State Ex Rel. Kurz v. Lee

163 So. 859, 121 Fla. 360

• Court: Supreme Court of Florida
• Decided: October 11, 1935
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

STATEMENT. Prior to the adoption and ratification as a part of the State Constitution of House Joint Resolution No. 541 (page 543, General Laws, 1925 Session) proposing an amendment to Section 9 of Article XII of the Constitution of Florida relating to common school finances, this Court had impliedly held the Legislature to be without power to appropriate or distribute for school purposes any part of the general state revenues. Board of Public Instruction of Santa Rosa County v. Croom, Comptroller, 57 Fla. 347, 48 Sou. Rep. 641. In that case Chapter 5381, Acts of 1905, Laws of Florida, providing state aid to certain county schools was declared unconstitutional. The holding of the case just cited was approved and followed in Amos v. Mathews, 99 Fla. 1 (text page 114), 126 Sou. Rep. 308, 331, 347, which latter case, however, was not decided until after the amendment to Section 9 of Article XII had been proposed and ratified.

At the 1925 Session of the Legislature there was introduced and passed by the Legislature House Bill No. 920 by Mr. McCall of Hamilton County. This bill undertook to make an appropriation for, and to provide for loans from, the general revenue fund of the State for the aid of public free schools in the State (House Journal, 1926 Session, pages 1862, 1973, 2439, 2440, 2441, 2442, 2443, 3856, 3857, 3902, 4399, 4616). This bill was ultimately vetoed by the Governor after the session of the 1925 Legislature had adjourned, one of the reasons for the veto being (1925 House Journal, Extraordinary Session, pages 133, 134, 135) that the bill in question conflicted with the opinion of this Court in the case of Board of Public Instruction of Santa Rosa County v. Croom, supra. The Governor's veto of House Bill No. 920 (1925 Regular Session) was sustained by the Legislature at its 1925 Extraordinary Session. See pages 1214, 1215, House Journal, 1925 Extraordinary Session.

Forecasting his veto, the Governor on April 28, 1925, sent the following special message to the 1925 Legislature:

"STATE OF FLORIDA, EXECUTIVE DEPARTMENT Tallahassee, Fla., April 28, 1925. "MESSAGE "SUBJECT: EDUCATION "Honorable A.Y. Milam, Speaker, and Members of the House of Representatives.

"GENTLEMEN:

"There will be introduced in the House and Senate a Joint Resolution proposing an amendment to Section 9 of Article XII to the Constitution, which if agreed to by the Legislature and approved by the people at the polls will have the effect of conferring upon the Legislature the power to increase the county school fund by direct appropriation from the State Treasury. If the child in the rural districts and poorer counties of this State is to enjoy equal educational advantages with the more favored child in the cities and wealthier counties, the generous hand of the State cannot longer be withheld. It is an anomalous situation when a Legislature can appropriate millions for higher education and not ONE CENT for an essential common school education. No one would withhold from our institutions of higher learning funds necessary for their support. As Chairman of the State Board of Education and of the Budget Commission, I was glad to advocate a liberal appropriation for those splendid institutions which are the pride of every patriotic citizen within the Commonwealth. I did this freely, but with the fixed conviction, however, that the time has come to do justice to the great mass of the youth of the State who will be deprived of the opportunity of sharing in these legislative appropriations. In that part of my message to the Legislature dealing with education I made the following statement:

"`In the smaller and poorer counties sufficient revenue for operating the schools cannot be had outside of State aid at its full cash value in these counties. We shall, therefore, have to find means other than the raising of values in these counties. Education in a democracy like ours is not a local question.'

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

"Yours truly,

"JOHN W. MARTIN, Governor."

Pursuant to the Governor's message, there was almost immediately thereafter introduced into the House of Representatives House Joint Resolution No. 541 by Mr. Waybright of Duval County (House Journal, 1925 Session, page 924), proposing an amendment to Section 9 of Article XII of the Constitution to carry out the Governor's recommendation that the Constitution should be specifically amended for the purpose of "conferring upon the Legislature the power to increase the County School Fund by direct appropriation from the State Treasury," as had been attempted unconstitutionally to be done by the vetoed House Bill No. 920 making such appropriation under the guise of "loans."

House Joint Resolution No. 541 so introduced pursuant to the Governor's message of April 28, 1925, was approved by the House Constitutional Amendments Committee with but one change recommended in its verbiage from that in which it had been introduced into the Legislature. So House Joint Resolution No. 541 as so framed in accordance with the recommendation of the Governor, was submitted (House Journal, 1925 Regular Session, pages 924, 942, 1712, 1784, 1785, 1786, 3132, 3494, 3495, 3898, 4116; Senate Journal, 1925 Regular Session, pages 1271, 2101, 2329, 2330, 2362, 2363, 2913, 3143) as a constitutional amendment to be voted on at the 1926 General Election. At such 1926 election it was ratified by the affirmative vote of a majority of the electors voting thereon, and so became a part of the Constitution as of that date.

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

"HOUSE JOINT RESOLUTION NO. 541. "A JOINT RESOLUTION Proposing an Amendment to Section 9 of Article XII of the Constitution of the State of Florida, Relating to Education.

