State Ex Rel. Harrell v. Cone

177 So. 854, 130 Fla. 158

• Court: Supreme Court of Florida
• Decided: October 6, 1937
• Status: Published

Opinions

Terrell, J.

The Legislature of 1937 enacted Chapter 17967, authorizing the State Board of Administration to “distribute and pay monthly to the County Road and Bridge Fund of Washington County all moneys appropriated to the use of the State Road Department for the construction within the said county of these State Roads within said county which were heretofore designated as and recognized by the State Road Department as being á part of the first, second, or third preferential system of State Roads.”

The State Board of Administration created by Chapter 14486, Acts of 1929, composed of the Governor, Comptroller, and State Treasurer, by a majority vote ordered the distribution as authorized by Chapter 17967, but the Comptroller, being the Secretary of the Board and having voted against the distribution, declined to draw his warrant against the State Treasurer to make it. This proceeding in mandamus was brought by C. W. Nelson, a citizen taxpayer, and the Board of County Commissioners of Washington County against the State Board of Administration and J. M. Lee as Comptroller and Secretary of said Board, and W. V. Knott as State Treasurer and County Treasurer ex officio of Washington County, to compel them to distribute' the funds to Washington County in compliance with the Act.

J. M. Lee as Comptroller and Secretary moved to quash the alternative writ challenging the constitutional validity of Chapter 17967. The Governor and the State Treasurer filed a return signifying their willingness to comply with the commands of the alternative writ but they assert that the Comptroller had refused to draw a warrant upon the State Treasurer to accomplish that purpose. The issue so made is before us for adjudication.

The first question with which we are confronted is whether or not J. M. Lee as Comptroller of the State and as Secretary of the State Board of Administration is em-' powered to challenge the constitutional validity of Chapter 17967 in a proceeding of this kind.

The petitioners contend that this question must be answered in the negative and rely on State, ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A. L. R. 362; County Commissioners of Franklin County v. State, ex rel. Patton, 24 Fla. 55, 3 So. 371; Adams v. American Agricultural Chemical Co., 78 Fla. 362, 82 So. 850; Land v. State, 77 Fla. 212, 81 So. 159; State v. City of Sarasota, 92 Fla. 563, 109 So. 473; City of Seabring v. Wolf, 105 Fla. 516, 141 So. 736; State, ex rel. Alderman, v. Beville, 107 Fla. 57, 144 So. 331; State, ex rel. Clarkson, v. Philips, 70 Fla. 340, 70 So. 367; and State, ex rel. McMullen, v. Johnson, 102 Fla. 19, 135 So. 816, to support their contention.

We have examined these cases and find much learning on the subject exemplified in them. The case of State, ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers is one of the leading cases in the country on the question, and is the one most strongly relied on. The majority opinion in that case, quoting from People, ex rel. Attorney General, v. Solomon, 54 Ill. 39, says that “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.”

The theory of the majority opinion in that case is predicated on the ground that ministerial officers of the State had arrogated to themselves the judicial prerogative of nullifying an Act of the Legislature. Nullifying an Act of the Legislature is in fact a very different matter from challenging the constitutional validity of an Act, the former being exclusively a judicial function while the latter may be done by ax± officer or an individual under permissible circumstances as we shall presently show.

In 30 A. L. R., at page 378, under annotations following, State, ex rel. Atlantic Coast Line Railway Co., v. State Board of Equalizers, supra, the subject, “Unconstitutionality of statute as defence to mandamus proceedings” is fully discussed and all the cases collected. From these cases, the general rule is deducted that a ministerial officer cannot in mandamus question the constitutionality of a statute imposing strictly ministerial duties on him that are subordinate in character and incidental to the main purpose of the Act when no injury can possibly result to him or the public by compliance with the Act. This njle was recognized in the dissenting opinion of Mr. Justice Whitfield in the last cited case and was supported by many authorities.

A study of the cases in 30 A. L. R., supra, reveals many exceptions to and departures from this general rule. If the terms of the statute imposing the duty are ambiguous and susceptible of more than one interpretation, the respondent officer in a mandamus proceeding to compel him to obey it may challenge the constitutional validity of the construction placed on it by the relator. State, ex rel. Clark, v. West, 272 Mo. 304, 198 S. W., 1111.

There is another line of cases which hold that since an unconstitutional Act binds no one a ministerial officer affected by it may challenge its validity in any proceeding brought to require him to comply with it whether his personal rights are affected by it or not. State, ex rel. McCurdy, v. Tappan, 29 Wis. 664; State, ex rel. University of Utah, 406, 104 Pac. 285, 24 L. R. A. (N. S.) 1260; Van Horn v. State, 46 Neb. 62, 64 N. W. 365; Brandenstein v. Hoke, 101 Cal. 131, 35 Pac. 562. The case of State, ex rel. University of Utah, v. Candland, supra, also supports the rule that if- a ministerial officer is directly responsible for his official acts, he may challenge the constitutional validity of the Act prescribing them in an action to compel him to comply with it.

