State Ex Rel. Kurz v. Lee

360

Per Curiam The appeal brings review an order holding the of a bill allegations complaint being sufficient to show the validity of a local held in option election Polk Florida, County, under the of House provisions Res- Joint olution No. 83 of Legislature of which became a part of the organic upon law of its adoption 6th, 1934, as such at the General Election on November sufficient to' a recount of show the bal- necessity lots cast in that election.

It no would serve to discuss the purpose questions úseful here, presented as the conditions under which this election was held will never probably again. occur

The Order of the Circuit should Judge be affirmed on authority Coleman, Sheriff, State, Race, v. ex rel 201, Fla. al., 159 Sou. 504, Drane, and Wiggins, et ex rel. 106 Fla. 144 Sou. 62.

It is so ordered.

Affirmed. J., C. Terrell, Buford J.,

Whitfield, Davis, J. concur. ).

Davis, —I (concurring think XIX the amendment J. the Constitution reinstated all precedent laws prohibition that related to the liquor question local includ option, ing election statutory over said as a contests elections means of testing their I validity. concur on other points. ex rel. Herman State, Lee, M. Kurz, ac Comptroller. v. J.

163 So. 859.

En Banc.

Opinion Filed October 1935. Denied November 1935. Rehearing P. Guyte Collins, McCord Relator; and LeRoy General, D. Cary Landis, H. Attorney E. Carter and Hutchison, Assistants, Ira A. for Respondent. Tillman, Association;

H. C. for Florida Educational Peters & for State Association of School Board Kemp Members; L. Reeves for Board Public Instruction

G. of Hills- County; borough Committee of Ed- R. Bentley, Lay Continuing

Ed Council; ucational

363 Turnbull, Theo T. Claude Ogilvie, Jennings & Watts and Noble, Fred B. Curiae. Amici

Statement. to the adoption ratification Davis, J.—Prior part the State Constitution of House Resolution Joint 541 543, No. (page Laws, General 1925 Session) pro posing amendment 9 to Section XII Article finances, Constitution of Florida to common school relating this Court had held the impliedly to be without power to appropriate distribute for school purposes any part the general state revenues. Board of In Public struction Croom, Santa Rosa v. 57 County Comptroller, 347, Fla. 48 Sou. 641. Rep. In that Chapter case Acts Florida, Laws of state aid to certain providing county schools was declared unconstitutional. The holding just case cited in Amos approved was and followed Mathews, v. Fla. 1 99 126 (text 114), Rep. page Sou. 331, 347, case, latter until however, which was not decided after the XII amendment to Section been had proposed and ratified.

At Session of the Legislature there intro was duced passed by the Legislature Bill House No. Mr. McCall by of Hamilton This County. bill undertook to for, make an appropriation from, for loans provide the general revenue fund of. the State for the of public aid Session, free (House schools the State 1926 Journal, 1862, 2439, 3857, 1973, 2440, 2442, 2443, 3856, pages 2441, 3902, 4399, 4616). bill was the This vetoed ultimately after the Governor the 1925 Legislature session of had ad journed, (1925 one of the reasons for House being the veto 134, Session, Journal, pages Extraordinary 135) conflicted with the question opinion bill in Court Pubilc Instruction of the case of Board of Santa Rosa 364 of House veto The Governor’s supra. v. Croom,

County Session) was sustained (1925 Bill Regular No. See Extraordinary pages Session. at its Legislature 1214, 1215, Session. Journal, Extraordinary House veto, on April Governor

Forecasting his 1925 Legislature: message following special sent the Department Florida, Executive “State Tallahassee, Fla., 28, 1925. April

“Message “Subject : Education Milam, Speaker, “Honorable A. Y. Representatives. House of Members :

“Gentlemen “There will be introduced in the House and Senate an Resolution proposing amendment to 9 of Joint Article Constitution, XII to the which if agreed to by Legislature approved at the people polls will have the of conferring upon effect Legislature power to increase the fund direct appropriation from the If the child in the Treasury. rural dis- tricts and poorer counties of this State is to enjoy equal educational with more favored advantages child counties, cities wealthier hand generous State cannot be withheld. an longer It is anomalous sit- uation when a can appropriate millions higher education and not One essential com- Cent mon school education. No one would withhold from our learning institutions of funds for their higher necessary support. As of the State Board of Education Chairman Commission, I was and of the to advocate a Budget glad for those splendid liberal institutions which appropriation citizen pride are within the patriotic Common- every conviction, I fixed did this but with the freely, wealth. Lowever, to do justice great that the has come time of the deprived of the will be youth mass who appropriations. in these sharing legislative opportunity with dealing In that to the part my message I education made the statement: following “ sufficient revenue ‘In the smaller and counties poorer had outside of State cannot be operating the schools shall, We there- at counties. aid its full cash value these fore, raising have find means other than the values like ours is not a democracy these counties. Education in a local question.’ State, educational facil

“Florida is but her growing. Edu are behind her material lagging development. ities concern, cation and necessary roads are not a local but good forget We development. fullest should the State’s counties, define none save .boundary and know lines.that ‘Florida, political limit of Florida. those mark Inseparable,’ should our motto matters of One and those that affect the legislation particularly especially — education State. I youth earnestly urge submission amendment the electorate of proposed this State. I can address on no more subject important. you truly,

“Yours W. Governor.” Martin, “John to the Governor’s there was almost message, Pursuant Rep introduced the House of thereafter into immediately Way Resolution No. Mr. resentatives House Joint Session, Journal, page County (House of Duval bright XII 9 of Article an amendment to Section 924), proposing recom carry out the Governor’s of the Constitution to be specifically should the Constitution mendation “conferring upon Legisla purpose amended for 366 power

ture to increase Fund direct County School had been at appropriation Treasury,” from the State the vetoed House tempted unconstitutionally to be done by Bill No. 920 under guise such making appropriation of “loans.”

House Resolution 541 No. pursuant so introduced Joint to the 28, 1925, Governor’s message April was approved by the House Constitutional Amendments Committee with but one change verbiage recommended its that in which it had been introduced Legislature. into the So House Resolution No. as so framed accordance Joint with the recommendation the Governor, submitted was (House Journal, Session, 942, 924, 1925 Regular pages 1712, 1784, 1785, 3494, 3495, 1786, 3132, 3898, 4116; Sen ate-Journal, Session, 2329, 1925 Regular pages 2330, 2362, 2363, 2913, aas constitutional amendment 3143) at voted on the 1926 General Election. At such 1926 election it was ratified the affirmative vote of a majority thereon, electors so voting part of became n Constitutionas of that date.

As appear will by reference to the Legislative Journals, after being once amended in the of Representatives House by a committee amendment (House Session, Journal, 1925 pages 1712, 1713) said House Resolution was finally Joint submitted to the electors in the form in which was rat ified follows:

“House Resolution No. 541. Joint “A Resolution Proposing Amendment Section Joint 9 of Article XII of the Constitution of the State of

Florida, Relating to Education. “Be It Resolved by the State Florida: “That the amendment following XII of Constitution the State of Florida relating Education be and the same is to and hereby agreed shall be submitted to the Electors of the at General of Representatives Election or re- approval jection:

“Section 9. In addition to the tax for provided Sec- tion 8 this Article the Fund School shall consist County of the proportion of the interest of the School Fund State and of the one mill apportioned tax State the county, all capitation taxes collected within all ap- the and the propriations by which shall with all other Legislature County School Funds be apportioned and distributed as bemay provided by by law and shall disbursed the County Board of Public Instruction for and main- support the solely Provided, tenance of public free that such appor- schools. tionment by and distribution shall made law general upon based some to be principle declared of classification determined the Legislature.

