Mcsween v. State Live Stock Sanitary Board of Florida

• Decision Date: 09 May 1929
• Parties: McSWEEN et al. v. STATE LIVE STOCK SANITARY BOARD OF FLORIDA et al.
• Court: Florida Supreme Court

122 So. 239

97 Fla. 750

McSWEEN et al. v. STATE LIVE STOCK SANITARY BOARD OF FLORIDA et al.

Florida Supreme Court

May 9, 1929

En Banc.

Suit by J. C. McSween and others against the State Live Stock Sanitary Board of Florida and others. From an order denying temporary restraining order, and from a final decree sustaining a demurrer to the bill and dismissing the bill plaintiffs bring separate appeals.

Orders reversed and remanded.

Terrell C.J., and Brown, J., dissenting.

Syllabus by the Court

SYLLABUS

Provisions on single subject and matters germane thereto may be embraced in single act (Const. art. 3, § 16). Act may not embrace several unconnected subjects under Const. art. 3, § 16 relative to subject and title of statutes, but provisions on one subject and matters germane thereto may be embraced in the same act.

Statute relating to tick eradication among cattle held not void as providing for several subjects, or as containing provisions not germane to title (Acts 1923, c. 9201; Const. art. 3, § 16). Acts of 1923, c. 9201, relating to eradication of cattle fever tick and dipping of animals in connection with eradication process, held not void under Const. art. 3, § 16 as providing for more than one subject or containing in body provisions not connected with or germane to subject expressed in title, though act provides for compulsory arbitration of certain differences between owners of cattle and live stock sanitary board, and extends duties and powers of sheriffs and of state comptroller and treasurer.

Complainant cannot attack portion of statute not affecting him, unless its invalidity renders entire act unconstitutional, or renders inoperative other applicable portion. Complainant attacking validity of statute cannot raise objection to part of statute which is not involved in the case, unless its invalidity renders entire act unconstitutional, or renders inoperative such portion of the act as does injuriously affect his rights.

Provision requiring compulsory arbitration, if void, does not affect remaining portions of act for cattle tick eradication (Acts 1923, c. 9201). Provision of Acts 1923, c. 9201, for eradication of cattle fever tick, that certain differences which might arise between owners of cattle and live stock sanitary board and its officers should be submitted for compulsory arbitration, if void, under Const. art. 3, § 16 because not expressly referred to in title, held not to render entire act invalid, in view of section 19 thereof since it could not be said that the Legislature would not have passed the remaining portions of the act, had it known that this part would fall.

Partial invalidity does not render entire act invalid, if legislative purpose can be accomplished independent of unconstitutional portion. Fact that part of statute is unconstitutional does not render the entire act void, provided the legislative purpose as expressed in the valid portion can be accomplished independent of the unconstitutional portion, and it cannot be said that Legislature would not have passed valid portion, had it known that the invalid portion must fall.

Contentions not argued in brief are treated as abandoned. Where contentions of appellant are not argued in brief on appeal, they will be treated as abandoned.

Taxpayers could attack portion of act authorizing expenditure of public funds for incidental expenses in cattle tick eradication (Acts 1923, c. 9201, §§ 16, 17). Taxpayers in suit to restrain enforcement of Acts 1923, c. 9201, relating to eradication of cattle fever tick, could attack validity of sections 16 and 17 thereof, authorizing expenditure of public funds for incidental expenses of live stock sanitary board.

Sections authorizing comptroller to draw warrants on state treasurer for payment of monthly requisitions of live stock board held not void as requiring disbursement without countersigning by Governor (Acts 1923, c. 9201, §§ 16, 17; Const. art. 4, § 24). Acts 1923, c. 9201, §§ 16 and 17, authorizing comptroller to audit and draw warrant on state treasurer for amount of monthly requisitions of live stock board for expenses in connection with cattle fever tick eradication, held not violative of Const. art. 4, § 24, as requiring treasurer to disburse public funds under order of comptroller, without order being countersigned by Governor, as constitutional provision requires.

In absence of statute, quo warranto is exclusive method of determining right to public office. In absence of statute to contrary, quo warranto proceedings are exclusive method of determining right to hold and exercise public office, though doctrine does not apply if office was not validly created.

