84 Fla. 592 | Fla. | 1922
Lead Opinion
Upon the petition of the Atlantic Coast Line Railway Company, an alternative writ of mandamus was issued to the Board of Equalizers of the State of Florida, consisting of Cary A. Hardee, Governor, Rivers Buford, Attorney General, and J. C. Luning, State Treasurer, commanding them to take jurisdiction of an appeal taken by the relator from the assessment and valuation by the Comptroller of the property of the Atlantic Coast Line Railway Company for taxation for the year 1922.
The petition for the writ alleges that the Comptroller did value and assess the property of the Atlantic Coast Line Railway Company and give notice to the relator of such assessment and valuation; that the relator was dissatisfied with the valuation made by the Comptroller and did enter and file its appeal to the Board of Equalizers of the State of Florida as provided for in Section 7, Chapter 8584, Acts of 1921, Laws of Florida.
This the return admits, and the effect of this admission and the averment in the 6th paragraph of the return, is, that the respondents refused to obey Sections 6 and 7 of Chapter 8584, Acts of 1921, Laws of Florida, because they consider them unconstitutional. The sufficiency of this return is challenged by the motion for a peremptory writ.
This raises at the outset the question: has a ministerial officer the right or power to declare an Act unconstitutional, or to raise the question of its uneonstitutionality without showing that he will be injured in person, property, or rights by its enforcement?
Every law found upon the statute books is presumptively constitutional until declared otherwise by the courts, and the allegation in the return that Section 6 is unconstitutional, means that it has been so declared by a court of competent jurisdiction.
This court, therefore, is confronted át once with the question, “Is that allegation true?” Finding that it is not— the power to declare an Act'unconstitutional being lodged nowhere but in the courts — such an allegation in the return is no defense. We are, therefore, not called upon to pass upon the constitutionality of the Act because it not having been declared unconstitutional by the courts, ministerial officers must obey it, until in a proper proceeding its constitutionality is judicially passed upon.
When Mr. Chief Justice Marshall first laid down the doctrine that the judiciary was clothed with power to pass upon the constitutionality of legislative Acts, it met with violent opposition. Great publicists, including Mr. Thomas Jefferson, Spencer Roan, Niles of Niles Register, and others denied the right of the courts to pass upon the constitutionality of a regularly enacted statute. Andrew Jackson also thundered against it.
For many years the doctrines expounded by Chief Justice Marshall seemed settled and secure, and no longer questionable. Recently a well organized movement has been inaugurated in this country to take this power away from the courts, and at the recent election there were nearly sixty candidates for Congress who have pledged themselves to modify, if not to entirely abrogate, this great doctrine, without which governments limited by written constitutions will be destroyed. Any tendency on the part of the courts to extend this doctrine and to recognize the right or power of ministerial officers to refuse to enforce a law found on the statute books, whenever, in their judgment, it is unconstitutional, will give impetus to the movement to abrogate or limit this power of the courts.
The contention that the oath of a public official requiring him to obey the constitution, places upon him the duty or obligation to determine whether an Act is constitutional before he will obey it, is, I think, without merit. The fallacy in it is that every Act of the legislature is presumably constitutional until judicially declared otherwise, and the oath of office “to obey the constitution,” means
The doctrine that the oath of office of a public official requires him to decide for himself whether or not an Act is constitutional before obeying it, will lend to strange results, and set at naught other binding provisions of the constitution.
An illustration — one not conjured by an active imagination, but potent with immediate possibilities — is this: Under Section 28 of Article III of the constitution of Florida, the Governor may refuse to' sign a bill that has passed' the legislature and “return it with his objections to the house in which it originated, which house shall cause such objections to be entered upon its journal, and proceed to reconsider it; if after its reconsideration it shall pass both houses by a two-thirds vote of the members present, which vote shall be entered on the journal of each house, it shall become a law.”
Bills are frequently returned to the legislature by the Governor without his approval, because in his opinion, they are unconstitutional. That power is lodged in him, but it will be observed that it is a bill that has not yet become a law, and not a regularly enacted statute upon the constitutionality of which he expresses himself in his veto message. Having done this, and the legislature upon reconsideration having passed the bill in both houses by the vote of two-thirds of the members present, what then b9c0m.es of the doctrine of the obligation or duty of a pub ■ lie officer to refuse to obey a law which he believes to be unconstitutional, but which has not yet been so declared by the courts? If it is sound, the passage of a bill over his veto, is perfunctory, because under that doctrine the Governor would have to refuse to enforce the law that was
It is contended that an individual may refuse to obey a law that he believes to be unconstitutional, and take a chance on its fate in the courts. He does this, however, “at Ms peril,” the “peril” being to suffer the consequences, such as fine or imprisonment or both, if the courts should hold the Act to be constitutional.