“Approved 1925.” June And so it was that submission and ratification of the proposed amendment to 9 Section of Article XII of the Constitution, forth, as above set be- Legislature for came the first time vested with the legislative power to increase the County School Fund by appropriation a direct from the State Treasury. Under Section 4 of Article XII appropriations by the Legislature to Fund the State School (the principal of which required was to be kept inviolate) had from the start been authorized under Constitution of 1885. far

So as can be discerned from the archives and records of the Executive and of Department Legislature since the adoption of the Constitution each Florida Gov- who ernor has had occasion to place interpretation 2 IX Section Article 30 III of Article Constitution, has taken official utterances position those pro- imposed upon Legislature the duties that mandatory, were where of the Constitution visions discharged during had not been adequately such duties Legislature of the making session regular government for the next bi- for conduct ennium, revenue de- making provision raising state expenses current fray correspond- became the thereupon duty that it Chief ing period, Executive in ex- care the laws be “taking faithfully (as IV) ecuted” Article to exercise provided by Section III of power under Section of Article Constitution his call into Session for the Extraordinary into law calcu- purpose of measures passing and enacting requirements lated Sections 2 to effectuate the said adequate IX pro- Article III to make by vision of to of way pay salaries appropriations public, pay expenses officers and the current of State and provide pay revenue the same. for raising sufficient by Call See: for Session of Gov- Extraordinary Legislature ernor Martin 1925 on the die of the adjournment Reg- sine ular Session without a revenue measure or enacting appro- 4521, 4522 bill priation (Pages Representa- House Journal tives, for 1925); Call Governor Carlton Second Extraor- dinary Session of in 1931 to Legislature appropria- enact meet same tion bill sources of Revenue to provide and Sessions, 3 1931 (House Journal, Regular Special page and ; Session) Call of Extraordinary for Second Journal in 1929 to Governor Session Extraordinary Carlton provision and rev- enact bill make appropriation raising of the State Government expenses (Jour- enue to defray Session, Extra Representatives, page of House 1929 nal 1015). in an Advisory Opinion

It held Court by Supreme was

369 1927, contem- that the Constitution Martin to Governor pro- exceed the that state shall not revenues plates expenses for each fiscal year defray law to be raised vided by fiscal period, for the that current expenses IX the of Article Consti- that Section mandatory effect, regular bi- tution, by be observed each shall that Opinion Advisory See ennial session of the Legislature. 967, also Rep. 114 Sou. 850. It was 94 Fla. Governor, appro- that that while opinion observed the Court in depend- made might priations validly provided ent of revenue already future collections upon the appropria- law to purpose be raised for meeting tions, however, for State ex- that such even appropriations, until of rev- would not become available collections penses, payment to warrant enue had been realized sufficient thereon. so made contingent The rule been judicial established decisions State, court highest construing statute provision ascertaining constitutional for the purpose effect, its determining purpose, legal intent it is at permissible look always history constitutional or involved order to statutory provision construction, Amos, its detemine State v. 76 Fla. proper 26, 433; & Ry. 79 Sou. Co. Rep. Tampa Catts, v. 79 Fla. J. 364; Amos, 85 Sou. R H. Co. v. ep. Sheip & Jerome Rep. 599; Liggett Fla. 130 Sou. Louis K. & Co. State, Amos, Rep. 153; 141 Sou. rel. v. Fla. ex Parker, Lee, 40, 151 491. v. 113 Fla. Sou. Rep. It been examine in the permissible likewise held same contemporaneous con spirit purpose and for the same that has been on a placed struction or interpretation pro affected of the officials the State vision Constitution State Government responsible departments 370 it, with the

charged interpreting observing duty in order to construction judicial ascertain what should be followed with such when regard provisions become they controversy brought involved a the courts affecting 771; Rep. Fla. 69 Butler, same. 70 Sou. State v. 101 Fla. Tampa, Rep. Sullivan v. Sou. 211. City So, statement, from the appears foregoing aby contem poraneous and adhered to consistently construction all departments of the State Exec government Legislative, — Judicial, utive IX of Article and Section 30 of Article III of the State Constitution have been always read together evidencing as definite state fiscal policy purpose, and have been regarded imposing inescapable duty constitutional on each regular session the Florida Legislature to ascertain and set general appro forth priation bill what are the current expenses the State required sustain agencies its officials and in well and performing their several oaths of office faithfully (Section XVI, Constitution) set forth and con templated to be carried out in accordance with the State of general system Florida’s of laws relating to the perform ance of divers functions, acts as state and make in such general appropriation measure adequate appropriations of money to enable the state’s laws to be executed by the af fected officials and who agencies become thereby entitled to employ procure services individuals and materials on the strength made, of the appropriations so with the right to expect that the so appropriation made will be paid full to discharge obligation for, contracted out revenue provisions IX, which by Section of Article supra, the Leg islature is sufficient mandatorily pass provisions directed of law to raise affected biennium for each fiscal during and which it until year, presuméd to have done there has been a clear to showing the contrary. hand,

On the other the historical Amended inception of 9 of XII Section Article of the Constitution relating appropriations money county school funds thereto, several aid counties as state and the construction of it that has been both before and consistently observed electors, after its ratification has been and Constitution, said amended s'ection even when read in connection with 1 Article XII of the Section Con stitution, no on imposes mandatory duty Legislature provide all to the appropriations county direct at funds, but simply Legislature “power” confers do so that it did not to the amendment. In possess prior short, XII, the effect of 9 of amended Section Article has been construed as contemporaneously enabling, but not to malee direct requiring, Legislature appro priations within its resources to the school funds of the several in like manner as counties was enabled, XII but not under Section of Article required, Fund Constitution to School supplement (the only counties) interest on which went to the by making from time time thereto. direct

In both XII Article and amended Section XII, 9 of Article power given Legislature to appro priate to either the State money School Fund or to the School County direct, Fund is implied, and not since the power exists solely because of fact that “appropriations by the State” have been listed the constituent elements of the several funds as intended be a being part of same under the constitutional definition that has been made of such funds.

Thus, 9 of XII insofar as' Section of the

372

Constitution has been so amended to confer definitely as power on the make an implied Legislature to appropria tion of state funds raised for state what has purposes always been heretofore historically legally considered a purely county purpose, County viz.: school fund purpose 392, (State, ex 40 24 Bous, L’Engle, rel. v. Fla. Rep. Sou. 539) that section in amended form its constitutes distinct in exception to the constitutional rule stated Amos v. Mathews, 1, 308, 99 136 Rep. Fla. Sou. effect that ‘‘our Constitution that an contemplates' state exclusively taxation; purpose state an accomplished by must ex * * * clusively county taxation. purpose by county . Specific constitutional exceptions “state to the purpose, county purpose” doctrine taxation are be found in Section IX Article which permits intangible taxation to be “apportioned Legislature” for by the either or state IX purposes; Section Article which per mits inheritance and taxes estate to be appropriated to any “county, municipal or educational as purpose” the Leg fit,” islature see may and in Section 13 of Article IX which permits motor vehicle license (tag) taxes be levied for such purpose (including county school purposes) as the “Legislature law, may, by provide,” excise taxation and ad taxation, valorem property except modified as above Stated, remain within “state purpose, county purpose” case, rule of the Amos v. Mathews See also the supra. XII, mill tax special one under Section Article Consti tution. of Chapter

The so-called “parity” provisions 1935, if as contended for Acts construed some the counsel curiae in this case on appearing amicus be those provisions, represents half of the beneficiaries of history legislative attempt whereby first Florida’s all Legislature practical intents and purposes, effect, substantial appropriated to the School moneys County Fund to from other realized constitutional state appro III, priations (under made Section 30 of already Const.) They represent attempt by aup safeguard against possible set failure of some of the revenues from doubtful anticipated tax measures passed by it, which if same may fail whole or in part, render the of the appropriation school revenues under Chapter supra, subject amount, to a material diminution in unles's diminution, in order to offset the general state appropria tions made the general appropriation (Chapter bill 1935) Acts and other state laws appropriation passed to on the carry necessary functions of the state government can be likewise constitutionally diminished proportionately in order to release additional for the moneys county school fund appropriation in amount equal proportionate diminution of appropriations made to defray current expenses of the state.

aSo fundamental in the proposition involved determina tion litigation whether or any express, or necessarily implied, constitutional power Legislature to for “provide the liberal maintenance” as.a schools, county systems public free by means of the statutory scheme of appropriations to County School Fund under Section 9 of Article XII amended in excess of revenues to be reasonably anticipated, and then setting a for up statutory plan recouping deficits its revenue for their expectations by providing deduction from consti already tutional for duly made the current state, of a means deduction expense device. can the Legislature, Stated Florida differently, by deducting device simple simultaneously appropriat fund, lawful claim ing part every the State work materials furnished in against done or Act upon reliance as an general appropriation State’s same, in effect thereby authorization for in full of payment impose fluctuating and collect an undeterminate amount on lawful obligations tax the face of the State’s value creditors, retaining current at the time to itself its same it has the full value of consideration received? is an original in mandamus proceeding Davis, J. This relator, Kurz, brought by the Herman a teacher in the Women, Florida State College seeking peremptory writ from respondent, Lee, this Court to coerce the M. J. Comptroller the State of Florida draw his warrant Treasurer him to to relator directing pay out of the General Revenue Fund in Treasury, $225.00, sum the 1935 Ap with General conformity Act propriation (Chapter 1935). object Acts The have to relator proceedings paid approved for his as fixed requisition already salary earned State Board of and law provided by Control to -be disbursed approval relator on the Board Controls’ set forth as L., S., in Sections 778-779 C. G. 616-617 R. G. as amended 11857, 1927. by Chapter Acts sole The of the defense to the Comptroller relief sought while is that admittedly relator been lawfully employed by the Board of Control in the manner pursuant and statute, to authority provided by and has and duly actually the professional rendered which service for his salary, as represented by requisition, his is due to be paid to him out of the General Fund Revenue of the State as provided by law, that nevertheless the Comptroller precluded warrant relator drawing any pay state salary so himby by reason of the fact that earned the 1935 Session

375 appro of the after enacted its Legislature, having general 16772, did, (Chapter supra), subsequent bill priation Act to make certain undertaking appropriations counties, free school in the several so purposes expressly limit, and restrict its statute general appropriation modify as impose upon the respondent Comptroller duty time he withholding relator’s until such salary payment extent, should if relator’s be able determine to what any, should in the compensation proportion be diminished the common to be dimin appropriation have might ished insuf the current fiscal on account of during year, ficient in the both pay funds classes Treasury to appropriations in full.