"Be It Resolved by the Legislature of the State of Florida:

"That the following amendment to Section 9 of Article XII of the Constitution of the State of Florida relating to Education be and the same is hereby agreed to and shall be submitted to the Electors of the State at the General Election of Representatives in 1926, for approval or rejection:

"Section 9. In addition to the tax provided for in Section 8 of this Article the County School Fund shall consist of the proportion of the interest of the State School Fund and of the one mill State tax apportioned to the county, all capitation taxes collected within the county and all appropriations by the Legislature which shall with all other County School Funds be apportioned and distributed as may be provided by law and shall be disbursed by the County Board of Public Instruction solely for the support and maintenance of public free schools. Provided, that such apportionment and distribution shall be made by general law based upon some declared principle of classification to be determined by the Legislature.

"Approved June 4, 1925."

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

So far as can be discerned from the archives and records of the Executive Department and of the Legislature since the adoption of the Constitution of 1885, each Florida Governor who has had occasion to place an interpretation on Section 2 of Article IX and Section 30 of Article III of the Constitution, has taken the position in official utterances that the duties imposed upon the Legislature by those provisions of the Constitution were mandatory, and that where such duties had not been adequately discharged during a regular session of the Legislature by making appropriations for the conduct of the State government for the next biennium, and making provision for raising revenue to defray the current expenses of the state for the corresponding period, that it thereupon became the duty of the Chief Executive in "taking care that the laws be faithfully executed" (as provided by Section 6, Article IV) to exercise his power under Section 2 of Article III of the Constitution to call the Legislature into Extraordinary Session for the purpose of passing and enacting into law measures calculated to effectuate the requirements of said Sections 2 of Article IX and 30 of Article III to make adequate provision by way of appropriations to pay the salaries of public officers and pay the current expenses of the State and to provide for raising revenuesufficient to pay the same. See: Call for Extraordinary Session of Legislature by Governor Martin on the sine die adjournment of the 1925 Regular Session without enacting a revenue measure or appropriation bill (Pages 4521, 4522 Journal House Representatives, 1925); Call of Governor Carlton for Second Extraordinary Session of Legislature in 1931 to enact appropriation bill and provide sources of Revenue to meet same (House Journal, 1931 Regular and Special Sessions, page 3 of Journal for Second Extraordinary Session); Call of Governor Carlton for Extraordinary Session in 1929 to enact appropriation bill and make provision for raising revenue to defray the expenses of the State Government (Journal of House of Representatives, 1929 Extra Session, page 1015).

It was held by the Supreme Court in an Advisory Opinion to Governor Martin in 1927, that the Constitution contemplates that state expenses shall not exceed the revenues provided by law to be raised for each fiscal year to defray the current expenses of the State for the fiscal period, and that it is mandatory that Section 2 of Article IX of the Constitution, to that effect, shall be observed by each regular biennial session of the Legislature. See Advisory Opinion to the Governor, 94 Fla. 967, 114 Sou. Rep. 850. It was also observed by the Court in that opinion that while appropriations might be validly made by the Legislature dependent upon future collections of revenue already provided by law to be raised for the purpose of meeting the appropriations, that such appropriations, however, even for State expenses, would not become available until collections of revenue had been realized sufficient to warrant payment of the appropriations so made contingent thereon.

The rule has been established by the judicial decisions of the highest court in this State, that in construing a statute or constitutional provision for the purpose of ascertaining and determining its intent and purpose, and legal effect, that it is always permissible to look at the history of the constitutional or statutory provision involved in order to detemine its proper construction, State v. Amos, 76 Fla. 26, 79 Sou. Rep. 433; Tampa J. Ry. Co. v. Catts, 79 Fla. 235, 85 Sou. R ep. 364; Jerome H. Sheip Co. v. Amos, 100 Fla. 863, 130 Sou. Rep. 599; Louis K. Liggett Co. v. Amos, 104 Fla. 609, 141 Sou. Rep. 153; State, exrel. Parker, v. Lee, 113 Fla. 40, 151 Sou. Rep. 491. It has likewise been held permissible to examine in the same spirit and for the same purpose the contemporaneous construction or interpretation that has been placed on a provision of the Constitution by affected officials of the State and the responsible departments of the State Government charged with the duty of interpreting and observing it, in order to ascertain what judicial construction should be followed with regard to such provisions when they become involved in a controversy brought in the courts affecting same. State v. Butler, 70 Fla. 102, 69 Sou. Rep. 771; Sullivan v. City of Tampa,101 Fla. 298, 134 Sou. Rep. 211.