A ministerial officer refusing to enforce a law because in his opinion it is unconstitutional takes no such risk. He does nothing “at his peril,” because he subjects himself to no penalty if his opinion as to the. unconstitutionality of an Act isi not sustained by the courts.
It is the doctrine of nullification, pure and simple, and whatever may have been said of the soundness 'of that doctrine when sought to be applied by States to Acts of Congress, the most-ardent followers of Mr. Calhoun never extended it to give ministerial officers the right and power to nullify a legislative enactment.
It is lodging in them the same power that exists in the Circuit and inferior courts, which may declare an Act unconstitutional, subject to review by the Supreme Court.
The right to declare an act unconstitutional is purely a judicial power, and cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the constitution. It is true- that the Supreme Court of Nebraska in Van Horn
A higher sense of duty was thus expressed by President Lincoln in his First Inaugural Address to Congress: “I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those Acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional. ’ ’
In Illinois, the first attempt by a ministerial officer to exercise judicial function of declaring a law unconstitutional met with prompt disapproval in the Supreme Court of that state. The court said: ‘ ‘ The law under which this additional tax was imposed, had passed the legislature under all the forms of the constitution, and had received executive sanction, and became, by its own intrinsic force, the law to you, to every other public officer in the State, and to all the people. You assumed the responsibility of declaring the law unconstitutional, and at once determined to disregard it, to set up your own judgment as superior to the expressed will of the legislature, asserting, in fact, an entire independence thereof. This is the first case in our judicial history, in which a ministerial officer has taken upon himself the responsibility of nullifying an Act of the legislature for the better collection of the public revenue— of arresting its operation — of disobeying its behests, and placing his own judgment above legislative authority expressed in the form of law.
“To the law every man owes homage, ‘the very least as needing its care, the greatest as not exempted from its power.’ To allow a ministerial officer to decide upon the
Passing now to the next point: It is well settled that this court “will not pass upon the constitutionality of a law in any case unless it is necessary to do so. ’ ’ State ex rel. Morgan v. Louisville & N. R. Co., 51 Fla. 311, 40 South. Rep. 885.
In State ex rel. Russo v. Parker, 57 Fla. 170, 49 South. Rep. 124, this court reiterated the doctrine in this language: “Where a court can effectually and properly dispose of a case without passing upon the constitutionality of. a statute involved, it is, its duty to do so. ’ ’
The same doctrine was announced by this court in the two cases of State ex rel. Wolyn v Apalachicola N. R. Co., 81 Fla. 383, 87 South. Rep. 909, and State ex rel. Wolyn v. Apalachicola N. R. Co., 81 Fla. 394, 88 South. Rep. 310.
In the instant case the question involved is the power of a ministerial officer to refuse to perform a statutory duty because in his opinion a law is unconstitutional that has not been passed upon up the judiciary. This question can be decided without passing upon the constiutionality of the statute involved, and we should dispose of it upon that phase only.
It is no answer, to say that the courts will not require a ministerial officer to perform an unconstitutional act. That aspect of the case is not before us. We must first determine the power of the ministerial officer to refuse to perform a statutory duty because m his opinion the law
There is another doctrine of this and other courts that makes the return to the writ insufficient to prevent the issuance of the peremptory writ, and that is, that it does not appear from the return, nor do we think that it can be made to appear, that the respondents have any material interest — personal or pecuniary — that would be injuriously affected or prejudiced by the Act in question, entitling them to question its constiutionality.