As authority Comptroller’s refusal to with comply him, of the commands alternative writ directed he cites and refers 17247, to the provision Chapter Acts 1935, Florida, thereof, Laws of 5 Section particularly avers his return as follows: For

“(5) return to 5 of the alternative Paragraph writ mandamus, respondent admits would that he have ample funds in the General Revenue Fund of the State of Florida appropriated by Legislature by Chapter Acts of which with pay salary writ, relator as set out in the but for the fact alternative that the at its session 1935 enacted Legislature Chapter Act appropriation placed said carried in said Act on a with parity equal dignity all other made

State of Florida of certain prior except ap years, said Section from such propriations exempt listed in is uncertain respondent that the parity, furthermore, under said appropriation Chapter as to the amount of the impair 17247. such will the General appropriation That Fund of the State an extent that he Revenue to such would not have with which to relator’s requisition. funds ample pay For further return this

“(6) Respondent respectfully the Court that he with complied shows unto has not mandamus; command of the alternative writ of and cannot following do so for the reasons: in doubt as his “(a) Respondent legal this duty because of as to the inter- respect uncertainty proper and construction to be Section 5 pretation placed upon Florida, 1935, 17247, Acts of Chapter when Laws 16772, Chapter read in Acts of connection with 1935. 17247, Chapter Until and “(b) Chapter Acts of 1935, the Court with particular are construed relation Chapter 5 of 17247 on Chapter to the effect of Section not cannot this does know and know 16772, respondent respect to the matter com duties are in legal what his alternative writ of mandamus. manded by 5 of Chapter construes Section Until the Court “(c) upon effect Chapter reference its particular with know and cannot does not know Respondent respect duties are in administration of legal what his 16772, Acts of by Chapter funds appropriated and of the State and for employees of officers salaries and branches Departments expenses current operating employees and all officers government of the State branches of departments and all of the State application excepted government 17247. Chapter Court as to the construction That without “(d) and what of the State employees officers and which just government, branches of the departments funds, parity equal dignity affected are what

377 5 17247, 1935, Section of provision Chapter Acts of this know Respondent not and cannot know does what his duties legal respect are with 16772 administering Chapter 17247, Chapter except toas the salaries of officers and/or and employees the State td and as current operating expens'es departments and branches of the State gov- ernment specifically excepted from the application of the parity equal as contained in dignity provision Section 17247, 5 of 1935. Chapter Acts of “(e) The of this duty respondent in respect to adminis funds tering the appropriated by Chapter 16772 for salaries of officers and employees of the State and for current operating expenses of the departments’ and branches of government, which are not from excepted the ap plication parity equal provision of dignity Sec 5 17247, tion of Chapter uncertain and as to which this respondent is in great doubt reason of the fact that those among excepted parity equal dignity provision of 5 Section Chapter 17247 are both constitu tional and statutory State officers and State employees, whose 15859, salaries fixed by Chapter Florida, are Laws of Acts of 1935.

“(f) This respondent is further in doubt as to his duty complying with command of the alternative writ of mandamus because the apparent conflict between the parity equal provision dignity 5 Section of Chapter 1935, 17247, Acts of annd the Opinion of Advisory 14, Court the Governor April 114 Fla. 154 Court, So. in which the construing the provisions of Chapter which fixes the salaries of the State officers and State held employees, as follows: “ ‘The restrictions of the Constitution found IX the of Article effect that no shall money be drawn except pursuauce Treasury made law must in connection with the by be construed provision of Section 3 Article XVI to the cogent equally effect that officer his every salary shall entitled to receive ” his own monthly upon requisition.’ portion opinion

“The of the Court’s seems to this quoted respondent mean and State employees that State officers are 15859 Chapter whose salaries fixed are entitled to their irrespective of other monthly, provision salaries therefor, of law while making appopriation on other hand the 5 parity equal, dignity provision 17247 Chapter makes the payment of salaries all State officers and excepted from the employees 17247, 5 provisions Chapter of Section contingent upon of law not contained in provisions either Chapter Acts of of 1935. Chapter 16772, Acts “(g) respondent This doubt as legal his duty respect to obeying the command of alternative writ mandamus, because of the fact that he has been advised by attorney for beneficiaries under Chapter equal parity dignity provision Section 5 of said Chapter that the parity Chapter clause of 17247 puts the appropriation made in said Act on with all parity appropriations made Legislatures Florida with exception of the appropriations excepted in expressly Bill, clause, said and that the All appropriations Leg islature of 1935 and prior years,’ includes six cent tax gasoline funds. That the attorney for said beneficiaries under Chapter has put this respondent notice that his clients will hold respondent responsible any losses which may come to them by reason of the misinterpretation of this clause of Chapter said 17247. Such advice and warning is illustrated letter August 17, 1935, dated ad- Lee, to the M. Comptroller, dressed Honorable Talla- J. Tillman, hassee, H. Florida, signed C. follows: “ ‘Sutton, Tillman & Reeves “ ‘attorneys at law ' “ ‘1201-1211 Wallace Building S.

Tampa, Florida “ 17th, ‘August 1935. “ Lee, ‘Hon. M. Comptroller, J. “ ‘Tallahassee, Florida. “ ‘Dear Colonel Lee:

“ ‘We have been retained by Florida Education Asso- ciation, composed which is of the of the teachers State Florida for the they purpose seeing get the full of the benefit clause contained in ‘parity’ Senate Bill No. 370, passed the recent by session of Legislature. “ ‘There no in question mind my that this Clause the Bill puts that appropriation on a with parity all appro priations made Florida, the Legislature of with ex ception of the appropriations excepted in the expressly bill. Representing the teachers and, despite the I fact that under stand the General Attorney view, holds a different I want to put on you notice that my clients will hold you respon sible for any which losses come to may them by reason of misinterpretation a of this Clause. as soon as you Just have determined a upon definite how will ruling you as to apply this I “parity” clause will appreciate copy your opinion. The would Legislature not have used the term “all Legislature and prior years” unless it intended that appropriation this' should with parity what designated.

“‘However, to make de- yours the responsibility cision, possible bear mind you and I trust will make a mistake. you to the teachers if loss “ ‘Respectfully yours, “ H. C. “‘(Signed) ‘hct-d Tillman/” hand, has advised by been this respondent

“On other and employees State officers attorneys representing provision equal dignity and parity from excepted not and 17247, equal that said parity 5 of Chapter void; unconstitutional of said Act is provision dignity em- officers and State those' State upon no effect equal dignity parity excepted ployees 17247,-whose are salaries of Chapter of Section provision appro- which Acts of by Chapter fixed of 1935. Acts Chapter priations made “(7) allegations reason of 6 and By paragraph sub- (a) (g) return, respond- thereof of this this paragraphs ent cannot with to the or himself com- safety either with alternative writ mandamus ply the command herein until his duties to matters herein shown respect Court, which so de- are defined duties as clearly then respondent will fined Court cheerfully and in to the of his good performed conscience best ability and in with compliance given by the instructions the Court in herein referred to.” construing provisions of law

The of the meet relator’s demand Comptroller refusal to because of return be unten- facts averred in his would able for no others: following reasons if there were assumes,

