Acts of General Assembly organizing the Court.

tices of the said court to notify the same to any one or two Judges of the Circuit Court, as the case may be, and the time and place when such causes shall be set for hearing; and it is hereby made the duty of such Circuit Judge or Judges, upon receiving such notice, to attend at the time and place designated, and he or they shall be, and are hereby, invested in full authority, in conjunction with the remaining Justice or Justices of the Supreme Court, to hear and determine the causes of which they were notified as aforesaid.

SEC. 6. Be it further enacted, That, in the event of the death, resignation or removal from the State of any one of the Justices of said court, the Governor of this State shall appoint some suitable person who shall supply the vacancy, until the same is filled by the General Assembly.

SEC. 7. Be it further enacted, That, from and after the said first day of January, in the year one thouseand eight hundred and fifty-one, all laws and parts of laws conflicting with or coming within the purview of this act, shall be repealed.

[Passed the House of Representatives, December 20, 1850. Passed the Senate, January 6, 1851. Approved by the Governor, January 11, 1851.]

First section of An Act to amend An Act to organize the Supreme Court of the State of Florida.

SEC. 1. Be it enacted by the Senate and House of Representatives of the State of Florida in General Assembly convened, That, whenever one or more Judges of the Circuit Court shall, under the provisions of the fifth section of the act to which this is an amendment, hear and determine causes in the Supreme Court, the said Judge or Judges of the Circuit Court, for the time during which he or they shall be so engaged in hearing and determining said causes, shall

Eligibility of Circuit Court Judges.-Opinion of Court.

be and constitute a part of the Supreme Court of the State of Florida, anything in the act to which this is an amendment to the contrary notwithstanding.

[Passed the House of Representatives, January 22, 1851. Passed the Senate, January 23, 1851. Approved by the Governor, January 24, 1851.]

The eighth section of the fifth article of the constitution does not render a Judge of the Circuit Court ineligible to the office of Justice of the Supreme Court.

The Supreme Court is established by the imperative terms of the constitution, and by the third section of the fifth article, the powers of the court were vested in, and its duties directed to be performed by, the Judges of the several Circuit Courts, for the term of five years from their election, and thereafter, until the General Asembly should otherwise provide. The General Assembly, by the acts of January 11th, 1851, and January 24th, 1851, has not otherwise provided altogether, but in part only. The powers of the Circuit Judges, as Judges of the Supreme Court, have not been taken away, or dispensed with. On the contrary, their services are, by the fifth section of the one, and the first section of the other, expressly required and retained in the cause therein specified.

The fifth section of the act of January 11th, and the first section of the act of January 24th, 1851, are not, therefore, in conflict with the constitution.

In the matter of the authority of the Judges of the Circuit Courts to sit in this court as Justices thereof,

THOMPSON, Justice, delivered the opinion of the court.

The fifth section of the act of January 11, 1851, entitled An act to organize the Supreme Court of the State of Florida, provides that, whenever from any cause, any one or two Justices of this Court are disqualified or disabled from hearing and determining any cause brought before them, it shall be the duty of the Justices of this court to notify the

Eligibility of Circuit Court Judges.-Opinion of Court.

same to any one or two Judges of the Circuit Court, as the case may be, and the time and place when such causes shall be set for hearing, and it is made the duty of such Circuit Judge or Judges, upon receiving such notice, to attend at the time and place designated, and he, or they, shall be, and are, invested with full authority, in conjunction with the remaining Justice or Justices of this court, to hear and determine the causes of which they were notified as aforesaid.

And by the first section of the act of January 24, 1851, to amend the foregoing act, it is provided that such Circuit Judge or Judges as may be called on as provided, for the time during which he or they shall be so engaged in hearing and determining causes in this court, shall be and constitute a part of the Supreme Court of the State of Florida.

