Board of Public Instruction of Hendry County v. State ex rel. Hilliard, 6785

• Decision Date: 28 January 1966
• Docket Number: No. 6785,6785
• Citation: 188 So.2d 337
• Parties: The BOARD OF PUBLIC INSTRUCTION OF HENDRY COUNTY, Florida, a body corporate, and Floyd T. Christian, Superintendent of Public Instruction of the State of Florida, Appellants, v. STATE ex rel. Joe A. HILLIARD, Appellee.
• Court: Florida District Court of Appeals

Page 337

188 So.2d 337

The BOARD OF PUBLIC INSTRUCTION OF HENDRY COUNTY, Florida, a body corporate, and Floyd T. Christian, Superintendent of Public Instruction of the State of Florida, Appellants, v. STATE ex rel. Joe A. HILLIARD, Appellee.

No. 6785.

District Court of Appeal of Florida, Second District.

Jan. 28, 1966.

Rehearing Denied March 1, 1966.

Clarence Boswell, of Boswell & Boswell, Bartow, for Board of Public Instruction of Hendry County.

Earl Fircloth, Atty. Gen., and Fred M. Burns, Asst. Atty. Gen., Tallahassee, for Superintendent of Public Instruction.

Julian Clarkson, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.

HOBSON, Judge.

Appellants, respondents below, brought this appeal from a final judgment in a mandamus proceeding. The appellee, petitioner below, filed a cross-appeal. The appellant, the Board of Public Instruction of Hendry County, Florida, will be referred to herein as School Board.

The facts are not in dispute. Hendry County is in itself one school district under § 10, Art. XII, of the Florida Constitution, F.S.A. For the 1964--65 fiscal year which ended June 30, 1965, the School Board certified for levy the maximum lawful millage of 20 mills; 10 mills for the county current school fund (§ 8, Art. XII, of the Florida Constitution) and 10 mills for the district current school fund (§ 10, Art. XII, of the Florida Constitution). The taxpayers qualified to vote in the biennial school millage election in November 1963 approved the constitutional maximum of 10 mills for the district fund for the 1964--65 and 1965--66 fiscal years (§ 10, Art. XII, of the Florida Constitution).

Twenty mills on the 1964 tax roll brought the School Board for budget purposes about $420,500.

In preparing the Hendry County Tax roll for 1965, the Hendry County Tax Assessor assessed all real and personal property in the county according to the criteria prescribed in § 193.021, Florida Statutes, F.S.A., in such manner as to increase the general level of assessed value over the preceding year from $26,919,766 to $78,882,499. ¹

In compliance with the requirement set forth in § 193.03(6), Florida Statutes 1963, F.S.A., the Tax Assessor on or about August 1, 1965, certified to the School Board a tax reduction ratio of 2.93.

Application of this ratio to the 20 mills levied for school purposes against the 1964 roll would result in a reduced total millage (county and district) of 6.826 mills, or 6.85 mills when carried to the nearest two-decimal figure. This millage on the elevated 1965 roll would have produced for budget purposes to the School Board about $499,048, or an increase over the preceding year of 19%. The School Board, however, adopted a resolution on August 12, 1965 establishing the county millage at 3 mills and the district millage at 5.5 mills, or a total school millage of 8.5 mills for the 1965--66 fiscal year. This millage on the elevated 1965 roll brought the School Board for budget purposes about $619,258, or a 47% Increase over the budget for the preceding year.

Appellee obtained an alternative writ of mandamus from the Hendry County Circuit Court on August 26, 1965 directing the School Board to reduce its millages to the maximum permitted by § 193.03, Florida Statutes, F.S.A., or to show cause why the peremptory writ should not issue. After a hearing held October 4, 1965, the Circuit Court entered the final judgment appealed which held that 8.5 mills was excessive and illegal under the law but denied the peremptory writ because of the 'probability of great confusion and disorder in the operation of school affairs in Hendry County.'

The appellants' contentions may be stated as follows: (1) § 193.03, Florida Statutes 1963, F.S.A., is unconstitutional because it requires the reduction of a district school millage which has been fixed by an election pursuant to § 10, Art. XII, of the Constitution; (2) if F.S. § 193.03, F.S.A.1963, is constitutional and the School Board reduces its millage in accordance therewith it may then increase the millage under either F.S. § 193.03, F.S.A.1963, of F.S. § 237.05, et seq., F.S.A.1965, or under both when read in pari materia.

