State Ex Rel. Landis v. Green

144 So. 681, 107 Fla. 335

• Court: Supreme Court of Florida
• Decided: November 30, 1932
• Status: Published

Opinions

Terrell, J.

This proceeding in quo warranto was brought by the Attorney General to ascertain by what right or authority the Respondents hold and exercise the duties, privileges and prerogatives of the Board of Commissioners o'f Halifax Hospital District. Respondents demurred to and entered their separate and several answers to the information and Eelators demurred to and moved to strike portions of the answer of the Eespondents.

These pleadings raise the following questions: (1) Does the Information state a cause o'f action, (2) Does the joinder of F. W. Pope and T. E. Fitzgerald as Co-relators, render the information fatally defective, and (3) Is the tenure of office provided by section two of chapter 11272 Acts of 1925 — creating Halifax Hospital District violative of section seven of article Sixteen of the Constitution of Florida?

The answer to question three is determinative of question orne, so we answer that question (three) first. Chapter 11272 Acts of 1925 clothes the Commissioners of Halifax Hospital District with such executive, administrative and discretionary duties as to make them officers under the law of this State. No' infirmity in the creation of this District has been pointed out, the assault on the Act being directed solely to the tenure of office of the Commissioners.

Section seven of Article sixteen of the Constitution inhibits the Legislature from creating any office, the term of which shall be longer than fohr years. Section two of Chapter 11272 Acts of 1925 in effect divides Halifax Hospital District into four Sub-Districts and provides for one Commissioner in each Sub-District except Sub-District Four which is allotted two Commissioners. It is further provided that the first Board of Commissioners shall be appointed by the Governor, the commissioners representing Sub-District one and three to be named for a term of four years, and the Commissioners representing Sub-District two and four to be named for a term of six years, all Co'mmissioners in each instance to hold until their successors are appointed and qualified. At the expiration of these terms all Commissioners shall be appointed by the Governor for terms of six years

Said (Commissioners being officers o'f the District, all provisions in the Act for their appointment for terms of six years must be held to be violative of Section seven of Article sixteen of the Constitution, mandatorily requiring that no office be created for a longer term than four years.) But (in view of Section Twenty and Section Twenty-one relative to the interpretation and the elimination of any unconstitutional parts of the Act, we think all provisions relative to six-year terms and appointments may be regarded as eliminated and the Act held valid as providing the appointment of all Commissioners for terms of four years.)

It is well settled that statutes may contain constitutional and unconstitutional provisions in the same section or sections that are distinct and may be severable. The test is whether or not the constitutional and unconstitutional provisions are inseparably connected. If the unconstitutional part can be stricken out and leave the constitutional part complete so that it can be executed according to the apparent Legislative intent, independent of the part rejected, it should be allowed to stand. Generally if the statute is designed to accomplish a single purpose and is invalid in part, it is invalid in toto, unless the valid portion is sufficient to' accomplish the Legislative purpose, without the aid of the invalid part. If it attempts to accomplish two or more objects and is void as to one it may still be valid as to the others. Harper vs; Galloway, 58 Fla. 255, 51 So. 226, Cooley Constitutional Limitations 211, Sinking Fund Commissioners vs. George 104 Ky. 260, 47 S. W. 779, 46 Corpus Juris 965. This holding is not in conflict with State ex rel. Swearingen vs. Jones, when Chapter 7921 Acts of 1919 was declared invalid because it created state officers and did not provide for their election by the people or appointment by the Governor as the Constitution directs.

The sole purpo'se of Section two of Chapter 11272 Acts of 1925 is to subdistrict Halifax Hospital District and to pro' vide for the terms and appointment of the Commissioners of said District. No other part of the Act is challenged, the relators lay no claim to the office brought in question, it is no't alleged that the Commissioners are attempting to do anything illegal, that the district is illegally organized, or that any one has been or is about to be injured thereby. The invalid portion may under such circumstances, be stricken and leave a workable, complete act and its very terms disclose a Legislative intent that this be done if the remaining part be valid and enforceable.

We therefore conclude that so much of Section two Chapter 11272 Acts o'f 1925, as provides for the term and appointment of Commissioners for Halifax Hospital District for six years is invalid and may be eliminated, but that such appointments may be validly made for terms of four years as contemplated by Section Seven of Article Sixteen of the Constitution. Sinking Fund Commissioners vs. George, 104 Ky. 260, 47 S. W. 779. Garrett vs. Commissioners of Limestone County (Texas), 230 S. W. 1010; Columbia Inv. Co. vs. Longbranch and Lakeside Special Road and Bridge District, 281 Fed. 342; People ex rel. Davidson vs. Perry, 79 Cal. 105, 21 Pac. 423; State ex rel. Lamar vs. Dillon, 42 Fla. 95, 28 So. 781. In this holding we are not unmindful of the contrary rule prescribed in Indianapolis Brewing Co. vs. Claypool, 149 Ind. 193, 48 N. E. 228, but we think the rule here approved is supported by the better reason.

On the question of whether or not the information states a cause of action, it is enough to say that where the Attorney General challenges the right to office it is only necessary to' allege generally that the occupant holds without lawful authority, but if the information sets up the facts on which the usurpation is predicated and such facts show a legal right in respondent, the information will be adjudged insufficient. Town of Enterprise vs. State, 29 Fla. 128, 10 So. 740.

In the instant ease the information pleads Section two of Chapter 11272, Acts of 1925, in bar of Respondents’ right to hold and exercise the duties and franchises imposed in them as commissioners of Halifax Hospital District. Relying solely on this Statute and its validity not having been successfully assailed, it follows that the information fails to state a cause of action, so' the writ of quo warranto' must be and is hereby quashed.

It is so ordered.

Buford, C.J. and Whitfield, Brown and Davis, J.J., concur. Ellis, J., dissents.