(a) alleging The without it Comptroller’s return so, provide in fact to to be has failed Legislature that meet all revenues adequate means for sufficient raising at made, outstanding, it left of the or appropriations return further session. The as close of its regular it is hypothetical that deficiency, because of such sumes decline to relator for the Comptroller pay now necessary under a contract in full the earned he lawfully salary and performed authorized State statute employment by law, state the fact that according notwithstanding revenue of insufficient funds in the general contingency re discharge in to meet both funds Treasury the State the County lator’s claim and School Fund appropriation oc Chapter supra, definitely has not yet made Indeed, appears curred. for aught contrary return, such de any allegation respondent’s contingent if are never occur fact available resources ficiency may therefore, obvious, So conservatively marshalled. it is should there be at all times in the enough money demands General Revenue against all Treasury satisfy Fund, inferiority, parity, superior suggested questions Rev the State General ity dignity appropriations from sese, enue that is as between for Fund inter State, and expens'es appropria salaries and current of the under amended Section tions to School Fund County XII, 9 of academic in character. become wholly hand, On (b) the other if it be assumed as that the true did, fact, of 1935 intend to defeat perform- ance of the mandatory constitutional that was cast duty Article IX upon of the State Constitution “to provide raising revenues defray sufficient current for each fiscal expenses’ thereby year,” to create a apparently purposing by Chapter 17247, supra, in the fund the state deficiency general through revenue attempted withdrawal it of the amount of special appropriation' provided Chapter said in lieu of raising by adequate taxation addi- supra, funds county tional to the school to pay revenues sufficient intended to be appor several amounts counties the in au to them accordance with the tioned and distributed XII of Article to appro Amended Section 9 thority priate state aid a school county pur funds as an purely situation, pose, purpose it is evident such a the state 16772, Sal “for the supra, appropriations by Chapter made aries of current public expenses officers and other State” as contemplated by Section 30 of Article III of .the Constitution, must, in accordance with the plain intent the constitutional separation scheme of of the sources finances, state funds' and county given precedence out of payment available funds in the state treasury fund, the credit of the general revenue where the moneys on hand are known definitely inadequate to meet the authorized “for made duly salaries officers other current of the expenses state” should the school fund county appropriation under Chapter 17247, supra, be at the same paid out of the general time revenue on hand in funds the State Treasury.

Chapter Acts of which originated in the Bill Senate terms, No. inis express title, disclosed its an Act making appropriation of state funds' to increase the county school fund and regu expenditures lating of such fund order to effectuate the purpose of the Legislature to each assist in the providing for minimum of eight free months schools in accordance with requirements of the state law subject. appears by As Act, appropriation expressly stated to be an appropriation “from 'General Fund” in sum equivalent Revenue instruction in the existing each unit $800.00

383 Florida preceding scholastic during immediately year, less certain credits for. specifically provided 5

Section of the Act that “this” providing appropriation (meaning the appropriation made by Senate Bill No. 370) shall be on a parity equal all dignity with other appro priations made by the Florida 1935, for or with prior years, certain exceptions amounts appropriated general Act, appropriation necessarily to such reference other appropriations as are required by their to be terms drawn out of the general revenue fund of the If state. this is' not then the effect of so, the Act is broader subject than the expressed its title provision go down in must its as a violation entirety Section Constitution, of Article III of the if no reason, other since no notice whatsoever an attempted in the revolutionary change state, whole fiscal of the policy construction, such as would such a follow is respect indicated the title of said Senate Bill No. 370. 4 of Article IX of the Constitution provides

“no shall be money” drawn from the except in Treasury pursuance It appropriations made law.” is therefore that for necess'ary there shall be stat every appropriation utory or contained in the authority, authority Constitution itself, for the withdrawal public of the funds raised state 520, purposes. 114 Fla. Advisory Opinion to Governor 154. Rep. Sou. An appropriation money apart officially, the setting special out of revenue for a use or public purpose, manner the government such that the executive officers' of that money, will have to withdraw and use authority State, more, and for other. ex object, no for that no rel. Co., Moore, 50 Neb. 69 N. W. Beet-Sugar v. Norfolk Allen, 83 Fla. 538; Rep. 61 Am. St. State v. Rep. a constitutional object 104. The Rep. 91 Sou. law as made by an appropriation requiring provision Treasury money withdraw authority to already funds expenditure prevent therein, pro- from the sources Treasury, potentially by it, given the public vided to raise without consent pro- Such a Acts. legislative in formal representaives their the Con- where (except the Legislature vision secures to power the exclusive the contrary) stitution controls to funds how, the public for what purpose when and deciding Lainhart government. on carrying shall be applied 47. Rep. v. 73 Fla. 75 Sou. Catts, There a pronounced distinction between the appro aside, priation, or the sum of for a setting money par a ticular and the actual thing, disbursement funds meet to of such an object appropriation. Presumably, Leg an islature does not undertake make appropriation to funds any not or in hand. This is s'o actually potentially since the of an making appropriation without having pro it, vided revenues from some source to meet or without to the accrual any right anticipate otherwise of funds in enable the Treasury appropriation discharged by to to be an actual disbursement of funds when it due be paid, to be would the creation an State debt illegal which would constitute a current inasmuch as expense state would have be provided subsequent revenue legis Governor, lation.- 94 Fla. Opinion Advisory An the latter character Sou. 50. Rep. appropriation a fund to be and there appropriated would fail for want of void, authorized contem appropriation be since every fore revenues already the actual or existence of potential plates it to paid. law to be raised enable be provided made the Legislature mere are appropriations Many actual without an dis any necessity occurring making thereto.* An pursuant appropriation, bursement of funds being object to meet an merely setting apart money it, designed paid for out of which never may but actually revenues paid, necessarily contemplates paid may in the to enable it to be be mar accruing Treasury shalled other cog and disbursed for the some discharge nate of which shall appropriation, object require actual disbursement of it. moneys discharge

Insofar, therefore, supra, of Chapter increase the provides “appropriation” such school funds shall be and of parity, equal dignity as an made appropriation, with all other enumerated), therein it is Legislature (except items would follow simply legal of a conclusion that statement Act, language least specific event absent the at Treasury, poten so as the funds are in the State long rea certain therein from revenue sources to tially accrue terms of to sufficient to sonably anticipated, meet appropria 1935 general as as the Chapter supra, well out of which are 16772), payable tion Act both (Chapter of the revenue fund. general Chap said Section 5 of Legislature

But insofar as a in diminution may accomplish ter 17247 have intended to the Con required to raised provided amounts public the salaries of to pay stitution to be appropriated state pursuant of the expenses officers and other current III 2 IX 30 of Article and Section to Section Constitution, prac to subordinate thereby so as of the of the State current expenses tice the actual payment appropriation as example emergency such is made relief *For only fires, Chapter 13630, take effect case Acts to floods, disasters. and other hurricanes 386 from the constitutional requirement of their payment, full

to of a pro that mere rata same payment percentage as the state’s contribution to the county school fund might have be paid pro to rata because of insufficient funds realized in the revenue general fund, provision said of Section becomes a clear violation of Section Article IX Constitution, of Article III of the since both of these impose sections mandatory constitutional duties on raise and appropriate moneys sufficient defray current expenses of the author full ized to be incurred by the state’s officials.

This is not to that say the Legislature without consti tutional power reduce, to substantially or even to abolish its optional office, any state institution or that agency have been may created statute and pro vided to a be carried on as state activity state purpose. Neither is this' that the say state Legislature may not by an appropriate state conserve statute its financial resources by appropriately amending provision of law been it, enacted by fixing or providing stip ulated compensation be paid state officers or employees expenditures authorizing to be made on the part of the same.

But however, to say, long so the general system of statutory laws of the state up, leaves set and re- quired by such laws to be operated as a part the state’s governmental and institutional system, divers and sundry offices, employments and institutions, which are not only given legal function authority sovereign’s creatures, but are required law to be carried by on by the responsible officers in placed charge thereof pursuant to an oath of officeunder Section of Article III of the Con- stitution to well and faithfully perform the duties of their positions in offices and the State’s executing by carry laws ing duly activities, state designated the course of the execution of which are they authorized law incur by to certain obligations as expenses state to be paid due course of appropriations out made by Legislature to pay the same, and against revenues provided law to be by raised by taxation to them state, as current pay expenses of the the Legislature is without constitutional authority make available actual for disbursement permissive leg islative contribution of the general out revenue fund to the fund, county school even though appropriation for the latter purpose is authorized constitutionally Section 9 by Constitution, Article XII of the until first pro it has vided for revenues to actually raising pay sufficient full fixed lawfully salaries of officers and the legally state, established of the expenses current is inescapably required IX by of Article Section 30 by Article III of the Constitution.

