Department of Administration v. Horne, 41860

• Decision Date: 22 November 1972
• Docket Number: No. 41860,41860
• Parties: DEPARTMENT OF ADMINISTRATION et al., Appellants, v. Mallory E. HORNE et al., Appellees.
• Court: Florida Supreme Court

Page 659

269 So.2d 659

DEPARTMENT OF ADMINISTRATION et al., Appellants, v. Mallory E. HORNE et al., Appellees.

No. 41860.

Supreme Court of Florida.

Nov. 22, 1972.

Robert L. Shevin, Atty. Gen., and Daniel S. Dearing, Chief Trial Counsel, Tallahassee, for appellants.

Mallory E. Horne, Tallahassee, Frederick B. Karl, Daytona Beach, and Edward S. Jaffry, Lakeland, for appellees.

DEKLE, Justice.

This is an interlocutory appeal from Leon County Circuit Court, directly appealable because any final decree of the chancellor herein will of necessity pass directly upon the validity of a state statute. Fla. Const. art. V, § 4(2), F.S.A.; F.A.R. 4.2, 32 F.S.A.; Cramp v. Board of Public Instruction of Orange County, 118 So.2d 541 (Fla.1960); and Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961).

Appellees as plaintiffs below asserted that certain sections of the 1971 General Appropriations Act (Ch. 71-357, Laws of Florida 1971) are in violation of the Fla Const., 1968; they seek declaratory judgment against the various state agencies named as defendants (appellants here) and to enjoin the Comptroller from disbursing state funds authorized by these various "unconstitutional" provisions in the General Appropriations Act.

Fifty-five sections of the Act are attacked and all of them on the following three bases:

(1) It is an attempt to enact substantive law in an appropriations act in violation of Fla. Const. art. III, § 12, and earlier authorities of this Court. ¹

(2) The subject matter is not included in the Act's title, in contravention of Fla. Const. art. III, § 6.

(3) It constitutes "logrolling" which circumvents or curtails the Governor's veto power in violation of Fla. Const. art. III, §§ 8 and 12.

The able chancellor denied the motion to dismiss for failure to state a cause of action and for plaintiffs' not having standing to sue and the motion's further ground that there was not a justiciable controversy qualifying the complaint for declaratory judgment under the statute. This interlocutory appeal followed.

"Standing to sue" is the primary question here for our determination; answer to the further question as to whether the allegations meet the requirements for a declaratory judgment will generally follow that determination.

Appellees sue as "ordinary citizens and taxpayers"--not in their official and well-known roles as eminent members of The Florida Senate. It is our view that the determination of this matter should turn foursquare upon that very position; we believe that members of that august body would agree that they should not as legislators have "a second shot" before the judiciary on legislative decisions, having first "missed" in their legislative forum. It is therefore the taxpayer who is to be considered here as having a standing to sue or not.

Appellees cite Florida and sister state authorities allowing taxpayer attacks upon "unlawful expenditures." ² Appellants accept these authorities insofar as efforts to stop actual expenditures or levying of a tax is concerned but would distinguish "expenditure" and "appropriation" (as in the General Appropriations Act) which appellants see as only a "cutting of the pie" and not at all as "eating" it by the ultimate expenditure of funds. This seems to be a "distinction without a difference." We do not view the matter as turning upon whether or not it constitutes a direct "expenditure." We understand the distinction that the actual expenditure will not take place until the particular agency shall act upon it. That naturally follows, however, unless the agency chooses not to make the expenditure (a rather rare occurrence) or unless the money runs out--or unless a taxpayer stops it as illegal, the appellees' purpose here. If a taxpayer does not launch an assault, it is not likely that there will be an attack from any other source, because the agency involved is usually in accord with the expenditure. There may be instances in which the affected public official might pursue the matter. ³ The Attorney General would be an appropriate officer to bring such a suit, but in some instances this is not done and it is in such cases that it is only the taxpayer's attack which preserves the public treasure.

