which indicates that the mere re-enactment in 1956 of the words of

Section 14,

Article V, was intended to give them a different meaning or that they were designed to accomplish a different purpose than when first adopted. The presumption is that its re-enactment was not intended to change its force or meaning. As we said in Advisory, 1956, 96 So.2d 541, 545, this

section has always been construed as merely providing a limitation “upon the power to fill the office for a new or full term upon the happening of a vacancy”. It has never been construed to limit the “ad interim appointment for the term prescribed by

Section 6 of Art. XVIII.” In the last mentioned Advisory we were concerned with the effect on

Section 6,

Article XVIII of the re-enactment of

Section 14,

Article V, and of Section 26(1),

Article V. We there concluded as we do now that these sections did not modify

Section 6,

Article XVIII “insofar as appointments to fill vacancies in judgeships are concerned.” 96 So.2d at page 546, infra. Where a constitutional provision will bear two constructions, one consistent and the other inconsistent with an intention clearly expressed in another provision, that construction which is consistent should be adopted so that both sections may stand and have effect. A construction that nullifies a specific clause will not be given to a constitution unless absolutely required by the context. Advisory, 1957, 96 So.2d 541 and cases therein cited. In this instance if we construe- Section) 14,

Article V as limiting the ad interim, term of one appointed to fill a vacancy in¡ the elective office of circuit judge so as to> prevent such ad interim term from extending past the expiration of the term of alii circuit judges then the intention clearly expressed in

Section 6,

Article XVIII that the-ad interim term of such an appointee should, extend to the January following the election and qualification of a successor is nullified. However, if we construe

Section 14,.

Article V to mean that one elected to fill a vacancy in an elective judicial office does-not receive a new full term but only that. portion of the unexpired term of the officer,, or class of officers, involved, it is not inconsistent with

Section 6,

Article XVIII, allows the latter

section to stand and have effect, and further is consistent with Section. 7,

Article XVIII. We reach the same conclusion here.that we reached in our Advisory, in 96 So-2d 541, supra, i. e. that ad interim vacancies in elective judicial offices are filled under the provisions of

Section 6,

Article XVIII, and ch. 114, F.S.A., by appointment of the governor for a term extending, until the first Tuesday after the first Monday in January next after the election and' qualification of a successor at the next general election. We have not overlooked the fact that Sections 15 and 16,

Article V, provide that terms of all circuit judges run concurrently for six years and that the people intended, that the cycle of these terms be fixed and not disturbed. Our decision does not and cannot disturb the cycle so established. The ad interim term given to one appointed to fill a vacancy in an elective office is in no wise related to or affected by the expiration of the regular term of the office. Such ad interim term is a special term carved out of the regular terms of the office. It begins when the office falls ■vacant and terminates with the election and qualification of a successor.

It is a ■contrivance designed to fill important offices by executive power until the people ■can exercise their original power to fill the office by election. See State ex rel. Weeks ■v. Gamble, 13 Fla. 9. One appointed to fill an ad interim vacancy in an elective office does not be•come the holder of any part of a regular term of such office, for only the people can grant the holder a regular term or any part -thereof.

The ad interim terms granted to those who may be appointed circuit judge by the •incumbent governor will expire in the January following the election of those to fill the vacancies in such offices. Those persons thus elected will enter upon the remainder of the regular term of such offices.

Section 7,

Article XVIII limits the term of those elected to the unexpired term of the office as does

Section 14,

Article V. Further

Section 15,

Article V requires that all offices of circuit judge be filled by election in November 1966. Thus the cycle of terms will be preserved. In the instant case the result of our decision would not be different even if we were to agree with the Chancellor in his view that

Section 14 of

Article V has the effect of limiting the terms of office of those who may be appointed by the incumbent governor to midnight January 2, 1961, i. e. the expiration of the current cycle of all offices of circuit judge. Even though we were to adopt this view of the Chancellor, we would nevertheless be forced to conclude that those appointed by the incumbent governor would continue to hold their offices as circuit judge until the January following the election and qualification of their successors at the general election in November 1962. This Court settled this question in the case of State ex rel. Landis v.

