Board of Public Instruction of Polk County v. Board of Com'rs of Polk County

• Decision Date: 26 October 1909
• Citation: 58 Fla. 391,50 So. 574
• Court: Florida Supreme Court
• Parties: BOARD OF PUBLIC INSTRUCTION OF POLK COUNTY v. BOARD OF COM'RS OF POLK COUNTY.

50 So. 574

58 Fla. 391

BOARD OF PUBLIC INSTRUCTION OF POLK COUNTY v. BOARD OF COM'RS OF POLK COUNTY.

Florida Supreme Court, Division A.

October 26, 1909

Appeal from Circuit Court, Polk County; J. B. Wall, Judge.

Bill by the Board of Public Instruction of Polk County against the Board of County Commissioners of Polk County. Decree for defendant, and complainant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

A Constitution may be amended by implication in the adoption of amendments that by fair intendment and meaning and in effect accomplish such a result.

Where there is a repugnancy between a constitutional amendment and some provision in the original, which cannot be so construed as to have them both stand and leave to each a legitimate office to perform, the original must be deemed to have been repealed by the amendment.

An 'amendment' of a Constitution repeals or changes some provision in, or adds something to, the instrument amended. Where an amendment is the last expression of the will and intent of the lawmaking power, duly exercised, such amendment is controlling, and prior provisions, inconsistent with or repugnant to the amendment, are modified or superseded to the extent of the inconsistency or repugnancy.

While implied repeals or amendments of Constitutions or laws are not favored, yet the primary consideration is to give effect to the lawful intent of the lawmaking power as duly expressed, and this should be done, even if it results in a repeal or modification of older inconsistent or repugnant provisions.

Where an amendment contains no express repeal or modification of existing provisions of law, the old and the new provisions should stand and operate together, if it can be done without contravening the intent of the lawmaking power as duly and fairly expressed in the later provision; but, to the extent that a fair construction or interpretation of the new provision discloses inconsistency with or repugnancy to an older provision, the later provision controls to effectuate the lawmaking intent.

In construing an amendment to the state Constitution, it is proper to consider the circumstances which led to the adoption of the amendment and the purpose designed to be accomplished.

The provision of section 9 of article 12 of the Constitution that 'the net proceeds of all fines collected under the penal laws of the state within the county' shall be a part of the county school fund, to 'be disbursed by the county board of public instruction solely for the maintenance and support of public free schools,' is repealed by the amendment to section 9 of article 16 of the Constitution adopted in 1894, requiring the counties to pay the legal costs and expenses of criminal prosecutions, and providing that 'all fines and forfeitures collected under the penal laws of the state shall be paid into the county treasuries of the respective counties as a general county fund to be applied to such legal costs and expenses.'

COUNSEL H. K. Olliphant, for appellant.

Wilson & Swearingen, for appellee.

OPINION

WHITFIELD C.J.

The appellant sought by bill in equity in the circuit court for Polk county to in effect require the appellee county commissioners to ascertain and pay into the school fund of Polk county the net proceeds of all fines collected under the penal laws of the state in said county.

A demurrer to the bill of complaint was sustained, and the bill dismissed. On appeal it is contended that the provision of section 9 of article 12 of the Constitution, that 'the net proceeds of all fines collected under the penal laws of the state within the county' shall be a part of the county school fund, to 'be disbursed by the county board of public instruction solely for the maintenance and support of public free schools,' is not affected by the amendment to section 9 of article 16 of the Constitution, adopted in 1894, requiring the counties to pay the legal costs and expenses of criminal prosecutions, and providing that 'all fines and forfeitures collected under the penal laws of the state shall be paid into the county treasuries of the respective counties as a general county fund to be applied to such legal costs and expenses.'

The amendment to section 9 of article 16 of the Constitution does not in terms purport to amend any other section or provision of the organic law; but a Constitution may be amended by implication in the adoption of amendments that by fair intendment and meaning and in effect accomplish such a result.

'Where there is a repugnancy between a constitutional amendment and some provision in the original,...