This rule was followed by this court in the case of County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471, where it was said: “Not only is it true that a court will not, as a general rule, pass upon a constitutional question and decide a statute to be invalid, unless a decision upon that very point becomes statutory, but it is also a rule that a court will not listen to an objection made to the constitutionality of a statute by a party whose rights it does not affect, and who has, therefore, no interest in defeating it. Cooley s Const. Lim. (5th Ed.) 197. A party who seeks to have an Act of the legislature declared unconstitutional, must, says the Supreme Court of Alabama, in Jones et al. v. Black et al., 48 Ala. 540, not only show that he is or will be injured by it, but he must also show how and in what respect he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown. The complainants, sued as residents and electors of the countv, without showing any injury to themselves in person, property or rights, and it was held that the act would not be declared unconstitutional on' tlieir application to enjoin the holding of an election on the ground that the statute was unconstitutional. ’ ’
The case of Wade v. Atlantic Lumber Co., 51 Fla. 628, 41 South. Rep. 72; Disston v. Board of Trustees of Internal Improvement Fund of State of Florida, 75 Fla. 653, 79 South. Rep. 295, are not authority for the doctrine that ministerial officers have the right to declare a statute unconstitutional, when their material rights are not affected by it. The Wade case was a suit in equity between private parties, and no State officer was a party.
In the Disston case, it was sought to establish and enforce a trust based upon an alleged agreement between the Trustees of the Internal Improvement Fund, which agreement was entered into by the Trustees in accordance with the provisions of Chapter 3996, Laws of Florida, Acts of 1889. The lands had passed from the Trustees to parties who were made defendants, and they as well as the Trustees alleged, as one of the grounds of their demurrers, that the Act under which the' agreement was entered into between the Trustees and those from whom the complainants derived title, was unconstitutional. There were private parties before the court, whose right to the lands was assailed, who also raised the question of the constitutionality of the Act, which the court could not refuse to
In neither of these cases, however, was the question here involved presented or decided, and they are therefore no authority for the rule that a ministerial officer whose material rights would not be affected by the enforcement of a law, cannot declare it unconstitutional and refuse to enforce it.
No useful purpose will be served by citing and quoting from the decisions of other States upon this point, but reference is made to the case of State ex rel. New Orleans Canal & Banking Co. v. State Auditor, 47 La. Ann. 1679, 18 South. Rep. 746, reported in 47 L. R. A. 512, and copiously annotated. We will, however, give one citation from that case. “In .mandamus proceedings against a public officer, involving the performance of official duty; nothing can be inquired into but. the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. After careful investgation of the authorities, we feel fully confirmed in the correctness of the conclusions we arrived at in State ex rel. Nicholls v. Shakespeare, and other cases, to the effect that executive officers of the State government have no authority to decline the performance of purely ministerial duties which are imposed upon, them by a law, on the ground that it contravenes the constitution.. Laws are presumed to be, and must be treated and acted upon by subordinate,.executive functionaries as constitutional and legal, until lueir
Cases can be found on both sides of the question now before us. They are fully and with much care compiled in 12 Corp. Jur. 765. The great weight of the authorities, both in number and persuasiveness, supply the conclusion reached by us.
Sections 6 and 7 of Chapter 8584 not having been judicially declared unconstitutional, the allegation in the return as to its uneonstitutionality is unwarranted, unauthorized and affords no defense to the .allegations of the writ, and the peremptory writ will issue.
Dissenting Opinion
Dissenting. — The decision in this case is, that although a statutory provision be unconstitutional and void, the highest executive officers of the State should e'xecute it until it is declared by the courts to' be invalid; and that the'Governor, Attorney General and State Treasurer cannot question the validity of an enactment in aii
The legislative department enacts a provision which the executive department declines to execute on the ground that it violates a stated provision of the constitution, and the judicial department issues a peremptory command to the highest executive officers of the State to execute the .enactment solemnly . averred by them to be unconstitutional and void, the court declining to determine the validity of the provision at the instance of the Governor, the Attorney General and the State Treasurer, who are the only parties who can challenge the validity of the enactment when its enforcement is sought in the courts. This has not heretofore béen the law in this State.
In Section 4 of the Declaration of Rights of the Florida Constitution, it is provided that “all courts in this State shall be open, so that * * * right and justice shall be administered without sale, denial or delay.”
If the statutory provision sought to be enforced is invalid an assessment made under it would be void and the State would not receive the taxes it is entitled to under the constitution and laws. When the law is to be enforced by the courts, no one except the Governor, the Attorney General and the'State Treasurer, who are the respondents in the action, can aver the invalidity of the enactment sought
The assertion by the relator of the' validity of the enactment does not establish its validity and would not estop others from contesting the constitutionality of the provision if an assessment of property be made under the alleged invalid enactment. The court has the power and it is its duty to adjudicate the question raised by the highest executive officers of the State, who are the respondents in the action, as to the validity of the enactment that involves serious consequences to the State.