Thus abolish the may unquestionably State suspend Board operation of Control and of all required By institutions law to maintained it. by so relieve the doing, may thereby Legisla- State its ture hereafter duty same its providing likewise, expenses. current It budget of State may authority, same abolish the State Board of Adminis- tration transfer back to the counties several of the State ad valorem tax duty raising county pay revenues obligations which the State Board classes of Admin- required istration is regularly law and system- administer. And means it atically release may fund, appropriation other legislative appropriation, lawful object all reve- such that are board as a nues now going agency. the United The likewise surrender to Legislature may arms Department equipment, all the military States War the munitions, gov- it has from Federal and which received Clause pursuant Congress and ernment the Acts United I, of the Constitution of the States, Federal relinquish appropria- and incidentally it as granted general tions has been government its Federal organizing, disciplining aid toward arming token, the same it convert its may National Guard. By force into a State militia simple composed entirely military bear right citizen soldiers whose keep household arms Amendment to as such is Second guaranteed by release, States, the Constitution of United thereby be de- appropriated purpose may fund, all proper, common school including as cide provided amounts of now expended revenue pay- expenses required paid to be ment of State military the State’s part bargain of its toward with keeping government United States National Guard. concerning pass It further and law even go disbanding may as the State Depart- Commission well as Road Railroad ment, the highways so as to turn over of the use of others, to the indiscriminate use of motor carriers and expending save for State pur- the necessity thereby the large ap- amounts poses any money customarily for these bodies in order that agencies, propriated conserved diverted to be may the revenues so used purpose some other which Legislature deems more enlarged as an contribution worthy, such fund. instances, the abolition But each of affected such relieve of its office or would responsibility agency governmental part State’s system. functioning And thereby personnel affected would be advised date the legislative effective Act that no could they longer look State to discharge to further financial obligations to, or by, incurred them.

However, so its long general sys- as erects, maintained, tem of laws State and to be requires State of Control a Board as State agency, duty with imposed law on it operate to certain institutions higher learning, and so it charges as its long public officials with on the State duty serving Board of Administration $50,000.00 a making and and 12, filing (Section bond Chap- 14486, ter Acts each 1929) for the privilege of doing, so and as for their performance security of duty, so and State receives long as and uses military be- equipment to the longing United States and to it furnished under the law, with the obligation that it shall be safeguarded and kept the personnel paid and looking pursuant after to the compact State’s with the government Federal in that behalf, so as the and long enlisted officers and men of said National are required Guard under compulsion fine and imprisonment to respond to a call of to the duty hazard of their lives and under limbs a law providing shall they paid be certain compensation for so doing, and so as long require statutes the Railroad Commission of the State the State quasi-judicial hearings and Depart- hold Road ment administer State’s provide laws highways under removed from office penalty being the Gov- in office neglect ernor if laws are duty not faith- them, the Legislature is executed by without fully consti- authority, so tutional as of Article IX long remain a part Constitution, Section 30 Article III agencies refuse to treat State these of like others character, parts government, the current ex- for, are required appropriated of which

penses sufficient current expenses, revenues raised their defray in order that to function in they accordance may able laws. with existing L’Engle, 40 v. Fla. the case of State with

Beginning primary Rep. object 24 Sou. decided reve- free schools and raising the county operating regarded therefor has been lawby nues Thus the dis- purpose. not a purpose primary the financ- between consistently preserved tinction been free the system public the of schools and of ing county general government. to finance the of revenues raising provided free for system public uniform schools The Constitution is Legislature under administered by throughout counties the State not as a State respective by school function the use of function but county school the Constitution es- required funds to be county specific, in each revenue tablished sources of county Constitution, in the such dis- enumerated funds to be cally Instruction County bursed Board solely Public and maintenance of free schools. support in the So, pre- been out Statement which pointed as has school and the State’s system cedes opinion, county this same, in the participate except right financing the State school fund under through appropriations interest contemplated Article XII which is (the to the several have been com- apportioned to be counties) under the separate Constitution of pletely absolutely government The two functions of have remained 1885. divorced from each other since absolutely completely in 1885 until the Amend- our Constitution adoption at Article XII ratified the 1926 was to Section ment pointed also out in And, been the State- election. opinion, ment has been preceding continuous consistent construction of XII Constitution departments its all the State entirety by government that, except to the modified extent Amended Section 9 XII, of Article the Constitution of this per- does the direct appropriation mit of State revenues for purpose, county whether school county purpose or not. Mathews, See v. 99 Fla. 308, 331, Amos 126 Sou. Rep. 347.

The Legislature required, though is not it is au- impliedly thorized, to make appropriations to supplement county funds; school statutory Constitution not make does part to the “the fund a expenses State for each fiscal year.”

The Constitution commands that Legis “the expressly lature shall provide for sufficient to revenue raising defray of the State for each expenses fiscal con year,” and templates if appropriations are made statutory purposes than authorized other and ex State functions penses, the Legislature provide shall for raising revenue sufficient to meet such appropriations in addition to the revenues commanded the Constitution to be provided for, “sufficient expenses to the the defray of State for each fiscal year”; which excludes legislative necessarily authority to raised to subordinate revenues the defray expenses of the State for each fiscal to year, appropriations permissive made for than other State functions expenses.”* or State 9, XII,

Amended Article provides that: “In addition to for tax in Section 8 provided the Legislature’s *For the first construction of amended Section 9 of XII, Constitution, 1926, after ratified in was see terms Chapter 12012, 1927, Acts first which a State created fund to paid public be to the free schools of the counties. propor- Article, shall consist school fund the county the one and of the Fund State School tion of the interest county, capitations to the all tax apportioned mill State by all the county appropriations within collected taxes other School County the which shall with all Legislature be apportioned provided distributed Funds be as may the County shall Board of be disbursed by lawby the Instruction and maintenance support Public for solely free schools.” This section the school organic amended makes county Fund, the the tax source of School levy primary County contemplate that “appropriations Legis- does not the lature” shall made the and dominant source primary Fund, purported School done by the as is County 17247, Acts of 1935. Prior to Chapter Sections and of County legislative appropriations amended Section the Constitution, but permitted School not Fund were authorizes, section, amended quoted organic appropriations not to be made require, it does though designated the other sources supplement Legislature Fund. The Constitution does School County part expenses school of “the county make fund the Legislature for fiscal year,” require each specifically provide revenue to supplement raising Fund, therefore School County enumerated sources IX, of Section Article “the organic command revenue sufficient to Legislature provide shall raising can- expenses year” each fiscal State for defray permissive not be given subordinated to authority XII, 9, Article make amended Section “in to the School addition Fund Couñty other designated the-tax for in Section 8” and provided fund. The Constitution con- sources of Legislature” that when the templates “appropriations by sources of School supplement are to the the County made Fund, revenue Legislature the shall provide raising all in addition to the appropriations, to meet such sufficient expenses to the the State for sufficient defray “revenue each required fiscal which Section mandatorily by are year” IX, to be raised. Article the of Amended Section 9 of despite adoption

So XII, the of public uniform free schools which supra, system 1 Article to required the XII is maintain still provide spe- for and and county liberally public tax school district free schools which system cial are not operate to the ex- local entitled to only officers in power right clusion the State to take that front of any them, required by Constitution itself but are expressly in pursuant provisions operate establishing law school and district county system county each free schools. operation case, there is pleadings this shown Under nothing Comptroller refusing withholding justify relator the amount of claimed him which salary pay and due him under the facts owing shown be law Neither there is ob- appear of this case. does Comptroller such calculations so making stacle to available accrue State revenues they marshalling that he to comply will enabled General Revenue Fund general mandate in the constitutional carried with out at Act of the same time out appropriation pay altogether, special appropriation if part, be made Chapter 17247 to school fund intended by Revenue Funds the State for the out General counties. common fund of several benefit of the presumed Comp- Court It must 394 that

trailer the for Legislature ample raising has laid taxes revenues sufficient to all the that it has pay moneys of undertaken to the both appropriate Acts above referred to as an aggregate appropriation. considered in the Only of event to some actual the revenues meet required deficit the items General Bill Appropriation the in preference to the made appropriation Chapter or in the supra, event of threatened some deficit immediate imminent so and to amount to the same the thing, is author- Comptroller to ized withhold or refuse to the items of out pay appro- priation made under so, either of those Acts. This be- an a appropriation cause constitutes to mere authority Treasurer State to warrants pay Comptroller may on draw the Treasury. out, we pointed attempt Legislature

As have any payment diminish a aof created obli- constitutionally gation of order to make available funds for a permissive merely purpose vio- would lation of Section of Article IX and of Ar- Constitution, ticle III Chapter intendment provision or Acts purporting law have effect, would, viewed, so be unenforceable and void on the binding Comptroller. consequently Every appropriation of the Legislature pur- for a State set pose, general forth in appropriation passed Act to Section 30 according of Article III of Constitution, creates of law in the authority official department to or whom for which such appropriation made, an obligation incur part State’s within made, the terms of appropriation entitles those who render services or furnish materials State thereunder paid to be for services rendered or the materials full furnished. are in full payable And SO' claims the pay- specific ment sums under general provisions of money paid sums requiring law such providing out person general entitled revenues of State, “current expenses compre term of State” as hends or claim enforceable mandamus demand by the State’s against general revenue reason a fund of by therefor, Act legislative appropriation general special. of contemplated IX, This Section Article of clearly the Constitution.