An "expenditure" is not made sacrosanct by the fact that it is placed in the General Appropriations Act. Once an appropriation is made, the expenditure follows administratively as a matter of due course--or at least in the usual case it does. The cited cases (footnote 2) would justify an attack on an improper "expenditure" which has been appropriated if the attack is otherwise well founded.

If we should immunize from attack the same provision hidden in a General Appropriations Act, then there would be no avenue of relief even if it were illegal, should the appropriate public officials choose not to sue.

It is recognized that reasonable and related conditions upon the same subject may be placed upon expenditures in an appropriations bill. Some of the appropriations here attacked may be in this category while others warrant review. The provisions are not before us on the merits but by way of illustration we note several of the challenged sections of the appropriations act which are questioned:

Section 1, Item 339, is as follows:

"Provided, however, it is the intent of the legislature that the division of motor pool shall activate a central motor vehicle pool and maintenance district II only by transferring positions, equipment and facilities in accordance with the plan of operations presented in the 1971-72 legislative budget request. Trust fund appropriations provide for 53 authorized current positions to be transferred from other Departments."

Section 1, Item 757, contains the following language:

"Provided, however, that in the activities of resource development and production pertaining to regulation and control of offshore oil and gas production funding will be provided only by raising drilling fee $50 and capping fee $35."

Section 13 contains the following language:

"The division of youth services of the department of health and rehabilitative services is hereby authorized to assume full responsibility for the operation of the juvenile detention home (Youth Hall) and the Kendall and Parkway Training Schools of Dade County, or any one or combination of these, as a pilot project to test the feasibility of state-operated detention and treatment facilities; provided, however, that the Metropolitan Dade County Commissioners shall:

"(1) complete its fixed capital outlay project to construct a new detention facility to replace the Walter H. Beckham Youth Hall; and ..."

Section 23 contains the following language:

"It is the intent of the legislature that the universities should make all efforts to increase productivity in teaching and place a lesser emphasis on administration and research activities. The productivity factors which resulted in faculty positions in this act are based upon this change of emphasis. Teaching productivity and skills as measured by objective criteria shall be the principal factor in granting tenure or continuing the employment of instructional personnel, and tenure, promotion and continued employment shall not be denied solely for failure to publish."

Section 24 contains the following language:

"The department of general services, division of building construction and maintenance, is hereby authorized to levy and assess the costs of supervision of the construction of every fixed capital outlay project, as owner-representative on behalf of the state, to be transferred to the architects incidental trust fund of said division from appropriate construction funds from time to time, subject to the approval of the department of administration."

Actual modifications of existing statutes or new provisions which are plainly substantive in nature and upon a subject other than appropriations are in violation of Fla. Const. art. III, § 12. Separate provisions impinging upon the expenditures set forth, which involve existing statutes and which should have been enacted as general legislation, are contrary to this constitutional safeguard prohibiting substantive law or additional subjects being enacted by way of an appropriations bill. This prevents such issues from being fairly debated and voted upon separately and, in some instances, avoids the authorized "line veto" of the Governor, thus accomplishing indirectly what could not be done directly.

There could in the guise of "appropriations" be designations inserted in the Act which could actually establish new agencies or projects incidental to the appropriation, if this principle were not strictly adhered to. Without benefit of the required general legislation first establishing such agency or project, such indulgence would deny the vital independent consideration by legislative committees and the general body, as to the validity or need for such agencies. It could also be a subtle approach to government "empire building". In such instances, the evil does not end with the fiscal year which first creates such an agency. Having been established, subsequent appropriations can be granted to it and the agency thereby perpetuated without ever having legitimate birth. Such indirect enactment of law is contrary to our principles of representative government.

All of these are valid reasons for allowing the exception which we hereby approve, limited to constitutional challenges on taxing and spending as earlier indicated.

Appellants point to the basic...