The Governor is by the constitution required to “take care that the laws,” not void enactments, “be faithfully executed.” Sec. 6, Art. IV. The Attorney General is “the legal adviser of the Governor, and of each of the officers of the executive department,” Sec. 22, Art. IV; and he is by statute required to “give his’official opinion and legal advice” to the Governor and State executive officers. Sec 87 Rev. Gen. Stats. 1920. The official opinions of the Attorney General, the chief law officer of the State, as to the validity or invalidity of a statute, are the guide for State executive and administrative officers in performing their official duties, until such opinions aré superseded by judicial decisions or opinions. It is therefore appropriate that the Governor and the Attorney General and other executive officers of the State
If the State officers had obeyed the enactment the relator could have asserted the invalidity of the provision -and had a decision of the issue; but it now seems that although the Governor, the Attorney General and State Treasurer under'their oaths of office, and on-their responsibility' as>. executive officers of. the State, considered R
This court has repeatedly held that an officer of the State will not be compelled by mandamus to obey a statute that conflicts with the constitution. State ex rel. Russell v. Barnes, 25 Fla. 75, 5 South. Rep. 698; State ex rel. Russell v. Barnes, 25 Fla. 86, 5 South. Rep. 703; State ex rel. Mitchell v. Bloxham, 26 Fla. 407, 7 South. Rep. 873; State ex rel. Murphy v. Barnes, 24 Fla. 29, 3 South. Rep. 433; State ex rel. Milton v. Dickinson et al., County Commrs., 44 Fla. 623, 33 South. Rep. 514, 60 L. R. A. 539. See also State ex rel. Willie v. Barnes, 22 Fla. 8; State ex rel. Weeks v. Gamble, 13 Fla. 9; McConihe v. State ex rel. McMurray, 17 Fla. 238; Board of Com’rs of Lafayette County v. Hadley, 63 Fla. 90, 59 South. Rep. 14; State ex rel. Battel v. Jennings, 47 Fla. 307, 35 South. Rep. 986; State ex rel. Hubbard v. Holmes, 53 Fla. 226, 44 South. Rep. 179, and Florida eases therein cited; County Commissioners of Lake County v. State, 24 Fla. 263, 4 South. Rep. 795; Holland v. State ex rel. Duval County, 23 Fla. 123, 1 South. Rep. 521; State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 South. Rep. 721; Board of Com’rs of Escambia County v. Board of Pilot Com’rs of Port of Pensacola, 52 Fla. 197, 42 South. Rep. 697; State ex rel. Martin v. County Commissioners, 81 Fla. 271, 87 South. Rep. 917; State ex rel. Luning v. Johnson, 71 Fla. 363, 72 South. Rep. 477; State ex rel. Buford v. Spencer, 81 Fla. 211, 87 South. Rep. 634; State ex rel. v. Shepard, decided August 14, 1922; 36 Fla. 358; 37 Fla. 564.
In Board of Public Instruction for Santa Rosa County v. Croom, 57 Fla. 347, 48 South. Rep. 641, this court.
In County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471, it was held that county commissioners could not challenge the validity of a statute which imposed upon them official duties that were merely ministerial and incidental to the main purposes of the act. See State ex rel. Russell v. Barnes, 25 Fla. 75, text 86, 5 South. Rep. 698, where the Patton case is explained.
The Governor and other State officers as Trustees of the Internal Improvement Fund refused to convey lands claimed by railroad companies under statutory grants, upon the ground that the statutory provisions making the grants were unconstitutional, and this court sustained the contentions. Disston v. Board of Trustees of Internal Improvement Fund of State of Florida, 75 Fla. 653, 79 South. Rep. 295; Wade v. Atlantic Lumber Co., 51 Fla. 628, 41 South. Rep. 72; Peters v. Gilchrist, 222 U. S. 483, 32 Sup. Ct. Rep. 122.