There is a line of cases which hold that a ministerial officer may, as a defense to a proceeding in mandamus, raise the constitutional validity of an Act imposing duties on him which are of general public interest. State, ex rel. Hubbard, v. Holmes, 53 Fla. 226, 44 So. 179; Wright v. Kelley, 4 Idaho 624, 43 Pac. 565; Ames v. People, ex rel. Temple, 26 Call 83, 56 Pac. 656.

Many cases hold that if an Act requires a ministerial officer to perform duties particularly affecting him personally, as where he will violate his oath of office if he performs them, or where he is charged with the control and disbursement of public funds, his official capacity gives him such an interest in the matter that he may challenge the validity of the Act in mandamus. State, ex rel. Russell, v. Barnes, 25 Fla. 75, 5 So. 698; State, ex rel. Wiston County, v. Snyder (Wyo.), 212 Pac. 758; Woodall v. Darst, 71 W. Va. 350, 77 S. E. 264, 80 S. E. 367; Davis-Smith and Co., v. Clausen, 65 Wash. 156, 117 Pac. 1101; Commonwealth, ex rel. Attorney General, v. Matheus, 210 Pa. 372, 59 Atl. 961; Miller v. Leech, 33 N. D. 513, 157 N. W. 492; Rhea v. Newman, 153 Ky. 604, 56 S. W. 154; Stockman v. Leddy, 55 Col. 24, 129 Pac. 220; Denman v. Broderick, 111 Cal. 96, 43 Pac. 516.

The case under review falls easily within the rule last supported and some of the cases cited go so far as to hold that when in the performance of an act imposed by statute, an officer is required to violate his oath of office to support the Constitution, in any way jeopardizes the interest of the public or otherwise render himself liable for breach of duty, he should in justice to himself and the public be entitled to raise the constitutional validity of the Act in mandamus to compel performance.

But' the Comptroller as such and as Secretary of the Board of Administration is more than an administrative officer. Section 23 of Article IV of the Constitution, requires him to examine, audit, adjust, and settle the accounts of all officers of the State, and Section 142, Compiled" General Laws of 1927 makes it his duty to examine, audit, and settle all accounts, claims, and demands whatsoever against the State arising under any law or resolution of the Legislature and to draw his warrant on the State Treasurer for such amount as he may allow. These provisions apply to amounts disbursed under the Board of Administration Act and in the absence of the rule as stated would authorize the Comptroller to challenge any Act disbursing public funds if he entertains grave doubt as to its validity.

The second question with which we are confronted may be stated as follows:. Is there any inhibition in the Constitution against the Legislature imposing an excise tax for a public purpose and distributing the proceeds in the manner provided by Chapter 17967, Acts of 1937?

The excise tax brought in question was imposed by Chapter 14575, Acts of 1929, as amended by -Chapter 15659, Acts of 1931, and was designated in the latter Act as the “second gas tax.” It was “a tax of three cents (.03) a gallon to be apportioned as provided for in Section 8 of this Act,” and was required to be paid into the State Roads Distribution Fund:

Summarized, Section 8 provides that the State Road Department shall ascertain and report to the Comptroller the amount of money advanced to the State by each County Special Road and Bridge District or other taxing district for the use of the State Road Department in the construction of state roads. The Comptroller was required to audit the amounts certified to him and if found correct, was required to draw his warrant on the State Treasurer for the net amount shown to be due each county, the warrants so drawn to be paid from the State Road Distribution Fund. The method of distribution specified in the Act was one cent in the proportion that the area of the county bore to the total area of all the Counties; one cent in the pro portion that the population of the county bore to the' population of the State and one 'cent in the proportion that the county or any special Róad and Bridge' District or other taxing district in the county advanced' and contributed to the construction of state roads.

Section 8 also provides that after the moneys advanced by the counties and special taxing districts has been restored, they should continue to participate in the distribution on the same basis but that the amount accruing to them should be paid monthly to the State Road License Fund to be used by the State Road Department as soon as practicable for the construction of those roads within the county recognized as being a part of the first, second, or third preferential system of State roads.

In Carlton v. Mathews, 103 Fla. 310, 137 So. 815, we held that the primary purpose of Chapter 15659, Acts of 1931, in imposing the “second gas tax,” was to provide for reimbursement to the counties and special taxing districts for moneys expended by them or contributed to the State for the construction and building of public roads within the county which by Acts of the Legislature had been designated and taken over as State Roads and when done to continue the distribution of said funds to the counties for the construction of state roads therein. No county could participate in the distribution of the “second gas tax” that did not meet these conditions.

