Westlake v. Merritt

95 So. 662, 85 Fla. 28

• Court: Supreme Court of Florida
• Decided: January 10, 1923
• Status: Published

Opinions

Browne, J.

The plaintiff in error, Luella Westlake, was arrested in Duval county, Florida, charged with practicing Chiropractic without having first obtained a certificate from the Florida Board of Chiropractic Examiners, contrary to the provisions of Chapter 7821; Laws of Florida, Acts of 1919.

The petition attacks the constitutionality of Chapter 7821, alleging that it is in violation of Sections 25 and 27 of Article 3 of the Constitution of Florida.

A demurrer to the petition was sustained, and the constitutionality of the act upheld and the prisoner remanded to custody of the Sheriff of Duval County.'

The case is before this court on writ of error.

Section 1 of the Act provides for the creation of “The Florida State Board of Chiropractic Examiners, ’ ’ and defines their qualifications.

Section 2 provides: “The members of said Board shall be appointed by the Governor from a list of at least ten to be recommended by the Florida Chiropractors Association, and said appointments shall be made' as soon as practicable after this Act becomes a law. ’ ’ >

Section 27 of Article 3 • of the Constitution of Florida ordains that “The legislature shall provide for the election by the people or appointment by the Governor of all state and county officers not otherwise provided for by this constitution, and fix by law their duties and compensation. ’ ’

The members of the Board of Examiners are officers under the decisions of this court. See State ex rel. Clyatt v. Hocker, 39 Fla. 477, 23 South. Rep. 721. The act does not provide for their election. It pretends to lodge .the appointing power with the Governor, but seeks to limit his constitutional prerogative by vesting in the Florida Chiropractors Association the right to confine the Governor in his appointments to three out of ten persons to be recommended by them. To a certain degree, this empowers the Florida Chiropractors Association to share with the Governor the appointing power, which is lodged solely in him by the Constitution.

If the act required the Governor to appoint any three persons recommended to him by the Association, it is palpable that the appointing power would be exercised by the Association and not by the Governor who ■ would merely ratify their selections. If the legislature had power to limit the Governor in-the exercise of his appointing power to ten persons recommended by the Association, it could as well limit him to three. The fact that ten instead of three is the number designated by the legislature, in no way affects the principle, and is a matter of degree only.

It is apparent that the appointing power of the Governor would be limited and controlled by the Florida Chiropractors Association, and an appointment made by the Governor under such circumstances would be merely the ratification or confirmation of certain selections made by the Association, and not an exercise by the Governor “of his exclusive constitutional right of appointment.

The unconstitutionality of the attempted limitation upon the appointive power of the Governor is made more obvious by applying the same limitation to officers to be elected by the people.

Would the act have been constitutional if the legislature had made the members of the Board of Chiropractic. Examiners elective, and limited those to be voted for to ten or three persons to be selected by the Chiropractors ’ Association? Obviously not, and there is no more warrant for placing such a restriction upon the appointive power of the Governor, than on the elective power of the people, both being in the same sentence in Section 27 of Article 3 of the Constitution.

Chapter 7821 regulating the practice of Chiropractic relates to the duties and powers of the Board of Chiropractic Examiners, and the penalties provided for in the law are for acts, the criminality of which depends upon the validity of Sec. 2. Without this section, there is nothing for the other provisions of the act to be operative upon. It follows, therefore, that Sec. 2 being unconstitutional, the entire act must fall.

In view of our decision that Section 2 is in violation of Sec. 27 of Art. 3 of the Constitution, it is unnecessary to decide if it is violative of Sec. 25 of Article 3.

The judgment is reversed and the prisoner will be discharged.

Taylor, C. J., and Whitfield, J., concur. Ellis and West, JJ., dissent. Whitfield, J., concurring.

Section 27, Article III of the State Constitution was not referred to or considered in Rasmussen v. Tippins, 83 Fla. 530, 91 South. Rep. 560, in which case the constitutionality of Chapter 7821, Acts of 1919, was challenged upon other specified grounds.