If the State officers had not challenged the validity of the enactments in the cases last above cited, the State would have lost many thousands of acres of land that were illegally granted. In this case if sections 6 and 7 of Chapter 8584 are inoperative, any section taken thereunder would have been futile and assessments made thereunder for the year 1922 would have been invalid; therefore it was the duty of the State officers in observing their oaths of office and in' conserving the interests of the State, primarily to pass upon the validity of the statu-r
It has not heretofore been contended that the Governor and other State officers cannot challenge the constitutional validity of a statutory enactment involving their executive or administrative powers and duties. But the duty to do so has been adjudicated. State ex rel Russell v. Barnes, 25 Fla. 75, text 85, 5 South. Rep. 698. See also Crawford v. Gilchrist, 64 Fla. 41, 59 South. Rep. 963; State ex rel. Willie v. Barnes, 22 Fla. 8; State ex rel. Murphy v. Barnes, 24 Fla. 29, 3 South. Rep. 433; State ex rel. Mitchell v. Bloxham, 26 Fla. 407, 7 South. Rep. 873; State ex rel. Weeks v. Gamble, 13 Fla. 9; State ex rel. Hubbard v. Holmes, 53 Fla. 226, 44 South. Rep. 179, and Florida cases cited therein. See Cooley’s Const. Lim. (7th Ed.) p. 73; State ex rel. Buchanan, 24 W. Va. 362; 6 R. C. L. p. 71; 12 C. J. 698; 8 Cyc. 726, as to when it is the duty of officers “to pass upon a question of constitutional construction,” subject to judicial construction. See also Marbury v. Madison, 1 Cranch (U. S.)
In State ex rel. Russell v. Barnes, 25 Fla. 75, text 85, 5 South. Rep. 698, this court said: “The Constitution and law have imposed upon the Comptroller the duty of auditing the relator’s claim and drawing a warrant for the amount found to be due him. This duty necessarily involved his deciding upon the amount payable to relator as a salary, and he has decided it. If there was any conflict between the. Constitution and statute as to the amount payable, he could not avoid a decision; it was within the official duty imposed. Relator questions the correctness of the decision and applies to us for relief; and the parties have submitted the question for our adjudication. If the Comptroller had gone beyond his official duty or prerogative by considering any question not involved in the performance of his duty, or if he had erred in his judgment as to the amount of salary payable, we should ,say so. "We do not think that he has done either. A consideration of the decision in County Commissioners v. Patton, (24 Fla. 55, 3 South. Rep. 471) will discover that we held that the Commissioners neither had any personal interest or official duty under the statute then under consideration involving in any way the legality of the election in question.” See State ex rel. Hubbard v. Holmes, 53 Fla. 226, text 228, 44 South. Rep. 179, where the Patton ease is commented on.
A peremptory writ of mandamus will not be issued If it cannot be enforced. See State ex rel. Bisbee v. Drew,.
The statute which the'relator in this ease seeks to enforce, prescribes official duties of the respondents who are the Governor, the Attorney General and the Treasurer of the State, and, as said in the above quotation, “If there was any conflict between the constitution and statute,” the respondents “could not avoid a decision; it was within the official duty performed.” See State ex rel. Mitchell v. Bloxham, 26 Fla. 407, 7 South. Rep. 873; Board of Public Instruction for Santa Rosa County v. Croon, 57 Fla 347, 48 South. Rep. 641; Disston v. Board of Trustees of Internal Improvement Fund of State of Florida, 75 Fla. 653, 79 South. Rep. 295; State ex rel. Murphy v. Barnes, 24 Fla. 29, 3 South. Rep. 433; State ex rel. Dickinson, 44 Fla. 623, 33 South. Rep. 514, 60 L. R. A. 539See also State ex rel. University of Utah v. Candland, 36 Utah 406, 104 Pac. Rep. 285, 24 L. R. A. (N. S.) 1260. As to the right of an officer to interpose the unconstitutionality of a statute as a defense to mandamus, see State ex rel. Russell v. Barnes, 25 Fla. 75. text 86, 5 South. Rep. 698; McConihe v. State ex rel. McMurray, 17 Fla. 238; State ex rel. Murphy v. Barnes, 24 Fla. 29, 3 South. Rep. 433; State ex rel. Willie v. Barnes, 22 Fla. 8; State ex rel. Weeks v. Gamble, 13 Fla. 9; State ex rel. Guyton v. Croom, 48 Fla. 176, 37 South. Rep. 303; State ex rel. Kittel v. Jennings, 47 Fla. 307, 35 South Rep. 986; Woodall v. Darst, 71 W. Ya. 350, 77 S. E. Rep. 264, 44 L. R. A. (N. S.) 83; Rhea v. Newman, 153 Ky. 604, 156 S. W. Rep. 154, 44 L. R. A. (N. S.) 989; Wiles v. Williams, 232 Mo. 56, 133 S. W. Rep. 1, 34 L. R. A. (N. S.) 1060; State ex rel. University of Utah v. Candland, 36 Utah 406, 104 Pac. Rep. 285, 140 Am. St. Rep. 834, 24 L. R. A. (N. S.)