Bird, 163 So. 248, supra, when it decided (1) that “There is no provision of law that an office ‘shall become vacant’ or ‘shall be deemed vacant’ because of an expiration of an official term when the successor to the incumbent has not been elected or appointed by the mode provided by law for filling the office * * 163 So. at page 264, and (2) decided that the statute, ch. 114, F.

S.A., “does not authorize an executive appointment to fill an office as for a vacancy therein when a term of an office expires and a successor to the incumbent has not been elected or appointed and confirmed, as may be required for filling regular terms in the office”, 163 So. at page 265, and (3) decided at page 269 of said opinion that “Section 14 of

article 16 of the Constitution in legal effect provides that such judge [the incumbent] ‘shall continue in office’ after the expiration of his official term until his successor is ‘duly qualified.’ And while he so continues in office and the office does not ‘become vacant,’ a successor to such judge can be duly qualified only after being appointed by the governor and confirmed by the senate.” The fact that in the Bird case the incum-ben* judge was the holder of the regular term ^f office, and not merely the unexpired portion of the regular term (which the chancellor held would be the extent of the term of each of the appointees of the incumbent governor in this case), does not in anywise alter the fact that each such appointed judge would at the expiration of the term be the lawful holder and incumbent of each such office.

Nor does the fact that the office of circuit judge is now elective alter the applicability of the Bird decision to this case. The determinative factor on this point is that the incumbent continues to serve after the expiration of his term and until the qualification of his successor. It matters not that the method of “qualification” of the successor was then by appointment of the governor and confirmation by the senate and is now by election of the people. The requirement is the same and only the mode of qualification of the successor is different.

Section 114.01, F.S.A., which prescribes the cases in which offices shall be deemed vacant, has not been amended since the Bird decision. It does not list the expiration of a term of office of an elective office, which has been lawfully filled by appointment, as being a cause of a vacancy. Nor have we found any other provision of law which would create a vacancy in such a case. The fact is that the clear-cut provisions of

Section 114.04 and

Section 14,

Article XVI, Fla. Const., dictate that after being filled by appointment such an office does not become vacant until a successor is elected and qualified. The executive power of appointment cannot be exercised to fill an elective office unless the office be deemed vacant under the law. The offices here involved are now vacant under the provisions of

Section 114.01(6), F.S.A. Assuming as we have in this discussion that the Chancellor’s view of the term of office of the newly created offices is correct, if the incumbent governor fills the offices by appointment they will not thereafter be vacant in the sense that they may be filled by executive appointment, but they will be vacant in the sense that under the provisions of

Section 7,

Article XVIII, they are subject to being filled by the people at the next general election. In the case of State ex rel. Landis v. Baxter, 1936, 122 Fla. 312, 165 So. 271 the governor in 1932 appointed Mr. Baxter to the Broward County Port Authority, his commission being to serve out the unexpired term of his predecessor, which expired January 1, 1935, or until his successor was duly elected and qualified. No successor was elected at the general election in November 1934. In February 1935 the governor appointed another to the office held by Baxter. This Court held that the last appointee could not oust Baxter.

The court ruled that Baxter was the incumbent and that an office is not vacant so long as it has an incumbent who has the lawful right under the constitution or a statute to continue therein either for a fixed term or until the happening of some future event such as the election of a successor.

The effect of the decision in the Baxter case is that the mere expiration of a regular term of office in an elective office for which there is no elected successor does not cause the office to become vacant in the sense that it can be filled by appointment of the governor, and that the incumbent continues to hold such office until the election of a successor — and this even though the incumbent was himself an appointee to fill an unexpired term. If the Chancellor’s view of the effect of

Section 14,

Article V on the length of the terms to which the incumbent governor may appoint be the correct view, this Baxter case and the principle stated therein would prevent the offices from being deemed vacant in the sense that the governor-elect could fill them by appointment on or after January 3, 1961. As we view the Baxter case it stands for the same rule as that announced in the Bird case, and merely applies it to a case in which the office was elective and the incumbent was an appointee to fill an unexpired term.

