Charles F. HALL et al., Appellants, v. Edwin E. STRICKLAND, Appellee, 170 So. 2d 827

PER CURIAM. This cause is before the court on direct appeal from a decree of the Circuit Court of Dade County, construing a controlling provision of the Florida Constitution. Jurisdiction of the appeal attaches under Section 4(2),

Article V of the Constitution, F.S.A. This litigation arose out of an amendment to the Home Rule Charter of Dade County with respect to the Metropolitan Court of Dade County. This court was created by the Home Rule Charter of Dade County pursuant to the organic authority granted by the so-called Home Rule Amendment,

Section 11,

Article VIII, Florida Constitution, to “create new courts and judges * * * Under the charter as originally adopted in 1957, the office of judge of the Metropolitan Court was an appointive one, the appointing authority being the County Commission of Dade County. The amendment to the charter carried forward to a limited extent the appointive power of the County Commission; however, a major change resulted from the adoption of a version of the so-called Missouri Plan for selection of judges.

Under the plan adopted by the electorate of Dade County, each appointee to the office of Metropolitan Court Judge who desires to continue in office is required to submit to the electorate “at the first state primary election held more than one year after his appointment” the question of whether or not he or she shall be retained in office, and “shall be subject to approval or rejection in a like manner every sixth year * * * The rejection of a judge by a majority of the electorate at the polls, or the death, resignation, retirement, recall or removal from office of an incumbent, results in a vacancy in the office to be filled by appointment by the County Commission.

The Commission is required to make the appointment from a list of three nominees for each vacancy prepared by the Metropolitan Court Nominating Council — a body created by the amendment to the charter and composed of the presiding circuit judge, three lawyers, and five laymen.

As noted above, both the initial approval (or rejection) of an appointment by the electorate, and the subsequent approval (or rejection) of the incumbent every sixth year (when the incumbent runs on his record, so to speak) must be made at the appropriate “first state primary election.” This election is held on the first Tuesday after the first Monday in May in general-election years.

Section 100.061, Fla.Stat., F.S.A. In line with this tying-in of the tenure of the judgeships to the first week in May, the amendment established a definite cycle for the beginning of the terms of the judges to be selected under the new plan by declaring that “The offices of all incumbent judges of the Metropolitan Court become vacant on May 1, 1964 * * The appellee, plaintiff below, was one of thirteen judges holding office at the time of the adoption of the amendment.

This number of judges had been determined by the County Commission as the number necessary or desirable for conducting the business of the Metropolitan Court, as authorized under the Charter. The Metropolitan Nominating Council recommended that this number of judges be continued and submitted the names of thirty-nine nominees from which the County Commission could, if it chose, select thirteen judges.

The County Commission followed the recommendation of the Council as to the number ■of judges to be appointed; and by resolution dated July 8, 1964, appointed thirteen ■persons from the list submitted by the Council to serve as judges of the Metropolitan Court, and to take effect July 14, 1964. The appellee and the twelve other incumbents — all of whom had been serving ■as “hold-over” judges pending the appointment of their successors, as authorized by the amendment — were among the thirty-nine nominees submitted by the Council to the Commission.

Only six of the incumbents were, however, selected by the Commission; and the appellee was not one of them. This suit seeking declaratory relief and attacking the charter amendment on various grounds was filed by the appellee on July 10, 1964. The cause was heard by the Chancellor on the complaint, and the answer and motion to dismiss of the appellants, defendants below, who are the Mayor and members of the Board of County Commissioners of Dade County.

In his ■decree he found that the charter amendment was a valid and constitutional enactment of the electors of Dade County except as it provided that the offices of the incumbent judges “became vacant” on May 1, 1964. He held that this portion of the amendment was a violation of

Section 24 of

Article V of the Florida Constitution “as a reduction in the number of judges of the Metropolitan Court which shortens the term of the judges then in office.” This appeal followed. Directly involved is the question of whether or not judges of the Metropolitan Court of Dade County, Florida, are within the purview of

Article V of the Constitution of Florida.

Section 1,

Article V, supra, provides: “Courts. The judicial power of the State of Florida is vested in a supreme court, district courts of appeal, circuit courts, Court of Record of Escambia County, criminal courts of record, county courts, county judges’ courts, juvenile courts, courts of justices of the peace, and such other courts, including municipal courts, or commissions, as the legislature may from time to time ordain and establish.” It is noteworthy that

Section 1 does not relate to the Metropolitan Court, nor is such a court or commission ordained and established by the Legislature of Florida.