Three cases are relied on in the main opinion, viz: State ex rel. New Orleans Canal & Banking Co. v. Heard, 47 La. Ann. 1679, 18 South. Rep. 746; People ex rel. Attorney General v. Salomon, 54 Ill. 39, and County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471, citing Jones v. Black, 48 Ala. 540. The Florida and other eases are not in accord with State ex rel. New Orleans Canal & Banking Co. v. Heard, 47 La. Ann. 1679, 18 South. Rep. 746. In People ex rel. Attorney General v. Salomon, 54 Ill. 39, the proceeding was for contempt in not obeying a peremptory writ of mandámus issued against a purely ministerial officer whose duty was merely ministerial and incidental and who had no responsibility that could be affected by the statute asserted to be unconstitutional; so it is in the class with County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471, and is not authority in this case. State ex rel. Russell v. Barnes, 25 Fla. 75, text 85, 5 South. Rep. 698. See McGann v. People ex rel. Coffeen, 194 Ill. 526, text 549, 62 N. E. Rep. 941. See also Commonwealth v. James, 133 Pa. St. 480, 19 Atl. Rep. 960; Threadgill v. Cross, 26 Okla. 403, 109 Pac. Rep. 558. In Jones v. Black, 48 Ala. 540, the relators who were citizen electors who were “mere volunteers” asserted the unconstitutionality of the statute.
A public official, whose duties are merely of a ministerial nature, and are so subordinate in character that no injury or responsibility can possibly result to him by complying with the terms of a statute the constitutionality of which is questionable, or whose duties are merely ministerial and incidental to the main purposes of the statute, and no violation of duty can be imputed to him by reason .of his obedience to the statute, may not be entitled to raise the question of the unconstitutionality of the statute. See County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South. Rep. 471; People ex rel. State Board of Equalization v. Pitcher, 61 Colo. 149, 156
Under the constitution the Governor is vested with “the supreme executive power of the State;” and the Attorney General and State Treasurer are “administrative officers of the executive department.” Secs. 17 and 20. Art. IV. See also See. 6, Art. IV; State ex rel. Bisbee v. Drew, 17 Fla. 67, 18 R. C. L. 199.
The Governor, State ■ Treasurer and Attorney General are among the highest officers of the executive department of the State government, and their duties are not ministerial. They are by Chapter 8584, Acts of 1921, charged with administrative functions and duties as a State ‘ ‘ Board of Equalizers, ’ ’ which duties are not of a subordinate ministerial character to be performed under the authority or direction of other superior officers, but the duties are executive or administrative in their nature of obviously vast import in the State government involving discretion and responsibility of a high order to be exercised by such State officers on their own responsibility .and judgment under their oaths of office with direct responsibility to the people of the State. The decided eases in this State, as above cited, authorize such officers to set up the unconstitutionality of a statutory provision in defense to a mandamus to enforce the performance of adminr istrative functions under an enactment averred to be unconstitutional. This is necessary to protect the interests of the State. See State ex rel. Hubbard v. Holmes, 53 Fla. 226, 44 South. Rep. 179; State ex rel. Miller v. Leach, 33 N. Dak. 513, 157 N. W. Rep. 492; 12 C. J. 765. The question may be presented by motion to quash or by answer. Woodall v. Darst, 71 W. Va. 350, 77 S. E. Rep. 264. In many cases unless the
Mandamus lies only when there is no other adequate remedy and the relator has a clear legal right to enforce and the respondent has a clear legal duty, not involving discretion, to perform the act or function to be com-, manded by the writ. State ex rel. Ellis v. Atlantic Coast Line R. Co., 53 Fla. 650, 44 South. Rep. 213; McGann v. People ex rel. Coffeen, 194 Ill. 526, 62 N. E. Rep. 941; Throop on Public Officers, sec. 815.