In his brief, the plaintiff-appellee contends that the Baxter case is not applicable because the statute creating the office there involved specifically provided that the members of the authority would hold office “for the term for which they were elected, and until their successors are elected and qualified. * * * ” (emphasis added) Sec. 6, ch. 15107, Laws of Fla., Special Acts of 1931. This position is not sound.

Section 14,

Article XVI, would have required the same result without the presence of the italicized provision in the statute. We have not overlooked the contention of the plaintiff-appellee that the case of State ex rel. Landis v. Taylor, 1933, 108 Fla. 541, 146 So. 549, controls the case at bar. We have carefully considered the reasoning and holding in that case and do now recede from it. In his decree the Chancellor relied upon the Taylor case and the case of State ex rel. Davis v. Collins, 1931, 101 Fla. 371, 134 So. 595.

Despite the fact that the Collins case is mentioned in the Bird case, but not specifically overruled therein, the decision in the latter case is so plainly contrary to the decision in the former that the Bird case must be held to have overruled the Collins case; we now make it clear that such was the result and therein we receded from the decision in the Collins case. In

summary we in this opinion do decide that: 1. Section 6(2),

Article V, Florida Constitution is self-executing and upon the certification of the 1960 federal census there was created one office of circuit judge for each 50,000 inhabitants or major fraction thereof in each of the judicial circuits of this state. 2.

If the number of circuit judges presently holding such offices in any circuit be less than one such judge for each 50,000 inhabitants or major fraction thereof as shown by the said census, there now exist vacancies in each such circuit in a number necessary to provide one such judge for each 50,000 inhabitants or major fraction thereof, and the incumbent governor has both the authority and duty to fill such vacancies by appointment. 3.

Any commission issued by the incumbent governor in filling any vacant office of circuit judge should run to the first Tuesday after the first Monday in January following the next ensuing general election to be held in November 1962.

If any of these vacant offices not be filled by the incumbent governor, the person who is governor on and after January 3, 1961 will have the authority and duty to fill such vacancies by appointment and any commission issued by him should run to the date above set forth. 4.The person who is governor on and after January 3, 1961 will have no authority to appoint any person to the office of circuit judge, which office shall have been filled by appointment of the incumbent governor, unless any such office shall fall vacant through one of the causes provided by law.

This Court commends the parties to this cause, their counsel, and the amici curiae for their assistance to it at argument and in their briefs, and for the dispatch with which the matter has been handled. In view of the element of time involved in this matter this Court will not follow the usual course, but does now vacate the decree of the Chancellor and the injunction rendered therein against Honorable R. A. Gray, as Secretary of State, and does hereby dismiss this cause in the trial court. The decree of the Chancellor is vacated, the injunction against Honorable R. A.

Gray is vacated, and the cause in the trial court is dismissed. THOMAS, C. J., and DREW and O’CONNELL, JJ., concur. THORNAL, J., concurs with opinion. HOBSON, J., concurs in part and dissents in part. TERRELL and ROBERTS, JJ., dissent. THORNAL, Justice. I agree with the judgment of reversal reflected by the Per Curiam opinion. In addition to the reasons stated, however, I reach the same conclusion for an additional reason not fully discussed herein. The Chancellor appears to have arrived at his decree almost exclusively on the applicability of

Section 14,

Article V, Florida 'Constitution. If one agrees with the Chancellor’s basic premise, his conclusion is ■difficult to avoid. However, I disagree with the Chancellor’s view that

Section 14,

Article V, supra, concludes the instant matter. On the other hand, I do not feel that

Section 14,

Article V, supra, has any applicability whatsoever to the problem presented to us. When this

section of the Constitution is removed from the litigation it is impossible to arrive at the conclusion reached by the Chancellor. It is unnecessary to apply rules of construction to arrive at the meaning of a constitutional provision when the language of the Constitution is clear and explicit. It is my view that

Section 14,

Article V, supra, is clear and explicit and, therefore, precludes the necessity of applying various rules of construction.