The contingency mentioned and provided against in the fifth section of the act of January 11, 1851, having arisen in consequence of the disability of two of the Justices of this court, who had been of counsel in several causes pending, and on the calendar for trial, this court proceeded to make the necessary requisitions upon the Judges of the Circuit Courts, to supply the deficiency. But the question of the eligibility of the Judges of the Circuit Courts to election as Justices of this court, having been raised and mooted in the General Assembly during its late session, and the opinion of the Attorney General thereon called for by the House of Representatives, and it being understood that some members of the bar entertained opinions adverse to that of the Attorney General-under these circumstances, the Honorable THOMAS DOUGLAS, Judge of the Circuit Court of the Eastern Circuit, on being requested to preside in the adjudication of several cases, stated these facts, and requested of this court the expression of an opinion on the subject; his Honor holding, that if the opinion of the ineligibility of the Judges of the Circuit Courts to be elected

Eligibility of Circuit Court Judges.-Opinion of Court.

Justices of this court was well founded, it followed, as a legitimate deduction, that they could not legally sit herein, and take part in the adjudication of causes, which the Justices of this court were disabled to hear and determine.

For the purpose of satisfying the learned Judge, who was very properly unwilling to assume the exercise of a doubtful power, we consented to consider the question, and for this purpose, invited the members of the bar to discuss it before us. Whether we were wise in thus consenting to consider the subject in its present shape, and to express an opinion thereon, is, in itself, a question of very doubtful propriety; yet we shall feel some gratification if our judgment, although it may be deemed extra judicial, shall possess sufficient weight to put the question at rest.

The decision of the question as presented, involves an inquiry into the constitutionality of the acts of January 11th and 24th, before referred to, so far as they provide for calling in the Judges of the Circuit Courts to assist in the determination of causes in this court. The Judiciary has no direct delegation of power to declare an act of the General Assembly unconstitutional and void, but it is an incidental authority, unavoidably exercised in administering the paramount law of the Constitution. To call this incidental power into action, there must be a suit or judicial proceeding in which a conflict arises, or is supposed to arise, between the Constitution and a statute, and which affects the rights of the parties litigant. In the present case, there is no such suit, or other proceeding before us; and if we had a doubt upon the subject, it would be our duty to decline the expression of any opinion, until the question was directly presented for adjudication. Fearing that a refusal to express our opinions may imply a doubt, which we do not entertain, we proceed to give our views.

The clause of the Constitution which is supposed to render Judges of the Circuit Court ineligible to the office of Jus

Eligibility of Circuit Court Judges.-Opinion of Court.

tice of the Supreme Court, is the 8th section of the 6th article, and is in the following terms: "No Governor, Justice "of the Supreme Court, Chancellor, or Judge of this State, "shall be eligible to election or appointment to any other "and different station, or office, or post of honor, or emol"ument, under this State, or to the station of Senator or "Representative in Congress of the United States from "this State, until one year after he shall have ceased to be "such Governor, Justice, Chancellor, or Judge." We have been referred to the opinion given by the Attorney General upon the call of the House of Representatives, and the interpretation which he gives to this clause of the Constitution meets with our entire approbation.

The use of the terms, "any other and different station," &c. would seem to imply that the words other and different were used in contradistinction to each other-they were not to be considered as synonymous, or convertible terms. We concur with him in the belief, that the language employed points not alone to another station or office, but to one which is also different in its structure, character, duties and the nature of its functions. It is to be observed, that the restriction acts alone on the magistracy composing the executive and judicial departments of the government, and it would seem that the convention intended to remove from the officers of those departments all temptation to prostitute the duties of their station to courting popularity, or hunting after other and different stations during the time they so held office, by rendering them ineligible during that period, and for one year afterwards. The Government is created for the purpose of securing the happiness and safety of the people, and nothing can tend so much to the attainment of that end, as that the executive officer shall, without fear, favor, or affection, perform his duty in the enforcement of the laws, and that the officers composing the judicial departments shall preserve the fountains of justice