Complainants held not entitled in injunction suit to challenge title of members of live stock sanitary board for failure to possess required qualifications (Acts 1923, c. 9201, § 1). Complainants in suit for injunction to restrain enforcement of Acts 1923, c. 9201, relative to eradication of cattle fever tick, section 1 of which provides that live stock sanitary board shall be composed of seven practical live stock men resident citizens of the state of Florida, held not entitled to challenge title to office of duly appointed members of board because of failure to possess required qualifications; quo warranto being exclusive remedy.

Regulations of live stock sanitary board within authority conferred have force of statute (Acts 1923, c. 9201). General rules and regulations of live stock sanitary board under power conferred by Acts 1923, c. 9201, which creates board for purpose of eradicating cattle fever tick and requires it to make valid rules and regulations, have force and effect of statute, if within scope of authority conferred and reasonable and just and in accord with applicable organic provisions and limitations.

State 'officer,' as distinguished from employee, is one to whom portion of state's sovereign power is delegated with regular tenure of office. State 'officer,' as distinguished from employee, is one to whom portion of state's sovereign power is delegated as public trust to be executed in behalf of government with regular tenure, and not to a merely transient, occasional, or incidental employment.

Provisions attempting to create position of state veterinarian, and providing for his appointment by life stock sanitary board as its chief officer, held violative of constitutional provision requiring that officers be elected or appointed by Governor (Acts 1923, c. 9201, §§ 7, 11; Const. art. 3, § 27). Acts 1923, c. 9201, relative to eradication of cattle fever tick, held violative of Const. art. 3, § 27, requiring election or appointment by Governor of state officers, as to provisions of sections 7 and 11 of the Act, in so far as position of state veterinarian is attempted to be created as chief executive of live stock sanitary board, and in so far as act provides for his appointment and employment by board, since state veterinarian, in view of duties conferred by act, is officer.

Section of act for eradication of cattle fever tick, declaring that cattle in state were infested with tick, held not void as invading province of judiciary (Acts 1923, c. 9201, § 8). Acts 1923, c. 9201, relative to eradication of cattle fever tick held not void as invading province of judiciary as to section 8, which declares that territory and cattle in state are infested with cattle fever tick, and proceeds with further provisions based upon such determination, since prevalence of cattle fever tick at time of enactment of statute is matter of common knowledge.

Legislative determination of facts upon which validity of statute depends is generally acquiesced in by courts. The determination of facts upon which the validity or constitutionality of statutes depends is primarily for the Legislature, and courts will generally acquiesce in legislative decision as to such facts, unless it is clearly erroneous, arbitrary, or wholly unwarranted.

It is common knowledge that cattle in state at time of enactment of tick eradication act were generally infested with cattle fever tick causing Texas fever (Acts 1923, c. 9201). It is matter of common knowledge that at the time of the enactment of Acts 1923, c. 9201, relative to eradication of cattle fever tick, that cattle generally in the state, especially those running at large, were infested with the tick, and that infestation was and is the cause of Texas fever, a communicable and dangerous cattle disease.

Courts have no power to determine merits of conflicting theories upon which Legislature has assumed to pass in enacting statute. Courts have no power to determine merits of conflicting theories upon which Legislature has assumed to pass in determining necessity for particular legislation, and may not sustain or defeat legislation according to whether courts happen to approve or disapprove of the legislative determination.

On demurrer to bill attacking statute, validity of law must be tested in light of matters of which court takes judicial notice. On demurrer to bill, law attacked as unconstitutional is to be tested as to its validity by its language in light of such matters as are subject of judicial notice.

Statute declaratory of infestation of cattle with fever tick held not to deny due process for failure to give complainants opportunity for hearing (Acts 1923, c. 9201, § 8). Acts 1923, c. 9201, relative to eradication of cattle fever tick, held not invalid as to section 8 thereof, declaring that cattle in state are infested with tick, since failure to give complainants opportunity to be heard in determination of facts so declared did not constitute denial of due process.

That particular zones had been released from quarantine could be shown to Supreme Court by...