Therefore, when the State authorized law Kurz, Board Professor in employ of Control to relator case, to render a professional services State institu- to been operated tion has to a part lawfully up set be system, the State’s institutional the contract of employ- law, ment so made with relator under and con- authority a templating for services limits payment rendered within the appropriated him under the pay general ap- funds to Act, propriation on relator contractual conferred vested right to receive from Florida’s treasury sum of which Act money general appropriation required to apart be be used for purpose discharging set to follows, to him obligation State’s when it fell due. It then, that scheme for diminution any statutory ap- made General Act propriation pay to Appropriation for the service he relator under a has rendered already him in full the amount contract for which pay valid he serve, because the agreed merely appropriation secondary school fund under amended Section 9 of county Article XII be made to be in paid full may unavailable ^if full, relator paid should than amounts more nothing the indirect due appropriation process without taking law, indeterminate percentage of relator’s earned in order to correct Legislature’s salary deficiency fund,

intended beneficence to the for which relator inis no deficiency responsible. wise Courts required are asserted adjudicate legal rights to law their according considered with refer- judgment thereto, not in capitulation ence to their desires or sense of emotion, nor may appear expedient the partic- ular occasion. And with finance and taxation dealing passed measures 'Legislature, the courts are impelled to look to the substance a legislative scheme its prac- effect, than operation tical rather to the mere form in been which contrived and enacted. DeLand City v. Florida Co., Public Service 119 Fla. Rep. Sou. 735 (2nd headnote). the substance than form of the

Viewing legis- rather involved, lative scheme it is obvious that in prac- here its effect the Legislature tical has tax attempted to indirectly take (or service, from) who has every performed claimant materials to the State on strength furnished of promise to in implied State’s therefor in its pay as full Act, General Appropriation whatever of the amount he has become entitled to receive from the for his services so rendered or materials furnished that the State disburse- ment find to exact officials from him may necessary aas earned, deduction from the amount he in order has make to a for deficit in avails from up other taxation revenues an- ticipated but to be collected of failing in realization accordance expectations. with its frustrated A direct income tax is (which prohibited Section II of Article IX of the at the Constitution) if levied discretion in an Comptroller indeterminate of amount on every on value the face salary every contract material with performed, the State after it been has would no lead to result, insofar as its practical different effects the preju- concerned, than the enforcement diced is party in a manner Chapter 17247 practically operating as contended for. To the same herein accomplish thing a is of such scheme analyze practical workings merely at inherent the statute to establish once its should invalidity been urged mean has herein so what construed some in interest. argument parties said, it to be In connection what been is just with has observed, neither also, that the scheme question statutory determination nor for advance contemplates provides done what, claim work any, particular if amount furnished, it may after done or or materials furnished have to in the course of administration be reduced order to out carry law officers disbursing State’s The satisfaction. plan statute’s diminution rata pro allowed, each must nec- pro payment amount of rata to be plan being to day, fluctuate under such from day essarily it the active condition always upon financial dependent being. the State time Treasury op- for may contended plan Thus construed statutory take contractor compensation every without erate ton one stipulated per furnish at a hundred price who may Control, the value of coal State Board of tons statute cer- furnished. would tons forty This nec- event that about it should found bring tainly the “parity” in order out of pay- carry do essary fund, as ar- to the been ment scheme operate. it to here that the Legislature intended gued consequences, plan will take from similar such With evil Kurz, case, the relator in an indefinite and Professor in oral argument heretofore (said undetermined percentage cent, at the amount about at the per present bar to forty of what sal- already August he earned as his writing) month, per of writ of ary should the peremptory $225.00 in applied for this case be denied. It mandamus will also public without compensation, confiscate use the in- terest on, or value of earning payable portion relator’s salary during time State’s would be com- officers pelled it due, withhold in after order to admittedly make the elaborate that are up calculations in- obviously to the dispensable that such plan end warrant of payment become may capable of administration the Comptroller. that Questions suggested were in the law ad- briefs and case, argument verted to the oral of this and which have not been opinion, discussed and decided in-this specifically will be for future reserved determination should it become adjudicated appropriate necessary they pro- a decision requiring ceeding questions. such It follows what has been that the return said respondent Comptroller insufficient law to being preclude granting prayed, relief writ peremptory should be mandamus awarded with relator’s motion filed end. writ Peremptory awarded. mandamus Gray C. J., J., Whitfield, Brown, and John Judges, Circuit son, concur. J., in part.

Terrell, dissents J., absent Ellis, because illness. J., disqualified.

Buford, Terrell, (dissenting part). Legislature J. —The Chapter enacted better known as General Appropriation Bill. It also enacted Chapter making an appropriation pur- free schools and for other poses, Section Five of which is as follows: appropriation

“This and of shall equal dig- parity with all other nity made tHe State Florida 1935 or prior years, except of of of appropriations in House following as contained Bill No. * * * 1256 of the Session follows': “If, otherwise, appropriation for insufficient or funds paid cannot be di- given full shall year, during any same that other proportion minished only appropria- made Legislature hereinabove excepted tions are such given year.” diminished during

On declined draw Comptroller effective becoming warrants those not for of the payment salary included Section but here. exceptions listed in Five not quoted compel is a in mandamus This proceeding seeking that are con- performance duty. We consequently with the of whether not the question fronted Chapter can the terms at- the manner modify Section tempted Five of paragraph concluding Chapter 17247. opinion Chapter

The 17247 invalid holds because majority in conflict Article Section with Section Two of Nine and Thirty of Article Three of the Constitution. Thirty that requires making Three laws expenses officers current salaries other provisions subject. the State shall contain other no main on the provision question Whatever bearing this to me to be seems remote. presented Two Article Nine or- pertinent part The of Section reve- “Legislature provide shall raising dains each expenses of the State for nue sufficient defray fiscal year.” are quoted Section Two of Article Nine

The terms of “expenses But what constitutes mandatory. do not bi- year?” agree each fiscal I

State for Acts other bill and appropriation making appropri- annual In ations judg- answer to this question. my conclude ment, year” each ref- “expenses of the State for fiscal departments, expenses erence to the those com- operating missions, boards, or bureaus set the Constitution for up by a of Florida purpose guaranteeing people departments Those government. democratic form of other which some is portion words of the sovereignty reposed. our Constitution the support

Under institutions insane, deaf, Health, the blind and the a State Board of militia, prison, State and “such other benevolent the public good man- may require” institutions as is made Fourteen, datory. (Articles Thirteen, Fifteen.) and The Constitution in terms positive and inference authorizes to create other agencies commissions and as the public good for their vest them requires purpose with administrative and functions. judicial (Section One of Article Five Section Thirty-five Five.) I expense agencies, think of all such commis- operating sions, and institutions must in the “ex- comprehended penses of the State for each as must contracts year” fiscal made obligations pursuant them to law.

I do think the first Five part providing “this appropriation shall be and of equal dignity on parity other appropriations with made the Legislature all of Florida for 1935” one force and whit its adds effect. fact its it The that status but in- passage gave attempts sofar as Section Five withdraw from modify amount appropriation bill an sufficient to neu- general tralize deficit that arise the two any may disbursing governmental appropriations, purposes related more, herein named and no unwarranted invasion of is and cannot Section Two of Article Nine the Constitution stand. logic government

The promise supporting govern- society. the first to a If organized essential well ment not function we do does and expeditiously efficiently schools, roads, liberty, not have police protection, religious the State for the nor other offered benefits set the citizen. agencies government well The being of not nor hampered processes do should their up this in their to contract execute pow- freedom and restricted are These with clothed. must definite ers which they disruption. fixed never or subject and and uncertainty instituted It not that every view my agency economic, sociological, pur- benevolent Legislature for here not so the prescribed the test and- being meets poses Nine cannot be invoked protection of Section Two of Article reason am cited in their behalf. I can conceive of no one of open appropriations no not tied to authority why cannot be to the so- subjected herein purposes named Chapter clause 17247. called Parity in the mat has an unlimited discretion The funds ter public making restricting limitation. There not when controlled constitutional Article obedience to Section Four of must of course in copied Constitution which was of the State Nine Constitution, be done but this appropriation, Federal it. Legislature designs take or direction shape can Dunn, in 57, 24 Pac. for an Humbert v. 84 Cal. See Four, Article discussion of the of Section history teresting of the Constitution. Nine of the part opinion do not with that agree majority

I school public that the free holding responsibility county. rests system primarily The of 1838 and 1865 recog- Constitutions inferentially responsibilities. nized and seminaries schools as Ten, (Article Ten, Constitution of Con- stitution not out 1865.) place It state this public connection we no schools we know had now them in State prior the Civil The responsi- War. education, bility recognized by mass while inferentially State, the Constitution in the to be was actually borne private school academy. private and the The school, was forerunner free latter being at orphan attended poor first children only by whose parents could Our pay tuition. first public schools were free children poor and were only called sometimes pauper supported schools. tax free had their County ori- schools but gin were not patronized, well insignificant sum thirty-one per pupil first being appropriated cents for white The children. period academies of were early incorporated, owned, generally and were the fore- privately runner school. high

The public school system we it took shape now have under the Constitution of 1868 which State in the terms full responsibility, assumed Section of Article Eight One as follows: being

“It is paramount the of the State make ample to duty provision the education the of all children residing borders, within its without distinction preference.” Section the Two of same Article made it mandatory on Legislature provide the an to system uniform of common schools and and for university liberal maintenance of the same.

