State Ex Rel. Atlantic Coast Line R. Co. v. State Bd. of Equalizers

• Citation: 94 So. 681,84 Fla. 592
• Parties: STATE ex rel. ATLANTIC COAST LINE R. CO. v. STATE BOARD OF EQUALIZERS.
• Decision Date: 20 November 1922
• Court: United States State Supreme Court of Florida

94 So. 681

84 Fla. 592

STATE ex rel. ATLANTIC COAST LINE R. CO. v. STATE BOARD OF EQUALIZERS.

Florida Supreme Court

November 20, 1922

Rehearing Denied Dec. 12, 1922.

Original mandamus by the State, on the relation of the Atlantic Coast Line Railroad Company, against the Board of Equalizers of the State of Florida, consisting of Cary A. Hardee, Governor, and others, to compel defendants to take jurisdiction of an appeal taken by plaintiff from the assessment and valuation by the Comptroller of the property of plaintiff for taxation.

Peremptory writ issued.

Whitfield and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Statute presumed constitutional until declared otherwise by court executive officer of government cannot declare statute unconstitutional or question it without showing injury to personal property, or rights. Every law found on the statute books is presumptively constitutional, until declared otherwise by the court, and an officer of the executive department of the government has no right or power to declare an act of the Legislature to be unconstitutional, or to raise the question of its constitutionality without showing that he will be injured in person, property, or rights by its enforcement.

Officers must obey law until constitutionality passed on. Officers must obey a law found upon the statute books until in a proper proceeding its constitutionality is judicially passed upon.

Oath to 'obey Constitution' strictly construed. Every act of the Legislature is presumptively constitutional until judicially declared otherwise, and the oath of office 'to obey the Constitution,' means to obey the Constitution not as the officer decides, but as judicially determined.

Right to declare act unconstitutional cannot be exercised by executive officers under guise of observance of their oath to support Constitution. The right to declare an act unconstitutional is purely a judicial power, and cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution.

Supreme Court will not pass upon constitutionality of law unless necessary. It is well settled that this court will not pass upon the constitutionality of a law in any case unless it is necessary to do so.

Court will not pass on constitutionality of statute on objection of one whose personal or property rights not affected. A court will not, as a general rule, pass upon a constitutional question and decide a statute to be invalid, unless a decision upon that very point becomes necessary, and it is also a rule that a court will not listen to an objection made to the constitutionality of a statute by a party whose personal or property rights it does not affect, and who has therefore, no interest in defeating it.

In proceedings against public officer involving performance of official duty inquiry limited to question of statutory duty. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform.

COUNSEL

W. E. Kay and Doggett, Christie & Doggett, all of Jacksonville, for relator.

Rivers Buford, Atty. Gen., for respondents.

OPINION

BROWNE C.J.

Upon the petition of the Atlantic Coast Line Railway Company, an alternative writ of mandamus was issued to the board of equalizers of the state of Florida, consisting of Cary A. Hardee, Governor, Rivers Buford, Attorney General, and J. C. Luning, State Treasurer, commanding them to take jurisdiction of an appeal taken by the relator from the assessment and valuation by the Comptroller of the property of the Atlantic Coast Line Railway Company for taxation for the year 1922.

The petition for the writ alleges that the Comptroller did value and assess the property of the Atlantic Coast Line Railway Company and give notice to the relator of such assessment and valuation; that the relator was dissatisfied with the valuation made by the Comptroller and did enter and file its appeal to the board of equalizers of the state of Florida as provided for in section 7, c. 8584, Acts of 1921, Laws of Florida.

The alternative writ also alleges that the respondents, the 'board of equalizers, held and decided that it had no jurisdiction of said appeal and declined to hear and entertain and determine the same, upon the ground that the title of the act constituting chapter 8584, Acts of 1921, Laws of Florida, was not sufficient to include the provisions of section 6 within such act.'