So, it appears from the foregoing statement, by a contemporaneous and consistently adhered to construction by all departments of the State government — Legislative, Executive and Judicial, Section 2 of Article IX and Section 30 of Article III of the State Constitution have always been read together as evidencing a definite state fiscal policy and purpose, and have been regarded as imposing an inescapable constitutional duty on each regular session of the Florida Legislature to ascertain andset forth in a general appropriation bill what are the current expenses of the State required to sustain its officials and agencies in well and faithfully performing their several oaths of office (Section 2, Article XVI, State Constitution) as set forth and contemplated to be carried out in accordance with the State of Florida's general system of laws relating to the performance of divers acts as state functions, and to make in such general appropriation measure adequate appropriations of money to enable the state's laws to be executed by the affected officials and agencies who thereby become entitled to employ services of individuals and procure materials on the strength of the appropriations so made, with the right to expect that the appropriation so made will be paid in full to discharge the obligation contracted for, out of the revenue provisions which by Section 2 of Article IX, supra, the Legislature is mandatorily directed to pass sufficient provisions of law to raise during the affected biennium for each fiscal year, and which it is presumed to have done until there has been a clear showing to the contrary.

On the other hand, the historical inception of Amended Section 9 of Article XII of the Constitution relating to appropriations of money to the county school funds of the several counties as state aid thereto, and the construction of it that has been consistently observed both before and after its ratification by the electors, has been and is that said amended section of the Constitution, even when read in connection with Section 1 of Article XII of the Constitution, imposes no mandatory duty on the Legislature to provide any direct appropriations at all to the county school funds, but simply confers on the Legislature a "power" to do so that it did not possess prior to the amendment. In short, the effect of Section 9 of Article XII, as amended in 1926, has been contemporaneously construed as enabling, but not requiring, the Legislature to make direct appropriations within its resources to the county school funds of the several counties in like manner as the Legislature was enabled, but not required, under Section 4 of Article XII of the Constitution to supplement the State School Fund (the interest only on which went to the counties) by making from time to time direct appropriations thereto.

In both Section 4 of Article XII and amended Section 9 of Article XII, the power given the Legislature to appropriate money to either the State School Fund or to the County School Fund is implied, and not direct, since the power exists solely because of the fact that "appropriations by the State" have been listed in the constituent elements of the several funds as being intended to be a part of same under the constitutional definition that has been made of such funds.

Thus, insofar as Section 9 of Article XII of the State Constitution has been definitely amended so as to confer the implied power on the Legislature to make an appropriation of state funds raised for state purposes to what has always been historically and legally heretofore considered a purely county purpose, viz.: County school fund purpose (State, ex rel. Bous, v. L'Engle, 40 Fla. 392, 24 Sou. Rep. 539) that section in its amended form constitutes a distinct exception to the constitutional rule stated in Amos v. Mathews, 99 Fla. 1, 136 Sou. Rep. 308, to the effect that "our Constitution contemplates that an exclusively state purpose must be accomplished by state taxation; an exclusively county purpose * * * by county taxation.

Specific constitutional exceptions to the "state purpose, county purpose" doctrine of taxation are to be found in Section 1, Article IX which permits intangible taxation to be "apportioned by the Legislature" for either state or county purposes; in Section 11 of Article IX which permits inheritance and estate taxes to be appropriated to any "county, municipal or educational purpose" as the Legislature may see fit," and in Section 13 of Article IX which permits motor vehicle license (tag) taxes to be levied for such purpose (including county or school purposes) as the "Legislature may, by law, provide," excise taxation and ad valorem property taxation, except as modified as above stated, remain within the "state purpose, county purpose" rule of the Amos v. Mathews case, supra. See also the special one mill tax under Section 6, Article XII, Constitution.

The so-called "parity" provisions of Section 5 of Chapter 17247, Acts 1935, if construed as contended for by some of the counsel appearing as amicus curiae in this case on behalf of the beneficiaries of those provisions, represents the first attempt in Florida's legislative history whereby the Legislature has to all practical intents and purposes, and in substantial effect, appropriated moneys to the County School Fund to be realized from other constitutional state appropriations already made (under Section 30 of Article III, Const.) They represent an attempt by the Legislature to set up a safeguard against the possible failure of some of the revenues anticipated from doubtful tax measures passed by it, which if same fail in whole or in part, may render the appropriation of the school revenues under Chapter 17247, supra, subject to a material diminution in amount, unless in order to offset diminution, the general state appropriations made by the general appropriation bill (Chapter 16772, Acts 1935) and other state appropriation laws passed to carry on the necessary functions of the state government can be constitutionally likewise diminished proportionately in order to release additional moneys for the county school fund appropriation equal in amount to the proportionate diminution of appropriations made to defray the current expenses of the state.

So a fundamental proposition involved in the determination of this litigation is whether or not the Legislature has any express, or necessarily implied, constitutional power as a Legislature to "provide for the liberal maintenance" of the county systems of public free schools, by means of the statutory scheme of appropriations to the County School Fund under amended Section 9 of Article XII in excess of revenues reasonably to be anticipated, and then setting up a statutory plan for recouping deficits in its revenue expectations by providing for their deduction from constitutional appropriations already duly made for the current expense of the state, by means of a deduction device.

Stated differently, can the Florida Legislature, by the simple device of deducting and simultaneously appropriating to the county school fund, a part of every lawful claim against the State for work done or materials furnished in reliance upon the State's general appropriation Act as an authorization for payment in full of same, thereby in effect impose and collect an undeterminate and fluctuating amount of tax on the face value of the State's lawful obligations to its current creditors, at the same time retaining to itself the full value of the consideration it has received?