Opinion
February 17, 1950.
Appeal from the Circuit Court of Leon County, W. May Walker, J.
Richard W. Ervin, Attorney General and George M. Powell, Assistant Attorney General, for appellants.
Mabry, Reaves, Carlton, Anderson, Fields Ward, Tampa, for appellee.
George W. Whitehurst filed his bill in the Circuit Court for declaratory decree, alleging that in 1947, he voluntarily accepted the provisions of Section 38.14, F.S.A., and retired as Circuit Judge of the 12th Judicial Circuit after more than 20 years service, that since his retirement he has been paid the monthly compensation provided by said act for a retired Circuit Judge. He further alleges that he has been recently appointed United States District Judge by the President of the United States to reside in the Northern and Southern Districts of Florida and has requested that the Senate not take action on his appointment until the questions raised herein have been adjudicated.
Plaintiff avers that he desires to accept the appointment as United States District Judge but does not want to forfeit his compensation status as a retired Circuit Judge. When Section 38.14, F.S.A., became the law, plaintiff promptly accepted its provisions, notified the Comptroller and the State Treasurer of his acceptance and from the date thereof two per cent of his salary has been deducted and paid into the Circuit Judges Retirement Fund. Plaintiff also avers that he will not accept any part of his retirement compensation as a retired Circuit Judge during the life of his commission as a United States District Judge and in fact has filed with the comptroller his disclaimer thereto, but in case he should cease to be United States District Judge, he believes and avers that he will be entitled to have his compensation as a retired Circuit Judge paid to him thenceforward in the manner provided by law.
Plaintiff further avers that at the general election in 1948 Section 46, Article V of the Constitution, F.S.A., was adopted, providing for a retired status of Circuit Judges, that while plaintiff retired before said amendment was adopted, he has in all respects accepted its provisions provided for those in his class by filing a certificate with the Clerk of the Supreme Court expressing his willingness to perform the duties of a Circuit Judge under the terms of said amendment. Plaintiff believes and avers however that his power to act as a retired Circuit Judge will be suspended during the period he acts under his Commission as a United States District Judge. But he is advised and believes that in case he shall cease to be United States District Judge, he will by virtue of his certificate of willingness or by virtue of another certificate of like character be entitled to resume the powers and duties of a retired Circuit Judge as contemplated by the provisions of the constitution and statute.
The premises considered, the bill prays: (1) That the Court decree plaintiff's compensation status to be not forfeited but that it will continue unchanged notwithstanding his status as United States District Judge. (2) That having disclaimed his right to compensation as a retired Circuit Judge during his tenure as United States District Judge the comptroller will not be required to draw warrants for plaintiff's monthly retirement compensation, that he would otherwise be entitled to. (3) That in event plaintiff ceases to be United States District Judge he may from that date make monthly requisitions to the comptroller for his compensation as a retired Circuit Judge and receive payment therefor from the State Treasury as provided by law. (4) That while the plaintiff holds a commission as United States District Judge or the status of a retired United States District Judge, if he should hold either, his function as a retired Circuit Judge shall cease for that period and remain in suspension, but if he should resign or no longer continue as United States District Judge before he is eligible to retire as such with pay, he shall thereupon automatically return to the status of a retired Circuit Judge.
On a motion to dismiss the bill the chancellor found and adjudicated the plaintiff to have a vested right to receive his compensation as a retired Circuit Judge but that if he should be appointed United States District Judge he could forego that compensation as a retired Circuit Judge during the life of such commission, but if and when he ceases to be United States District Judge, he may then resume his status as a retired Circuit Judge and be paid his compensation as such in the manner provided by law. The chancellor further held the plaintiff disqualified to perform any functions of a retired Circuit Judge during the life of his commission as United States District Judge, but that if and when he ceases to be a United States District Judge he may then indicate his willingness to perform the duties and functions of a retired Circuit Judge in the manner provided by law and when he does so, he will then be subject to call to perform such duties. The defendants have appealed from this judgment.
Two questions or one question with two phases are pressed for our consideration. The first phase of the question has to do with the right of a retired Circuit Judge to accept an appointment as United States District Judge, and ceasing to be such before he is eligible to retire, may he then resume his compensation status as a retired Circuit Judge? The second phase of the question has to do with his right to resume his functional status as a retired Circuit Judge should he cease to be United States District Judge.
The answer to the first phase of this question turns on the interpretation of Section 38.14, F.S.A. As applied to plaintiff it provides that he may voluntarily retire after twenty years service and be paid two-thirds the compensation paid him at the date of his retirement for the balance of his life. Such payments are made from the Circuit Judges' retirement fund to which all Circuit Judges are required to contribute two per cent of their monthly compensation.
After plaintiff retired as a Circuit Judge Section 46 of Article V was approved and added to the State Constitution at the general election in 1948. It provides in substance that Justices of this Court and Circuit Judges eligible to retire with compensation may do so and shall then be qualified to perform all the functions of their respective offices when called upon to do so, but they may not be called without their consent. Any judge having resigned before this amendment became effective, may come under its provisions by filing a certificate of his willingness to do so with the Clerk of the Supreme Court. The plaintiff has filed such certificate and qualified under this provision of the constitution.