This the return admits, and the effect of this admission and the averment in the sixth paragraph of the return is that the respondents refused to obey sections 6 and 7 of chapter 8584, Acts of 1921, Laws of Florida, because they consider them unconstitutional. The sufficiency of this return is challenged by the motion for a peremptory writ.

This raises at the outset the question: Has a ministerial officer the right or power to declare an act unconstitutional, or to raise the question of its unconstitutionality without showing that he will be injured in person, property, or rights by its enforcement?

Every law found upon the statute books is presumptively constitutional until declared otherwise by the courts, and the allegation in the return that section 6 is unconstitutional means that it has been so declared by a court of competent jurisdiction.

This court therefore is confronted at once with the question, 'Is that allegation true?' Finding that it is not--the power to declare an act unconstitutional being lodged nowhere but in the courts--such an allegation in the return is no defense. We are therefore not called upon to pass upon the constitutionality of the act, because, it not having been declared unconstitutional by the courts, ministerial officers must obey it, until in a proper proceeding its constitutionality is judicially passed upon.

The question here presented is most important. It involves the right of a branch of the government, other than the judiciary, to declare an act of the Legislature to be unconstitutional.

When Mr. Chief Justice Marshall first laid down the doctrine that the judiciary was clothed with power to pass upon the constitutionality of legislative acts, it met with violent opposition. Great publicists, including Mr. Thomas Jefferson, Spencer Roan, Niles, of Niles' Register, and others denied the right of the courts to pass upon the constitutionality of a regularly enacted statute. Andrew Jackson also thundered against it.

For many years the doctrine expounded by Chief Justice Marshall seemed settled and secure, and no longer questionable. Recently a well-organized movement has been inaugurated in this country to take this power away from the courts, and at the recent election there were nearly 60 candidates for Congress who have pledged themselves to modify, if not to entirely abrogate, this great doctrine, without which governments limited by written Constitutions will be destroyed. Any tendency on the part of the courts to extend this doctrine and to recognize the right or power of ministerial officers to refuse to enforce a law found on the statute books, whether, in their judgment, it is unconstitutional, will give impetus to the movement to abrogate or limit this power of the courts.

The contention that the oath of a public official requiring him to obey the Constitution places upon him the duty or obligation to determine whether an act is constitutional before he will obey it is, I think without merit. The fallacy in it is that every act of the Legislature is presumptively constitutional until judicially declared otherwise, and the oath of office 'to obey the Constitution' means to obey the Constitution, not as the officer decides, but as judicially determined.

The doctrine that the oath of office of a public official requires him to decide for himself whether or not an act is constitutional before obeying it will lead to strange results, and set at naught other binding provisions of the Constitution.

An illustration--one not conjured by an active imagination, but potent with immediate possibilities--is this: Under section 28 of article 3 of the Constitution of Florida, the Governor may refuse to sign a bill that has passed the Legislature and 'return it with his objections to the house in which it originated, which house shall cause such objections to be entered upon its journal, and proceed to reconsider it; if, after such reconsideration, it shall pass both houses by a two-thirds vote of the members present, which vote shall be entered on the journal of each house, it shall become a law.'

Bills are frequently returned to the Legislature by the Governor without his approval, because in his opinion they are unconstitutional. That power is lodged in him, but it will be observed that it is a bill that has not yet become a law, and not a regularly enacted statute upon the constitutionality of which he expresses himself in his veto message. Having done this, and the Legislature upon reconsideration having passed the bill in both houses by the vote of two-thirds of the members present, what then becomes of the doctrine of the obligation or duty of a public officer to refuse to obey a law which he believes to be unconstitutional, but which has not yet been so declared by the courts? If it is sound, the passage of a bill over his veto is perfunctory, because under that doctrine the Governor would have to refuse to enforce the law that was passed over his veto. In fact the Governor need not return to the Legislature without his approval any bill that he believes to be unconstitutional. He may sign it, or let it...