If the statutory provision prescribing the act or function that is here sought, to be enforced manifestly, is or reasonably may be violative of organic law, neither the right of the relator to have the act performed nor the duty -of the respondents to perform the act or function is clear. MeGann v. People ex rel. Coffeen, 194 Ill. 526, text 549, 62 N. E. Rep. 941. The Governor and Attorney -General, under their constitutional oaths of office, should see that the valid statutes of the State are executed. They cannot be required to execute an unconstitutional statute; therefore it is their duty to test the validity of statutes when they consider them invalid. ;. ,,,
If the statutory provision is unconstitutional,, the' voluntary performance' or the judicial enforcement of the-¿re-' scribed, act or function would be unauthorized -if not-illegal. An unconstitutional statutory-provision'is a legislative en'actment'that'is forbidden by the constitution.' It is not a law and the courts will not enforce it. If the eñ-.
Mandamus cannot legally be invoked to enforce the performance of an unauthorized or an illegal act or function. State ex rel. Walker v. Stewart, 49 Fla. 259, 38 South. Rep. 600; State ex rel. Edwards v. County Commissioners of Sumter Co., 22 Fla. 1; State ex rel. Norman v. D ’Alemberte, 30 Fla. 545, 11 South. Rep. 905; McKinnon v. State ex rel. Davis, 70 Fla. 561, 70 South. Rep. 557; McDermott v. Dinnie, 6 N. Dak. 278, 69 N. W. Rep. 294; State ex rel. Bloxham v. Gibbs, 13 Fla. 55. Nor to enforce a doubtful right. Tampa Water Works Co. v. State ex rel. City of Tampa, 77 Fla. 705, 82 South. Rep. 230; McGann v. People ex rel. Coffeen, 194 Ill. 526, text 549, 62 N. E. Rep. 941.
The following quotation indicates that in the Federal Supreme Court the interest must be personal and not official: “The power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist. In any event, it is a purely local question, and seems to have been so treated by this court in Huntington v. Worthen, 120 U. S. 97, 101. Different considerations, however, apply to the jurisdiction of this court, which we have recently held can only be invoked by a party having a personal interest in the litigation. It follows that he cannot sue out a writ of error in behalf of third persone.” Smith v. Indiana, 191 U. S. 138, text 148, 24 Sup. Ct. Rep. 51; Governor of State of Indiana v. Dye, 231 U. S. 250, 34 Sup. Ct. Rep. 92; 18 R. C. L. 113; Braxton County Court v. State of West Virginia ex rel. State Tax Commissioners, 208 U. S. 192, 28 Sup. Ct. Rep. 275.
Dissenting Opinion
dissenting from the order denying a rehearing.
The return to the alternative writ signed by the Governor, the Attorney General and the State Treasurer, in effect avers that the assessment of the railroad property referred to was not .made by the State Comptroller under section 6, Chapter 8584, Acts of 1921, as alleged in the alternative writ, for the reason that said section 6 of Chapter 8584 violates section 16, Art. 3 of the Constitution of Florida, and is therefore void; and it is averred that the assessment was made as required by section 747 Revised General Statutes, 1920, by the State Comptroller,, the Attorney General and the State Treasurer, and that section 7, Chapter 8584, which the writ seeks to enforce, is inoperative because it is applicable only to assessments made pursuant to section 6, Chapter 8584 that respondents consider to be violative of the constitution, leaving section 747 Revised General Statutes the controlling law on the subject. The respondents have not adjudged the statutory provisions to be unconstitutional, but since they consider them unconstitutional, they have acted accordingly and submit the matter to the court for decision.
The court refuses to determine the question presented as to the constitutionality of the statutory provision, and orders a peremptory writ to compel a performance of the function prescribed by section 7, Chapter 8584, upon the theory that it is a mere ministerial duty to be performed
Under the express provisions of the constitution the Governor, the Attorney General and the State Treasurer are not ministerial officers, but are executive officers. Secs. 1, 6, 12, 17, 20, 22, 24, 27, 28, Art. IV Constitution of Florida; Article II Constitution of Florida.
“A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority without • regard to the exercise of his own judgment upon the propriety of the act being done. ’ ’ American Casualty Insurance & Security Co. v. Fyler, 60 Conn. 448, 22 Atl. Rep. 494, 25 Am. St. Rep. 337; Galey v. Board of Com’rs of Montgomery County, 174 Ind. 181, 91 N. E. Rep. 593; 29 Mich. 320.