The general provision of Article II of the State Constitution that the powers of government shall be divided into three departments and that no person properly belonging to one of the departments shall exercise any power appertaining to either of the others, except in cases expressly provided for by the constitution, may not make the appointment of officers an exclusively executive power or function; and unless other organic provisions control the legislative department may exercise itself or authorize officers of either of the other departments to exercise the power to appoint statutory officers and may make such authority restrictive or absolute, within organic limitations. See 12 C. J. 898, Sec. 402; Ingard v. Barker, 27 Idaho 124, 147 Pac. Rep. 293; Richardson v. Young, 122 Tenn. 471, 125 S. W. Rep. 664; Little v. Willimon, 103 S. C. 50, 87 S. E. Rep. 435. But where the constitution in express terms confers upon the Governor the power to appoint all officers that may be appointed and are not otherwise provided for by the constitution or by laws made pursuant to'constitutional authority on the particular subject, the legislature cannot directly or indirectly or under the guise of prescribing qualifications, limit or encroach upon the power of the Governor to appoint officers tO' fill statutory offices by designating other authority to participate in selecting or in hampering the exercise of executive judgment in making selections for appointment to office. See State v. Washburn, 167 Mo. 680, 67 S. W. Rep. 592, 90 Am. St. Rep. 430; State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S. W. Rep. 823, Ann. Cas. 1915A 588. If the statute is invalid the Governor alone appoints under the Missouri constitution. Séc. 11, Art. 5. This does not prevent the legislature from prescribing qualifications for statutory officers or reasonable regulations as, to place and length of residence of officers who properly should be chosen from different parts of the State as in State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929. In cases like State v. Frear, 34 L. R. A. (N. S.) 480, the legislative power was hot restrained by specific organic provision, as in this case.

Section 27, Article III, commands that “The legislature shall provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this constitution.” Under this express mandatory organic provision all offices created by statute must be filled by officers who are either elected ‘ ‘"by the people” or who are appointed “by the Governor.” This provision denies to the legislature the power to authorize any other person, officer or agency to participate in or to limit or curtail the exercise of the executive judgment of the Governor in selecting persons for appointment from among those having proper and adequate qualifications as to age, residence, attainments or otherwise within appropriate bounds. See also Section 7, Article IV, of the State Constitution. The controlling organic provision in this case is very different from the one considered in 143 Cal. 412, 66 L. R. A. 249.

If Chapter 7821, Acts of 1919, be valid, its provisions for the creation and establishment of a “State Board of Chiropractic Examiners,” would create State offices. See State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 South. Rep. 721, 63 Am. St. Rep. 174; State ex rel. v. Jones, 79 Fla. 56, 84 South. Rep. 84. The duties imposed are not in aid of legislative functions that may be performed by the legislature alone. See Chapter 6930 Acts 1915.

Section 2 of the Act is as follows: “The members of said Board shall be appointed by the Governor from a list of at least ten to be recommended by the Florida Chiropraetors Association, and said appointment shall be made as soon as practicable after this Act becomes a law.” This creates new offices and does not merely confer additional duties upon officers already provided for. See Kilgour v. Drainage Commissioners, 111 Ill. 342; Whitaker v. Parsons, 80 Fla. 352, 86 South. Rep. 247.

The provisions of Section 2 that the members of the Board “shall be appointed by the Governor from a list of at least ten to be recommended by the Florida Chiropractor Association” (italics supplied), clearly attempts to curtail and limit the exercise of the Governor’s executive judgment and discretion in selecting for appointment from among persons who are qualified for appointment under the provisions of the Act itself, no questions of personal attainment or residence being involved. The attempted limitation of the executive power of selection and appointment of the members of the Board from among all who may be qualified under the statute, by requiring the appointments to be made “from a list of at least ten to be recommended by the Florida Chiropractor Association,” is a clear violation of Section 27, Article III, of the constitution which expressly commands that unless the election of such officers “by the people” is provided for, they shall be appointed “by the Governor.”

If the attempted limitation upon the Governor’s constitutional power, which is invalid, could be eliminated with-, out causing results clearly not intended by the legislature in the enactment, and the remaining provisions would be valid and operative, such partial invalidity might be declared and such elimination might be made by the court. But the provisions of the enactment are peremptory that “the members of said Board shall be appointed by the Governor from a list of at least ten to be recommended by the Florida Chiropractic Association, ’ ’ Section 2; and that ‘ ‘ all appoinments made by the Governor to fill vacancies on said Board shall be made in accordanace with the provisions and.requirements of this Act,” Section 3; and “in accordance with the provisions of this Act with reference to the * recommendations for appointment as members thereof as hereinbefore provided,” Section 29. These provisions clearly show an intent to limit the Governor’s power of appointment in a manner that violates organic law, which renders the entire Act invalid, since to disregard the limitations would cause results not intended by the legislature. State v. Patterson, 50 Fla. 127, 39 South. Rep. 398; State ex rel. West v. Hilburn, 70 Fla. 55, 69 South. Rep. 784; Connoly v. Union Sewer Pipe Co., 184 U. S. 540; 81 Fla. 211.