We also held in Carlton v. Mathews, that the “second .gas tax” was for a current state expense, viz., the construction and maintenance of a system, of state roads. This is a State expense which the Constitution required the Legislature to provide for annually, Section 2, Article IX. The Constitution requires a uniform and equal rate of taxation but does not require uniformity and equality in dis tribution of state funds for state expenses, the institutions, and instrumentalities including highways for which the taxes are imposed not being uniformly located throughout •the State.

• The “second gas tax” was imposed under Section 5 of Article IX of the. Constitution which says among other things that the “Legislature may also provide for levying a tax on licenses.” The license or" excise tax is not burdened with the limitations carried in the same section on ad valorem taxes imposed for county purposes and in the matter of its distribution, the Legislature has a very broad discretion. License taxes must be imposed by statute at a uniform and equal rate, must not violate organic property rights and must not run counter to federal authority.

The “second- gas tax” is a state tax collected by state officers and apportioned to the counties for a designated purpose or purposes. It has been designated a county fund when it gets to the counties. Amos v. Mathews, 99 Fla. 1, 126 So. 308; Carlton v. Mathews, supra. Ordinarily the Legislature has plenary power in the matter of apportioning or allocating a State tax among its political subdivisions. Chapter 156S9 imposing and distributing the “second gas tax” limited its use to a designated state purpose, to-wit, the construction of a system of public roads. The State has plenary power over the public roads, whether they belong to the state or county system. The “second gas tax” is a state tax; it was imposed for a state purpose and. cannot under the guise of a general Act, local in effect, be diverted to the counties for an exclusively county purpose; but it may be’disbursed among the counties to be used by them for a state purpose. On account of the limited application of the Act authorizing the “second gas tax,” any Act allocating it to the counties must limit its application to the construction of roads and bridges.

Chapter 17967, Acts of 1937, proposes to divert Washington County’s part of the “second gas tax” to the county road and bridge fund of the county, to be used by it for road construction. It is contended that such a diversion is for the sole purpose of constructing and maintaining local county roads and bridges which is contrary to the spirit and purpose of Chapter 15659 imposing the tax.

This contention goes to the use after distribution and not to the manner of the distribution. It is not contended that the manner of the distribution was illegal. It was for a purpose within the contemplation of Chapter 15659 and being so, was within the power of the Legislature to make. We will not assume that the county will use it for an unlawful purpose. If that should be attempted, it may be intercepted by any taxpayer or other person interested in an appropriate action.

It is contended that Chapter 17967, Acts of 1937, is in, violation of Section 20 of Article III of the Constitution in that it undertakes to regulate the duties of a class of state officers and in that it attempts to deal with the assessment and collection of taxes for state and county purposes.

Section 20 of Article III prohibits the passage, of a local bill that regulates the duties of any class of officers or that pertains to the assessment annd collection of taxes. Chapter 17967, Acts of 1937, pertains to. the allocation of a tax that was imposed and collected under a general law and does- not presume to regulate the assessment or collection of a tax. It adds to the administrative duties of the Board of Administration- but that is a mere incident to the main purpose of the Act and.may be done without violating the Constitution. Jackson Lumber Company v. Walton County, 95 Fla. 632, 116 So. 771, and McMullen v. County of Pinellas, 90 Fla. 398, 106 So. 73.

It is contended that Chapter 17967, Acts of 1937, is in violation of Sections 2 and 7, Article IX, of the Constitution in that it undertakes to appropriate state funds for county purposes.

Carlton v. Mathews, supra, and our answer to the second question herein would seem to settle this question contrary to respondent’s contention. The building of public highways is primarily a state function but it may be delegated to the county or some other state agency. A public road may be both a state and county function. Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372; Lewis v. Leon County, 91 Fla. 118, 107 So. 146.

As to the contention that Chapter 17967, Acts of 1937, undertakes to amend Sections 8 and 9 of Chapter 15659, Acts of 1931, without reenacting and publishing the sections as amended, contrary to Section 16 of Article III of the Constitution, it is sufficient to say that when by implication ‘ or necessary intendment, an Act of the Legislature changes a prior law, the Constitution is not violated by failure to comply with Section 16 of Article III. Miami Transit Co. v. Amos, 115 Fla. 842, 156 So. 279.

Other questions raised have been considered and found to be devoid of merit. The motion to quash the alternative writ is denied.

It is so ordered.

Whitfield and Chapman, J. J., concur. Ellis, C. J., and Buford, J., dissent. Brown, J., dissents in part.