Tire-powers and duties purported to be conferred upon the Governor, the Attorney General and the State Treasurer by section 7, Chapter 8584, as'to assessments of railroad property are similar to those stated in section 5 of the act to finally decide matters of valuation in equalizing tax assessments “between counties” as to other property in the several 'counties of the State.
Manifestly the duties referred to in Section 7 are not ministerial in their nature, but are governmental, executive or administrative functions involving power and discretional vast importance to the State and to all tax payers of the State as well as to the relator. See Secs. 1, 2 and .3, Art. IX; Sec 16, Art. XVI, of the Florida Constitution. In the execution of their statutory duties and powers,
If executive officers regard a statutory provision prescribing their duties as violative of the constitution, it is their sworn duty to give effect to the constitution. State ex rel. Russell v. Barnes, 25 Fla. 75, 86; Marbury v. Madison, 1 Cranch (U. S.) 137; Bates v. Taylor, 87 Tenn. 319, 11 S. W. Rep. 266, 3 L. R. A. 316.
When the constitutionality of an enactment is duly determined. by the courts, it becomes the duty of all officers to give it due effect. 18 R. C. L. 108. But until it is so determined, executive officers interpret the constitutional and statutory enactments under the advice of the Attorney General in so far as their powers and duties are thereby affected. See Secs. 6 and 22, Art. IV; 12 C. J. 698. An invalid provision in a statute should not be enforced. 70 Fla. 340. A decision as to whether. Sections 6 and 7, Chapter 8584, are constitutionally operative is obviously essential to a proper disposition of this ease. The question is squarely presented by executive officers of the State whose duties are affected by the sections, and a decision is requested by both parties in the interest of orderly governmental procedure of vast importance to the public. The courts “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” Cohens v. Virginia, 6 Wheat. 264, text 404.
If the courts will not determine the constitutionality of a statutory provision when the question is presented by the governor and other executive officers in proceedings brought against _ such officers to enforce the enactment,
Certainly in such a case there is not a clear legal duty to perform and a clear legal right to require performance that may be enforced by mandamus against the Governor, the Attorney General and the Treasurer of the State.
The oaths of office of the executive officers of the State are as binding as are the oaths of office taken by the members of the judiciary.
The pleadings show that by concurring in the valuation put upon the railroad property by the Comptroller, the Attorney General and State Treasurer have already reviewed and approved the assessment in controversy; and the courts have no power to compel the Governor to exercise his judgment in the premises.
“The courts have no power to control the action of the Governor in the discharge of any duty pertaining to his office under the laws of the State. The person of the Governor is subject to the process of the courts only in reference to private acts, and acts not pertaining to executive functions imposed by the Constitution or laws.” State of Florida ex rel. Bisbee, Jr. v. Drew, Governor, 17 Fla. 67.
“The Governor of the State of Florida cannot be-commanded by the courts to perform any act which may be required of him by a law of the State relating to the executive «office, or any duty which he may be required to perform of a political nature, even' though private rights may '.be involved.” State of Florida ex rel. Bisbee, Jr. v. Drew, Governor, 17 Fla. 67, text pages 83 and 84; 12 R. C. L.
The voluntary appearance of the Governor does not authorize the issuance of a peremptory writ of mandamus to compel him to perform a public governmental act-involving executive or administrative power and discretion, even if the writ may in this case properly be issued against the Attorney General and the State Treasurer. State ex rel. Robb v. Stone, 120 Mo. 428, 25 S. W. Rep. 376, 23 L. R. A. 194, text 198; 18 R. C. L. 198 et seq. and notes; 29 Mich. 320.
In this case a peremptory writ is ordered to be issued to command the Governor, Attorney General and State Treasurer to perform an administrative function of a highly discretionary nature, when the court refuses to determine the validity of the statutory provision upon which the writ is predicated, though by the pleadings in. the case the Governor, Attorney General and State Treasurer on their official responsibility aver the enactment to.be violative of a specified provision of the State constitution, to which constitution judicial as well as executive; officers of the State are subject, all having taken an oattn to obey it. The writ in effect will command the Chief' Executive of the State and two officers of the executive department of the State to execute an enactment whether it be valid or void. No authority for the exercise of this power by the courts is adduced.