The Constitution of 1868 created provided and for the distribution of State and fund, school county created Education, State of Board and 1869, the school law of 1868, contained of Constitution enacted pursuant more ef- provisions to make the constitutional provisions recognized Act the Constitution fective. Both the and school public for the major responsibility State system. did Twelve, 1885, Article of

The Constitution present of the provisions add than on and enlarge more nothing It of education. 1868 on subject the Constitution of funds, pro- school and increased both county fur- districts tax school special the creation of vided for fund, enlarged school it enlarge ther and powers Education, designated it with vested Board of it additional clothe with the Legislature authorized time. It time to did it has which done powers, in the Con- expressed from the educational depart policy respect. stitution any of One Section State is reserved

The responsibility for an uniform provide by requiring provision make and liberal schools free system of the State maintenance, enlargement for their control over subordinate Education and giving Board of prescribe courses officers, power it the giving school fund, general school and invest the'State manage study, schools, policies, the administration of over control in the State. finances and school the State Board powers and duties general The 602, Section Twelve defined by Education as 755, 1920, Compiled Section General Statutes Revised duties general powers Laws of General defined Instruction Public Boards County 1920, Section Statutes of General Revised 1927, cannot read and Laws Compiled General that the Boards than County reached conclusion other 4-04

Public Instruction agents delegated are the primarily Legislature administer the the school affairs of county. have powers delegated to They Legislature, them the but have no constitutional The they status. raising school fund county but primarily responsibility, a county when it questions comes to of fundamental policy school their are subject acts the State review of Edu Board cation. Board of Undoubtedly County Public Instruc tion has important perform, duties to but when we think free public system terms school ultimate author ity and are in the State. Examination responsibility Legislature Acts affecting public passed schools since the adoption frequently of the Constitution abun support this dantly view.

Section One of Twelve Legislature requiring to provide for and support liberally, system of free public is no schools less than mandatory Section Two of Article Nine sufficient revenue for requiring the expenses for each fiscal Section Nine year. of Article Twelve only authority Legislature to support the free system school so when two provisions these are read together as latter they must more becomes than a permission mere to the Legislature to patronize the county school fund.

The Amendment to Section Nine of Article au- Twelve make thorizing to the school fund was people submitted in 1925 and at adopted election in general 1926. At the time it adopted over was half the were imposing counties maxi- mum millage permitted and with that could not operate but four school terms five some months of them than that. a general less There was demand for longer terms better school facilities in all the counties. The Governor the submission the Amend-' recommended ment. It was ground on the county advocated that every term, should have an eight months’ that support, school of the public matter, school and that adopted was if the Legislature supplement could school fund county accomplish purposes.' these

Inadequacy of prompted school fund Amended Section Nine Article in no Twelve. sense It abandoned sources of that fund provided, but already authorized: to supplement sources by appropria those enabled, public from the tions in order that treasury it be to perform the mandatory duty imposed on Section by One of Twelve. The amount Article of such appropria should tions determined demands, but arbitrary the needs of the various counties to out the carry public, free school approved policy Legislature, but when made they are force same and effect appropriations made other purposes.

But such. to become effective cannot be out of thin air. madd should be They predicated on a revenue source producing Legislature is clothed like power with to so predicate them that it provide is to the revenue required Two of Article Nine. So challenge construed the the Legislature can appro priate purpose under the every sun but the public free school is merit. The fact without that no command more Constitution than compelling in Section Twelve, provide One of and liberally support system Section Nine affords the means placed to do so. It public school on an equality with interest, before other Treasury. amendment to Section Nine The for this purpose was- consistent with perfectly history educational.'. years less than ten State. policy Beginning Constitution, after t'he adoption of Article Twelve than been six no other en- purpose amended for times the In large public facilities. re- people school the proposed Amendment Sixteen to tax of jected impose one mill on taxable in the benefit all State for the property of the University, College, the Women’s the school for the blind, the College, deaf and M. preferring A. support these direct tax. Which been institutions has done. it To mind absurd contend that liberally is my cannot public supported. schools liberally State, has this been educational only Not policy but it been of that State in the Union. typical every it not public should be? The the pri- And why is provided means for mass education and I mary know or institution to consideration object no entitled at the hands it. It here first ahead of was and from inception this there many have been very government that an who rests realized democratic civilization enduring on the than height of its rather on equality citizenship public magnificence buildings, of its the size of its roads, or the garage, width of lousiness of its its bank to nail years enough gold balances. knobs Ninety long clapboard doors. it is that Section Summarizing, view Two Article my Section One Article impose Nine and like man- Twelve on the Legislature, Constitution clothes duties datory ample respond commands, with to both but authority provided distinct sources of revenue must be so doing single sources for both. Appropriations each or sufficient from provided cannot be neutralized for funds either pur- pose, other but they may under herein, or excluded whether included manner stated Five, Section 17247. Chapter terms raised, but express questions I the other have examined diffi- grave present them. them opinion no as to Some of Six, 17247. Chapter which be cured by culties may issue. this case should I that the writ in peremptory agree Rehearing. Petition On opin- says petition rehearing Brown, J. The that the maintenance ion of Court case holds purpose.” local or “County exclusively schools There be some opinion. may 1 do not so understand background in the the historical language statement of impres- create that might here involved which question that the sion, opinion the but conclusion reached the ample permissive appropriate to Legislature power funds, taxation, to the county State raised State to to the of several of ability the counties limit its funds but that it cannot exercise purpose; raise revenue for cripple per- prevent as to the power such or way under Section its mandatory duty, formance of and primary Constitution, expenses to of 2 Article IX the the of of pay the is broken government If State government. the State crip- seriously it. If down, go would with it is the counties suffer, get any also and could not the would pled, counties it. from The Constitutions appropriations substantial the Legis- made it primary duty State have long necessary make appropriations revenue to raise and lature it the State but was government; the expenses pay to was the Legislature given nine that the years ago until not State to the funds make direct appropriations to power respective counties of the Fund” of School the “County State.

'408 time, provided, to that the Constitution had already

Prior the funds common provides, still distinct two .schools, Fund,” one, “State interest' of the School the only the to free applied support ..which .can .schoojsj inviolate”; other, to “remain the principal the the Fund,” School certain specified to ele- consist “County ments. These fund (1) embraced the derived elements - mills, 3 to 10 from the school tax from (2) Fund, (3) interest on .proportion School proceeds one mill State tax to apportioned capitation within the county, and all taxes collected (4) county. Legislature given power,

The to make was expressly Fund, appropriations the State the interest School Funds; which went to the School but was not County power; until the amendment of make given ap the County Fund; power School so propriations v given mandatory e. permissi but was So, prior distinguished the Constitution sharply Fund,” the “State Fund” School School “County concerned.; far in this sense were .so Fund, School which County primarily consisted tax, been county-raised might have a purely well deemed purpose,” expended “county within wholly local county, which make no could appropriations. direct State The one mill school tax im the Constitution posed apportioned itself to by County the School Fund.

But the amendment constitutional of 1926 added the to Fund, sources the School County “appropriations made Legislature,” implication the thus necessary giving power the to make Legislature the such appropriations, funds be- county -and to extent such to'the school aid came a “State legitimate purpose.” the amendment since

There can be no question, especially Constitution, the XII 1926 to 9 of Article the principle that, to extent about the correctness of Fund outlined, the School County maintenance of above a as in each State is now State well every county now has Legislature a to which purpose, aid County ample power appropriations just to make which may prior made for other But purpose. as valid those have Legislature the amendment of could not to funds, school appropriations made direct the county such but it was given power, merely amendment commanded, make appropriations. such the respective Fund So, School although County the Consti- what still remains (which the State counties includes now it, e., fund), a tution calls i. fact remains Legislature,” “appropriations by such to make the Legislature power the constitutional the Consti- power, whereas appropriations permissive Legislature duty tution makes it mandatory ap- make the necessary revenues and raise the necessary expenses government, of the State propriations pay cannot avoid fully. Legislature The but not partially duty, making this mandatory cripple performance thereto, in pursuant made payment the revenues upon proving conditional part, whole or in made part appropriations or in whole sufficient pay performance The permissive power. under a merely exercise made subordinate to the cannot be duty mandatory power. of a permissive Constitution, pro- in Section XII of