Section 14,

Article V, Florida Constitution, reads as follows: “When the office of any judge shall become vacant from any cause, the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the judge whose death, resignation, retirement, or other cause created such vacancy.” (Emphasis added.) When one bears in mind that the current situation involves vacancies which have sprung into existence by virtue of newly created offices, rather than vacancies created by acts of incumbents, it seems clear that the quoted

section could not have been framed with the current situation in mind. When we examine those portions of

Section 14, supra, which we have underscored, it is obvious that it applies only to a situation where the office of a judge has been occupied and, thereafter, becomes vacant for some reason. The

section specifically refers to "the office of any judge." The vacancy comprehended by this

section certainly must be one which occurs in an office previously occupied. If the view needs further support let us look to the language of the

section which provides that “the successor to fill such vacancy" shall be appointed or elected. Obviously, for the appointee to be “the successor” he must succeed someone. An appointee to an office not previously occupied by anyone can not be a “successor” because there is no predecessor. A final reason for this view of

Section 14,

Article V, supra, is that it provides for the appointment or election for the unexpired term “of the judge whose death, etc" created such vacancy. The term of the appointee is thereby directly related to the term of a predecessor in the office. If the office has not been previously occupied by an incumbent there could be no “unexpired term of the judge” whose death etc. created the vacancy. When analyzed carefully it appears to me to be clear that

Section 14,

Article V, can have no applicability to appointees to fill newly created judgeships. This does not mean that there is no constitutional or statutory provision for the filling of such vacancies. It merely means that this particular

section upon which the Chancellor relied for his conclusion was not drafted to cover the situation here presented. When the calendar and election laws tell that this situation could not possibly arise except once every twenty years, it is understandable that those who drafted the Constitution would make provision to cover the situation in some other general article. This is so because only once in every twenty years will a new census and a change of governors’ administrations present the situation. This then leads us to a search for the authority to fill the instant vacancies. As pointed out in the Per Curiam opinion, this authority is clearly found in

Chapter 114, Florida Statutes, F.S.A., which was obviously enacted as an implementation of

Section 7,

Article IV, Florida Constitution. Under

Section 7,

Article IV, supra, when any office shall become vacant “and no mode is provided by this Constitution or by the laws of the State for filling such vacancy” the Governor fills the vacancy for “the unexpircd term.” We must then undertake to ascertain whether any “mode is provided” by the Constitution or laws of the State. This leads us to

Section 114.01(6), Florida Statutes, F.S.A., which provides that when an office is created and has not been filled it is vacant.

Section 114.04, Florida Statutes, F.S.A., authorizes the Governor to fill such vacancy and it further provides that the appointee shall “hold such office until the same shall be filled by an election.” The term of such appointee is expressly provided for in

Section 6,

Article XVIII, Florida Constitution, which clearly stipulates that the terms of such appointees “shall extend only to the first Tuesday after the first Monday in January next after the election and qualification of a successor.” By his decree the able Chancellor took note of

Article V, Section 26(1), Florida Constitution, which provides in sum that revised

Article V, “shall supersede any other provisions of the present constitution of Florida in conflict herewith, which shall then stand repealed.” It appears to be the Chancellor’s view that

Article V, which is the judiciary article, is exclusive and conclusive and that the quoted language of

Section 26 of the

Article precludes our consideration of other applicable provisions of the Constitution. Our difficulty with this argument simply is that

Section 14, of

Article V, upon which he relies, is not applicable to the instant situation and by the final decree itself, it is stated that this

section does not “conflict” with other provisions of the Constitution. Consequently, it would not be subject to the provision of

Article V,

Section 26, supra. I therefore have the view that

Section 14,

Article V, cannot possibly be applicable to the current situation. It is my view that

Section 7,

Article IV, Florida Constitution, as implemented by

Chapter 114, Florida Statutes, F.S.A., is clearly applicable and is the only provision in the laws of Florida authorizing appointments to fill these vacancies.

Section 6,

Article XVIII, Florida Constitution, defines the term of the appointees and is unaffected by any other provision of the Constitution. I am not disturbed by the provisions of Sections 15 and 16,

Article V, which define the so-called six year cycle for circuit judges. This is so because

Section 6,

Article XVIII merely establishes an interim term which fits into the six year cycle and which ultimately would have no adverse affect whatsoever upon the continuity of the cycle. For these reasons, as well as those stated in the Per Curiam, I would reverse the final decree. DREW, J., concurs.