The statute and the constitution provide for voluntary retirement of Judges and the voluntary resumption of their duties as such under the conditions named therein. In other words, when Circuit and Supreme Court Justices retire the law clothes them with a retired status under which they may return to duty in the manner provided, but if they return they do not forfeit their retired status. The rule is well settled in this country that when an officer has complied with the statutory prerequisites for retirement with pay his right to retire and draw the retirement compensation becomes vested and cannot thereafter be revoked or impaired. It partakes of the attributes of a contract and in the absence of statutory reservations may not later be adversely changed by the legislature. State ex rel. Stringer v. Lee, 147 Fla. 37, 2 So.2d 127; State ex rel. Holton v. City of Tampa, 119 Fla. 556, 159 So. 292, 98 A.L.R. 501; Raines v. Board of Trustees, 365 Ill. 610, 7 N.E.2d 489; City of Dallas v. Trammell, 129 Tex. 150, 101 S.W.2d 1009, 112 A.L.R. 997, 1009.
If the right to retire and receive retirement compensation as provided by law is voluntary and vested it would seem academic that one entitled to retirement compensation could waive it since it was provided for his benefit. One may waive or remit any constitutional or statutory privilege made for his personal benefit. There is no inhibition against a retired Circuit Judge accepting appointment as a United States District Judge but he cannot perform the duties of a retired Circuit Judge while he acts under such an appointment. Since his functional status as a retired Circuit Judge is voluntary there would seem to be no question that he might accept appointment as United States District Judge, remit his compensation as retired Circuit Judge while he holds such an appointment and then resume the latter if he elects to resign as United States District Judge before he is eligible to retire as such with compensation. The state profits by his generosity in remitting his compensation. Whether he could in law draw his compensation as a retired Circuit Judge while he is a Federal Judge we are not called on to decide and express no opinion.
What has been said as to resuming his compensation status as a retired Circuit Judge applies in a large measure to the second phase of the question, that of resuming his functional status as a retired Circuit Judge. Resuming his functional status as a retired Circuit Judge in the first instance was his voluntary act and could be withdrawn at any time. Accepting appointment as United States District Judge would unquestionably terminate such functions as he may undertake as a retired Circuit Judge, but since he assumed that status voluntarily and since he may abandon it or assume it at any time, it would seem to follow that while it did not exist during his incumbency as United States District Judge he could voluntarily resume it in the manner provided by law when he ceases to be a United States District Judge. The Legislature saw fit to place no restriction whatever on the prerogative of a retired Circuit Judge except that he is forbidden to engage in the practice of law. The obvious purpose of this expressed prohibition was to keep retired Circuit Judges from competing with active practitioners by performing services for clients as advocates or counsellors for compensation. Consequently, we construe the language of the act here under consideration, F.S.A. § 38.16, which reads, "No judge drawing retirement compensation as provided in this charter shall engage in the practice of law" to mean that no retired Circuit Judge shall hold himself out to the public for employment as an attorney or counsellor at law and be eligible to receive retirement compensation during the same period.
So in Florida Statutes, 1941. Probably should read "chapter".
The purpose of providing a retired status for Circuit and Supreme Court Judges under the constitution was to render aid in the dispatch of judicial business in places where dockets were congested and help was needed. The interpretation given here accords with that purpose. It follows that the decree of the court below must be and is hereby affirmed.
Affirmed.
CHAPMAN, SEBRING, HOBSON and ROBERTS, JJ., concur.
ADAMS, C.J., dissents.
THOMAS, J., not participating.
This suit was filed in the Circuit Court February 1. On the same date a motion to dismiss was filed, raising the only defense that the bill "fails to state a claim upon which relief can be granted." On the same date a final decree was rendered and an appeal was taken. No argument or brief in support of the appeal has been made. In fact, appellant has expressly waived filing a brief.
In this writer's opinion, several questions readily appear touching the welfare and integrity of the judiciary calling for research and mature consideration.
The first of these questions relates to the matter of jurisdiction of the subject matter and also of proper parties.
Then the more real one is that of a person's holding two offices as prohibited by Section 15, Article 16, Florida Constitution. A similar question follows by virtue of the Federal Constitution. Appellee is admittedly an officer at present. Will he cease to be one by relinquishing his compensation for an indeterminate period? If he should cease to be an officer of the State of Florida during the interval which he might choose to serve as a federal judge, then could he by his own voluntary act reinvest himself of his former official status? What was the intent and purpose of the constitutional amendment permitting judges to retire? Are we not dealing with an office rather than merely the right to compensation? There also arises the question of whether an officer can waive his compensation.
These, and perhaps other questions, deserve mature consideration.
It may be the answer would be in appellee's favor. Under the circumstances the writer is not disposed to agree with the opinion and judgment inasmuch as it will constitute a precedent in a case of first impression and will, obviously, serve as a guide for other cases to follow.