While system a uniform provide shall vides that “The free for main public schools and shall the liberal provide same,” tenance of the the of Article succeeding sections XII give very specific how such “liberal just directions maintenance” provided. shall The pro Constitution funds, one the “State vided two School Fund” and distinct Fund,” the other the School “County putting primary burden of upon School maintaining County Funds d respective counties, an the sources specifying expressly each from which funds be created. It these should left no room for doubt one was State a School Fund and a State, Bours, other Fund. In County School ex rel. L’Engle, v. Fla. 24 So. this Court said:

“It apparent that Article a XII has complete devised scheme for the support and maintenance of public free schools various the State. A counties of State school provided sources, is first specified fund from which is inviolate, to be kept thereon, and the interest accruing d tax, a one mill shall apportione the different among counties of the Then a State. school for the county fund support of the public free schools of the is provided county for, the constituent parts are specified. fund In addition the apportionment funds and the capitation taxes within collected the county, further a assessment is to be county required of not less than three nor than more five mills dollar of taxable prop county, and all this is a erty constituted school county fund to be disbursed board public instruc tion for the maintenance solely support of public free schools. To the extent aof direct county levy purposes, a Sec. 8 command make such levy, at same time it limitation upon power contains require authorize in excess levy mills, except of five tenth section provided for an mills for district than not more three additional levy that provides IX section Ariticle The fifth purposes. the in several counties shall authorize and purposes, impose for county State to and taxes assess public of the while the purpose, support for and other no en- a still it may purpose, county schools of is county county differentiated clear that Constitution has tirely a limitation thereto. applied purpose for this taxation and county that each enjoins Constitution expressly When the sup- collect required shall be and for annually to levy tax nor free of not less than three public schools port of the taxable property than on dollar of more five mills admissible no other construction county, proper power than to tax such is limited purpose for that rate stated.” higher written, Section 8 opinion above was quoted Since the each provide Article XII was amended so he assess collect required annually shall therein “a Tax not less support schools three not more than ten on (10) than mills and (3) mills taxable the dollar all same.” property in- so as to 1922, amended Section was Likewise three ten from districts limit of school the taxing crease 1912, 17 was election in at general mills. And dis- authorized amended in which adopted and Section made amendment The to issue bonds. tricts these Except to. been alluded already XII of scheme of Article comprehensive amendments, the it the Constitu- as was when remains just the Constitution ago. adopted fifty years was' tion good would sub- purpose cannot see We case. mentioned points The rehearing aby served been considered have petition carefully already 412- grounded The decision

the Court. already'made firmly Constitution, plain upon language good" no has, in our opinion, been shown.. departing reason for therefore should be denied. petition The Gray Whitfield, Davis, J., J., C. Johnson, Circuit Judges, concur. J.,

Terrell, dissents. Terrell, think (dissenting). rehearing for petition J. —I should be granted. Davis, originated (concurring) as an at suit J. —This

tempt one a college month teacher to collect $225.00 his; August he salary had already earned services rendered in the school, State’s summer which ais primarily set up and maintained for the of in training teachers system common school of Florida in that order such teach might ers continue qualified teach and some se cases cure life so do. certificates Supreme Florida, tribunal;

Thus Court of as a judicial has been upon called in this case to it (if rulei dared) teacher, favor rights of constitutional of single college a 15,000 against the rights as claimed statutory organized' voters of this State whose intent political to visit reprisals members Supreme Court, if dared to rule they them, against been covertly, has if not openly, as asserted more program numerous group. government is a laws government This longer men. the land can If the no under courts of safely presented them pass legal rights take upon adjudi cation, strength relative regardless liti voting them, indeed, then gants predicated before great historian, in the Macaulay, democracy United States an “anonymous degenerated tyranny” by into the,political" for, the individual substituid mass of an heredi- tyranny freedom, monarch, tary under the law constitu government in tional these this State United States and is longer form, no more than a vacillating, nominal unstable uncertain. experience as a member of the con

My Legisláture has me vinced that organized voters any compactly group of can force through enactment (consti tutional or unconstitutional), provided not opposed organization some or equal greater numbers. This ais fact, melancholy no governmental but realist politics will its truth. dispute if the are

Now to like influences in arbi yield courts constitutional, legislative trarily sustaining as Acts Constitution, been may passed have in violation organized because some merely powerfully political group rendered, insists such decision right then wrong, the Courts independent agencies as well abolished as may the government, independence because their no longer a and the reality judges pretend who therein preside are longer judges no but sycophants, creed of whom should be well understood creed mere politicians, all which is to the effect that “that political course safest is which pne of well inaction against considered idea. popular any I am” loath to that intimidation of the believe Courts a part now become of Florida’s common educational school political reprisals or that program, are to be the order those the people whom have entrusted day by educators to educate the principle their children in for con respect Courts, in authority represented stituted the State as in its in as train well them ordinary as educational subjects. However, the fact I do not believe (which if such be conscientious ,so), prefer witty I take stand my a who, hanged when about be mob Judge, Western he to further organized promise farmers unless not would against office foreclosure obey signing his oath of decrees them, chose an rather than a life honorable death cowardly prostitution his office to other than judicial judicial considerations.

Political department “free is bad wheeling” any It government. court of justice is intolerable a where rights non-voter, voter and resident and non-resident, religious profane, patriot and the anarchist, the and the minority, must be majority alike weighed judged cold of an im neutrality partial maxim, Court only actuated by the “Justitia fiat (Let caelum ruat" justice though done the heavens fall). must it to have been Judges upon they law as find pass written, In respect Judges not wish it to be. they no than our perform different function do qualitative worthy every who must examination grade paper teachers written, turned in their it been find have pupils as they would wish to have it appear. they No con- school teacher would his self-respecting stultify a self-respect science forfeit “passing” his by giving to a on an grade popular examination to avoid pupil merely patron disfavor with some influential school who politically his he did not might agitate if do so. taking away job can Neither when on to judge, called self-respecting Constitution, a statute in the “grade” light of the State’s such a “pass” statute as constitutional when he has law examined it not to fully and found have made a “passing” so, grade, though even to do refusing politi- he may cally and made to spanked stand the corner of office- oblivion. holding in opinion Inc., in its Court Maxcy, stated this

As was 121, text Rep. 139 Sou. 131: page 103 Fla. v. Mayo, case, “When to in a appealed proper can the judiciary no greater perpetuation render service toward the of free government than accord individual litigant to before to it, however in be, humble station his society just may protection law, of our fundamental that protection when is sought means forestall aggressive as bent combinations on power penalize employing statutes citizen for his rugged individuality to surrender his refusing constitutional rights be what may po- to' contrary minded litical majority. dei, Vox vox populi, not the equivalent of salus populi supreme lex esto recognized as ju- ** * in our American diciary system of constitutional law.

I therefore concur in denial aof in this case. rehearing the ultra implied Realizing licitem what may I have above written published and filed con- my opinion in case, this because curring absence of any other judicial prerogative part deal with the situ- my ation with which I have been confronted in con- personally nection with certain events and occurrences have taken place brought and been to, attention my subsequent but attendant upon, the announcement of the original Court’s opinion written which was as the me chosen spokesman Court, the Supreme I add that my may declared rebuke for, intended and is to those addressed unnamed persons only, whose conscience them of convicts within the being purview of the covert I have so de- activities pointedly nounced taken place having connection with this case Supreme after the original Court’s opinion was filed while a petition was still rehearing undisposed pending Court. by this

In a spirit of absolute to the Florida fairness Educational Association, counsel, Tillman, its Senator Henry S. has so represented before this who Court ably

416- cor- through advised

case, pleased I to be officially am con- to me my been addressed- since respondence Education filed,'that neither the Florida opinion curring was Association, counsél, officially able nor its nor its in, part nor taken spokesmen, instigated, have accredited effort, an the covert activities I have condemned as which the common zeal for the-welfare of through misguided Florida; power organ- voting schools commit supporters program common of this ized sabotage of Florida in their behalf. political judiciary the Florida accept protestations made behalf of I same, true, being Educational counsel for as Association a supplement and herewith fact sanie record óf what I in order that originally special opinion jny stated one no me within condemned may who is justly purview rebuke determinable the con- my solely viction own conscience. his Cummings

Frank State. v. 924. So.

Opinion Filed October 1935. Error; /. J. Murray, .Plaintiff Landis, General, D. Cary Campbell, Attorney Roy Assistant, for the'State. brings error here review

Per Curiam. -The writ of manslaughter under informa conviction judgment degree. in the murder second tion charging is whether not the presented evi- question The only verdict judgment. sufficient sustain dence

Case Details

Case Name: State Ex Rel. Kurz v. Lee

Court Name: Supreme Court of Florida

Date Published: Oct 11, 1935

Citation: 121 Fla. 360

Court Abbreviation: Fla.