Section 11,

Article VIII, Constitution of Florida (Dade County Home Rule Charter) among other things provides: “(

b) May grant full power and authority to the Board of County Commissioners of Dade County to pass ordinances relating to the affairs, property and government of Dade County and provide suitable penalties for the violation thereof; to levy and collect such taxes as may be authorized by general law and no other taxes, and to do everything necessary to carry on a central metropolitan government in Dade County.” We take note that

Article V and

Article VIII were both adopted in the general election of 1956 and should be considered in pari materia. Therefore, we are forced to the conclusion that such sovereignty as is possessed by the Metropolitan Court was transmitted exclusively by

Section 11,

Article VIII of our Constitution, and no part of such sovereignty was de-raigned under

Article V. We therefore hold that the Metropolitan Court was created by and operates within the exclusive orbit of

Section 11,

Article VIII, and its judges deraign no part of their powers, duties, responsibilities, shelter or protection under

Article V. Accordingly, the judges of the Metropolitan Court having no authority or responsibility under

Article V cannot invoke any part of it as a shelter for judges situated as the one now under consideration. We come then to the question of whether or not the people of Dade County had the right under

Section 11 of

Article VIII, supra, to amend their charter and terminate the tenure of judges holding office created by the Metropolitan government of Dade County. We think they did. Under the system authorized to be established under

Article VIII, insofar as the local affairs, property and government of Dade County are concerned, and subject to the limitations therein provided, the ordinances not infrequently take the place of what in other counties is accomplished by local bill legislation. Ordinarily, special courts, in response to local needs, are handled in such manner. Being of legislative origin, the Metropolitan Court is wholly within the legislative control of Dade County. As stated in City of Jacksonville v.

Smoot, 83 Fla. 575, 92 So. 617, “ * * * the power of removal from office is incident to the power of appointment, and an office created by the Legislature may be abolished by the Legislature, even during the term for which the incumbent was elected or appointed, without violating any of his constitutional rights, in the absence of any constitutional limitation on the subject.” And so it is that the Metropolitan Court of Dade County, deriving its sovereignty exclusively under

Section 11 of

Article VIII, has no dependence on

Article V and the provisions of

Article V will not apply to nor be available to the judges of such court;, we further hold that the Metropolitan! Court, being of legislative origin, was subject to legislative change during the term' of its incumbent judges. City of Jacksonville v. Smoot, supra.

To hold as did the-chancellor that a legislative body must postpone a reorganization, for the public welfare, of a court which is its creature, until the end of the term of every incumbent judge, is to read into the constitutional, provision a meaning that is not there, ini violation of the fundamental principle that, “the terms of an organic provision will not be strained to imply a limitation upon the-lawmaking power * * *.” State ex rel. West v. Butler, 70 Fla. 102, 69 So. 771.

The appellee, in support of the decree-here reviewed, cites decisions from other jurisdictions holding that the legislature-cannot, under the guise of a change in the-law which is “colorable” only, shorten the term of an incumbent. Traywick v. Gilkey, 167 Tenn. 465, 71 S.W.2d 676. But this-case, while holding that

an act reducing the number of highway commissioners was a “colorable” change only and not a “real and substantial” change in the law, pointed out that a change in the method of selection of the officer is a fundamental change sufficient to justify the shortening of the term of office of the incumbent. Cf. Loring v. McGinness, 163 Tenn. 543, 44 S.W.2d 314. Later, another Tennessee decision, Caldwell v. Lyon, 168 Tenn. 607, 80 S.W.2d 80, 100 A.L.R. 1152, reaffirms the view of that court, that a change in the manner of the selection of the office-holder is “clearly fundamental.” See also Millard v.

Guy, 334 Mich. 694, 55 N.W.2d 210, involving a change from an appointive to an elective office, and Gorham v. Robinson, 57 R.I. 1, 186 A. 832, in which the power of the legislature to shorten the term of office is reviewed at length. From what has been said before, it is clear that the charter amendment in question was not “colorable” only; it made a substantial change in the method of selection of the judges of the Metropolitan Court.

Although the amendment, in terms, provided only that the offices of the incumbents would “become vacant” on May 1, 1964, for all practical purposes the office of judge of the Metropolitan Court of Dade County, as it existed prior to the amendment, was “terminated and the new type of judgeship, emanating from a new plan of selection provided for in the charter revision came into being on May 1, 1964.

It is conceded that the legislature may abolish a judgeship which it has created; and it follows that the electorate of Dade County could provide for the new judges to be appointed on or soon after May 1, 1964, so as to begin the new cycle of elections of judges provided for in the revised plan — which, as noted, is tied into the first primary election in May of the appropriate year. Cf. Klein v. Schulz, Fla.1956, 87 So.2d 406, in which this court approved a legislative plan changing an appointive judgeship to an elective one and cutting short the term of the incumbent judge. In

summary, we hold that the appellee cannot avail himself of the protection of

Section 24,

Article V, since his tenure and functions are exclusively within the orbit of

Section 11 of

Article VIII, and we further hold that the Metropolitan government provided the office in the first place by a form of legislation and for the reasons above mentioned had the right to take it away. We have also considered the cross-assignments of error argued by the appellee and find no error in the decree upholding the validity of the charter amendment, as against the attacks on other grounds.

For the reasons stated, the decree here reviewed must be reversed insofar as it holds invalid that portion of the charter amendment terminating the offices of the incumbent judges, including the appellee’s term of office as of May 1, 1964. In all other respects, it is affirmed. Affirmed in part and reversed in part. DREW, C. J., and O’CONNELL and CALDWELL, JJ., concur. THORNAL, J., concurs specially with opinion. HOBSON, J. (Ret.), concurs specially with opinion, sitting for THOMAS, J., absent on account of illness. ROBERTS, J., dissents with opinion. ERVIN, J., dissents and agrees with ROBERTS, J.