The statute contains no provision that should any portion thereof be for any reason invalid, such portion should be regarded as eliminated and the remainder of the Act effectuated, as is provided in section 14% of Chapter 8410, section 30, Chapter 6456, and section 49, Chapter 7430, and other statutes.

The settled rule of statutory construction is that if the obnoxious section or part of a statute is of such import that the other sections or parts without it would cause results not contemplated or desired by the legislature, then the entire statute must be held inoperative. State v. Patterson, 58 Fla. 127, 39 South. Rep. 398; Connolly v. Union Sewer Pipe Co., 184 U. S. 548, 22 Sup. Ct. Rep. 431; Spires v. State, 50 Fla. 121, 39 South. Rep. 181, 7 Ann. Cas. 214; State ex rel. West v. Hilburn, 70 Fla. 55, 69 South. Rep. 784; State ex rel. Buford v. Spencer, 81 Fla. 211, 87 South. Rep. 634; McFarland v. American Sugar Refining Co., 241 U. S. 79, 36 Sup. Ct. Rep. 498; International Text Book Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. Rep. 481; Williams v. City of Talladega, 226 U. S. 404, 33 Sup. Ct. Rep. 116; Sprague v. Thompson, 118 U. S. 90; 6 R. C. L. 124; 292 Ill. 236, 18 A. L. R. 929; 39 Fla. 477; 79 Fla. 56.

In State ex rel. Attorney General v. Dillon, 32 Fla. 545, 14 South. Rep. 383, the election commissioners appointed by the legislature were held to be not officers' within the meaning of Section 27, Art. Ill of the Constitution. In State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 South. Rep. 929, the statute did not limit the executive’s power to appoint except as “to place and length of residence” and this was held to be permissible, no other authority being authorized to participate in the selection for 'executive appointment/

In Hadley, State ex inf. v. Washburn, 167 Mo. 680, 67 S. W. Rep. 592, the invalidity of the statute affected only one of three election commissioners, if they may be considered officers, and the organic provision violated forbad the granting by the legislature of “any special or exclusive right, privilege or immunity. ’ ’ The construction gave the Governor power to appoint in such cases. Sec. 11, Art. 5, Missouri Constitution. 265 Mo. 26.

In Clayton v. Utah Territory, 132 U. S. 632, 10 Sup. Ct. Rep. 190, the statutory mode of appointment of a State officer was held invalid though the office remained; and the organic law provided that such, officer should be chosen in one way only, viz., appointed by the Governor and confirmed by the Territorial Council. See also State v. Dineen, 265 Mo. 26, Ann. Cas. 1916D, p. 1. Our organic law provides that the officer shall be elected by the people or appointed by the- Governor. If the limitation that the Governor shall appoint the three members* of the Board “from a list of at least ten to be recommended by the Florida Chiropi’actic Association,” be regarded as eliminated from the Act, then tbe appointment would be authorized to be made in a manner contrary to the legislative intent as shown by repeated express provisions; and if the entire provision giving the Governor authority to appoint the members of the Board be eliminated, then the legislature has not provided for either an election by the people or an appointment by the Governor of the members of the Board, therefore the Act is inoperative. The legislature must provide one or the other of the constitutional means of selecting an officer.

The invalid portions of Chapter 7821 are of such nature' and effect as not to be so clearly separable from the other provisions leaving the other portions inoperative as to permit the courts to effectuate the legislative intent notwithstanding the elimination of the invalid portions, as in Donald v. State, 31 Fla. 255, 12 South. Rep. 695; English v. State, 31 Fla. 340, 12 South. Rep. 689; Carr v. Thomas, 18 Fla. 136; Harper v. Galloway, 58 Fla. 255, 51 South. Rep. 226; Stinson v. State, 63 Fla. 42, 58 South. Rep. 722; State ex rel. Clarkson v. Phillips, 70 Fla. 340, 70 South. Rep. 367; Prairie Pebble Phos. Co. v. Silverman, 80 Fla. 541, 86 South. Rep. 508, and other cases.

When a portion only of a statute is unconstitutional, and the remainder is operative to accomplish the p^irposes as designed by the legislature, it may be executed to effectuate the legislative intent; but if the valid portions will if enforced cause results that are contrary to the legislative intent as to an essential portion of the enactment, the courts will not enforce the valid portions, for to do so would in effect be a usurpation of legislative functions, unless .it appears from the entire statute that it would have been enacted without the invalid portions had such invalidity been anticipated or appreciated, or unless the statute provides that invalid portions thereof may be eliminated and the remainder made effective, or unless an organic provision controls.