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sumption that both were intended to exist to effectuate
the intent of the legislature. In other words, they should
if possible, be construed in pari materia. Hcwever, whe~
such acts are in irreconcilable conflict, as here, the statute which is the latest enactment will operate to impliedly repeal the prior statute at the same session, to
the extent of the conflict in their provisions. See also
Winslow v. Fleischner et aI, 228 P. 101; State v. Marcus,
281 P. 454; State ex reI Kell v. Kremer, 160 N. E. 60;
Neubauer v. State, 161 N. E. 826; Williams v. State, 223
S. W. 2d 190; which held that an act passed later and
going into effect earlier will prevail over one passed
earlier and going into effect later. Sumpter v. Burchett,
202 S. W. 2d 735; Campbell County Election Commission
v. Weber, 42 S. W. 2d 511; Wright v. Broether, 196
S. W. 2d 82; Adams County v. Smith, 23 N. W. 2d 873;
People ex reI Martin v. Oak Park, 24 N. E. 2d 571; People ex reI Christensen v. Board of Education Cook County, 65 N. E. 2d 825; Gates v. Hickman, 70 N. E. 2d 441;
State ex reI Shomaker v. Superior Court for King County, 70 P. 2d 306; City of Council Grove v. Schmidt, 127
P. 2d 250."
In view of the foregoing authority, I feel that the last expression of the legislature, that is to say Ch. 29752, 1955, fixes
the compensation to be paid county commissioners in those counties covered by paragraph (d) of sub § (1), §125.161, F. S., which
includes Okaloosa county.
We assume for the purpose of this discussion that all legislative acts referred to herein are constitutional, since I feel that
only a court of competent jurisdiction in an appropriate proceeding may settle the question with finality.
055-182-August 3, 1955
COUNTY ORGANIZATION
COUNTY COMMISSIONER-REMOVAL FROM DISTRICTVACATION OF OFFICE-§114.01(4), F. S.
To:
LeRoy Collins, Gove1'1wr, State of Florida., Tallahassee
QUESTION:
A county commissioner, elected in district 5 of a
county, took office and discharged his duties. During his
term, but approximately 3112 yrs. later, he ~oId his home
in said district, moving into a rented home in an adjacent district where he apparently has established his
permanent residence. Has said county commissioner by
reason of §114.01 (4), F. S., vacated his office?
As you know, residence, or domicile, is in many instances
difficult to determine. In view of the statements in the commissioner's letter of July 22, 1955, the enclosure attached to
your request, I assume that when he sold his house he intended
to become permanently domiciled or reside elsewhere than in
district 5. My discussion, therefore, is predicated upon that assumption.
BIENNIAL REPORT OF THE ATTORNEY GENERAL
241
Section 114.01 (4), F. S., reads: "Every office shall be
deemed vacant in the following cases: . . . (4) By his ceasing
to be an inhabitant of the state, district, county, town or city
for which he shall have been elected."
Section 5, Art. VIII, Fla. Const., provides "... There shall be
one county commissioner in each of the 5 county commissioner's
districts in each county . . ." It further provides that county
commissioners "... shall be elected by the qualified electors of
said county . . ."
In Ervin v. Richardson, 70 So. 2d 585 the court held that
§100.081, F. S., providing that county commissioners shall be
nominated by the several districts instead of by the county at
large, was constitutional for the reason that §5, Art. VIn provides the exclusive method by which county commissioners shall
be elected.
We find no Florida cases touching upon the question. In
opinion 051-265, dated Aug. 9, 1951, copy of which is enclosed,
(AGO 1951-1952, p. 223) we were considering the situation where
a county was redistricted according to the mandate of the constitution during the term of a comity commissioner who, by reason of such redistricting no longer resided within the district
from which elected. The problem was whether or not the office
became vacant under the provisions of §114.01 (4), F. S. We
held that the county commissioner might serve out the term for
which elected so as to harmonize with the constitutional provision fixing his office at 4 years. However, the situation now before us is entirely different in that the act of the commissioner
was a voluntary removal from the district.
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In opinion 053-48, dated March 4, 1953, copy of which is
enclosed, (AGO 1953-1954, p. 566) we call attention to question
2 thereof dealing with whether or not a supervisor of a soil
conservation district is required to be a resident of such district. I quote the 2nd paragraph thereof as follows:
"With certain specific exceptions, neither the constitution nor the statutes directly require residence within the territorial jurisdiction served by public officers,
and in some early cases our supreme court declined to
hold residence a requisite. The court did say that by
custom and long standing an officer should reside in,
or be identified with, the community which he serves
(Advisory opinion, 57 So. 351, and cases cited). §114.01 of
the statutes provides that an office, including a district
office, shall be vacant when an officer ceases to be an
inhabitant of a district for which he shall have been
elected or appointed. In that provision of the statute,
there is at least a strong implication of legislative intent that an officer must be an inhabitant of the district
which he ·serves. I construe the word 'inhabitant' as used
in the statute, to mean resident. It is my opinion that a
supervisor must be a resident of the district he serves."
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While it is true that county commissioners are elected county-
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242
BIENNIAL REPORT OF THE ATTORNEY GENERAL
wIde, the constitution requires that there shall be 1 county
commissioner in each district.
Until a court of competent jurisdiction says otherwise, and
by reason of the foregoing, I believe residence in the county is
not enough but that the constitution and the statute contemplate
that the county commissioner must reside in the district in which
he was elected. Accordingly, based upon the assumption that
the commissioner has permanently changed his residence from
district 5, the question is answered in the affirmative.
055-184-August 23, 1955
COUNTY ORGANIZATION
COUNTY COMMISSIONERS-POWERS-LEASE OF PORTION
OF COUNTY HEALTH CLINIC-WAKULLA COUNTY
To:
J. H. Hudson, Attorney, Board of County Commissionet's,
Wakulla County, Crawfordville
QUESTIONS:
1. Where there is no statute or special act permitting, may the board of county commissioners of
Wakulla county submit upon the ballot of a general election the question of whether or not the electors desire
the board to enter into a lease agreement covering county property?
2. May the board of county commissioners enter
into a 10-year lease of a portion of the county health
clinic to be occupied exclusively by a physician in the
private practice of medicine?
3. May the board of county commissioners enter
into a lease agreement as contemplated above for 10
years which extends beyond the terms of their respective
offices?
AS TO QUESTION 1:
Enclosed is a copy of opinion 053-247, dated Sept. 17, 1953
(AGO 1953-1954, p. 69) dealing with the question of straw vote.
The opinion points out that the words "straw vote" are those
held in an election not directed or authorized by law". . . but
is a method determined to be used by the board of county commissioners to obtain an expression of the voters of the county
with respect to the mentioned issue; . . ." Since you did not
call our attention to any special law which might empower the
ooard of county commissioners to place the question upon the ballot,
we assume there is none. The putting of the question in the
form of a ballot would answer no county purpose and, hence,
there is no authority for the expenditure of county funds for
holding such election. In this connection, I call attention to the
case of Free Enterprise Foundation, Inc. v. R. A. Gray, Secretary of State, decided in the second judicial circuit of the state
by Hon. W. May Walker, circuit judge. A bill for declaratory
decree was filed against the secretary of state with regard to
his placing upon the ballot at the 1950 general election a ques-