#### In Re Advisory Opinion to the Governor.

Opinion Rendered May 30, 1923.

The census taken in May, 1923, by authority of the Act of the Legislature passed at the 1923 Session, is “the last” State Census, occurring before the passage of the law approved May 28, 1923, authorizing the appointment of an additional Circuit Judge for the Eleventh Judicial Circuit, and the Governor is authorized under that law and the Amendment to Section 43, Article 5 of the Constitution, to appoint an additional Circuit Judge for the Eleventh Circuit.

Hon. Cary A. Hardee,

Governor of Florida,

Tallahassee, Fla.

Sir:—

We have the honor to acknowledge receipt of your communication of May 29th, as follows:

> *506“To the Honorable Chief Justice, and Justices of the Supreme Court of Florida.

> Tallahassee, Florida.

> Gentlemen:—

> Under the provisions of Section 13 of Article IV of our Constitution, I have the honor to request your written opinion affecting my powers and duties, as Chief Executive, under Section 43 of Article V of the Constitution of Florida, which reads in part as follows:

> “ ‘No additional Circuit Judge or Judges shall be authorized to be appointed in Circuits having less than 75,000 inhabitants by- the last Federal or State census occurring next before the passage of the law for his or their appointment.’

> ‘ ‘ The Legislature now in session has passed an Act providing for a census in Broward, Dade and Monroe Counties. The said census has been taken and the result thereof certified to the Commissioner of Agriculture. As further provided under Section 43 of Article V of the Constitution, the present Session of the Legislature has also passed an Act providing for an additional Circuit Judge in and for the 11th Judicial Circuit of Florida, which has been approved by the Governor. A copy of both the said Bills and a certificate of the Commissioner of Agriculture, showing a result of the census as above referred to, are attached hereto for your information and convenience.

> 1 ‘ I desire to be advised if, in view of the foregoing provision of the Constitution, and in the light of the facts as enumerated, I would be authorized as Governor, at this time, to appoint an additional Judge -in and for the 11th Judicial Circuit of Florida.

> Respectfully submitted,

> Cary A. Hardee,

> Governor. ’ ’

*507This calls for our opinion on the interpretation of the amendment of Sec. 43, Art. 5 of the Constitution of Florida that was duly ratified at the General Election on November 7th, 1922, and which is now a part of the Constitution of Florida.

The portion of the Constitution requiring our interpretation is as follows:

> ‘ ‘ The Legislature may from time. to time and as the business of any circuit requires, provide for the appointment of one or more additional Circuit Judges for such Circuit * * * No additional Circuit Judge or Judges shall be authorized to be appointed in a Circuit having less than 75,000 inhabitants by the last Federal or State census occurring next before the passage of the law for his or their appointment.”

It appears from the data which you have transmitted to us, that a State census was taken in Dade and'Monroe Counties and complete returns thereof made to the Commissioner of Agriculture on the 20th'of May, 1923; and that the 11th Judicial Circuit, composed of Dade and Monroe Counties has a total population of 90,028 inhabitants.

On the 28th of May, you as Governor of Florida approved an Act of the Legislature, which thereby then became a law, providing for the appointment of an additional. Circuit Judge for the said 11th Judicial Circuit.

The census that was completed on May 20,. 1923, was “the last” “State census occurring lief ore the passage of the law,” for.the appointment of an additional Judge for the Eleventh Circuit, and it showed that the Eleventh Circuit had over 75,000 inhabitants.- After this census was taken the Legislature provided for the appointment of an additional judge for that circuit.

*508We therefore advise' you that under the provisions of the amendment of Section 43, Art. 5 of the Constitution heretofore referred to, it becomes your executive duty to appoint an additional judge for the Eleventh Judicial Circuit of Florida.

Respectfully submitted,

R. F. Taylor, Chief Justice

J. B. Whitfield

Jefferson B. Browne

Glenn Terrell

Justices of the Supreme Court.

Ellis and West, JJ., absent. '