The appellee contends that the trial court erred when it denied him a peremptory writ of mandamus on the ground that to do so would probably create great confusion and disorder in the operation of school affairs in Hendry County.

We will discuss these contentions in the order in which they appear above.

The law of Florida has long been established that every presumption is in favor of the constitutional validity of an act of the Legislature and the appellants in this case have the burden to clearly show that F.S. § 193.03, F.S.A., is in positive conflict with § 10, Art. XII of the Florida Constitution. Grova v. Baran, Fla.App.1961, 134 So.2d 25; Gaulden v. Kirk, Fla.1950, 47 So.2d 567; Ex parte Messer, 1924, 87 Fla. 92, 99 So. 330.

The Florida Constitution, § 10, Art. XII, provides as follows:

'The Legislature may provide for the division of any county or counties into convenient school districts; and for the election biennially of three school trustees, who shall hold their office for two years, and who shall have the supervision of all the schools within the district; and for the levying and collection of a district school tax, for the exclusive use of public free schools within the district, whenever a majority of the qualified electors thereof that pay a tax on real, or personal property shall vote in favor of such levy; Provided, that any tax authorized by this section shall not exceed ten mills on the dollar in any one year on the taxable property of the district.'

This constitutional mandate places two restrictions on the Legislature as to the district millage: (1) there shall be no levy whatsoever unless A levy regardless of the amount of millage is approved by a majority of the qualified electors within the district that pay a tax on real or personal property, and (2) the levy shall not exceed ten mills. It does not Require the qualified electors by their majority vote to establish the Amount of millage to be levied.

Under the above restrictions the Legislature has enacted an implementing statute, § 236.32, which allows the qualified elector to vote for the estimated millage levy found necessary by the county school board or any millage levy he desires between 0 and 10. In addition, the Legislature has enacted another implementing statute, § 236.33, which the appellants contend is constitutional and was relied upon by the appellant, School Board, to reduce the 10 mills approved by the qualified electors in 1963 under § 10, Art. XII, of the Constitution, to 5.5 mills. F.S. Section 236.33, F.S.A., reads as follows:

'The county board shall certify and spread upon its minutes a resolution stating the tax levy approved by the voters in each school district election in the county and such taxes shall be certified, assessed, and collected as prescribed in § 237.18 and shall be expended as provided by law; provided, however, that the county board, with the consent of the state superintendent of public instruction, where it is plainly manifest from the county school budget that there are ample available funds from other school revenue sources to meet the requirements of the obligations of the tax school district, may reduce the tax levy approved by the voters in the school district election.'

Certainly if the levy approved by the voters in the school district election can be Constitutionally reduced under the authority of F.S. § 236.33, F.S.A., then F.S. § 193.03, F.S.A.1963, which reads in part:

'After the assessment rolls have been prepared on the basis required by law, the board of county commissioners and the board of public instruction and all other governing boards or governing authorities of all other taxing districts, within the counties including municipalities, whose taxes are assessed on the tax roll prepared by the county assessor, shall for the fiscal years 1963--1964 through 1972--1973, inclusive, reduce the millage to be levied by each such governing authority from what it was in the preceding year proportionate to the increase of the general level of assessed value over the preceding year.'

is also constitutional in that said statute provides for the reduction of the millage levied by the Board of Public Instruction (which includes the millage levy approved by the qualified electors under § 10, Art. XII of the Constitution) proportionate to the increase in the general level of assessed value over the preceding year.

Our research discloses no case directly determining the constitutionality of F.S. § 193.03 or § 236.33, F.S.A.

In Chase v. Board of Public Instruction, 1951, 52 So.2d 122, our Supreme Court was called upon to determine whether or not the Dade County Budget Commission had the power to reduce the millage levy approved by the qualified electors as provided by § 10, Art. XII, of the Constitution. In that case it was held on pages 124 and 125:

'It is next contended that the Commission was without power to reduce the nine-mill tax levy on the taxable property within the special tax school district (Dade County) because said tax was imposed by a vote of the freeholders in the manner provided by Sections 10 and 11, Article XII of the Constitution.

'We construe the final decree to hold that it is beyond the power of the Budget Commission to reduce the millage fixed by the freeholders, as authorized by Article XII of the Constitution. We think the chancellor was correct in this holding. Section 236.33, F.S.A., authorizes the Board of Public Instruction to reduce the tax levy approved by the freeholders if it is shown that there are ample available funds for school purposes from other revenue sources. * * *

'It was, however, entirely within the power and authority of the Budget Commission to change, alter, amend, increase, or decrease any item and total amount or amounts of the...