State ex rel. Ball v. Robinson

• Decision Date: 15 April 1941
• Parties: STATE ex rel. BALL v. ROBINSON, Superintendent of Public Instruction of Hillsborough County, et al.
• Court: Florida Supreme Court

1 So.2d 621

146 Fla. 615

STATE ex rel. BALL v. ROBINSON, Superintendent of Public Instruction of Hillsborough County, et al.

Florida Supreme Court

April 15, 1941

Rehearing Denied April 30, 1941.

Appeal from Circuit Court, Hillsborough County; L. L Parks, judge.

Bryan & Bryan, of Tampa, for plaintiff in error.

Luther W Cobbey and John M. Allison, both of Tampa, for defendants in error.

BROWN, Chief Justice.

The State of Florida, on the relation of Frank Ball, relator, suing for himself and others similarly situated, filed in the Circuit Court of Hillsborough County, on September 23, 1940, its petition requesting the court to issue its alternative writ of mandamus, directed to the respondents, who constitute the Board of Public Instruction of Hillsborough County, together with the Superintendent of Public Instruction, and the Board of Trustees of Special Tax School District No. 53, requiring them 'to revoke and vacate the order closing Sun City School; and ordering the said respondents to reopen said Sun City School and to replace all equipment moved from the Sun City School and to retransfer such funds of the Special Tax School District No. 53 back to the proper fund as have been used otherwise and to reinstate said Sun City School in the same standing in which it has heretofore been operated or to show cause before this honorable court at a date to be set in said writ why the respondents should not do so.' An order to show cause was duly entered by the Circuit Court on September 23rd and the respondents on October 10, 1940, filed their answer or return to the rule nisi, asking the dismissal of the writ, the substance of the ground for dismissal being that the respondents, in all the acts as averred and set forth in the alternative writ of mandamus, were acting strictly in compliance with the provisions of law and the Florida School Code, Chapter 19355 Acts of 1939.

The relator moved to quash the return or answer and to enter a peremptory writ of mandamus upon the grounds that the respondents had admitted by their answer all averments of the petition and that such actions conflicted with Article XII, sections 10 and 17 of the Florida Constitution, although purportedly done pursuant to the authority of the Florida School Code, supra.

The court denied the motion and upon the relator refusing to plead further dismissed the action. From this order of dismissal, the relator brings this writ of error.

The order dismissing the relator's petition is a final judgment from which writ of error will lie. State v. Croom, 62 Fla. 284, 57 So. 420; State v. Goodson, 65 Fla. 475, 62 So. 481.

It appears from the record that Special Tax School District No. 53 in Hillsborough County was properly created and organized in the manner and form prescribed by Article XII, section 10, Constitution of Florida. Upon the establishment of this Special Tax School District, a school building was built and equipped at an expense of approximately $30,000 and a public free elementary school was operated in the district, funds for the operation of the school being derived from the State Teachers Salary Fund supplemented by the General Fund of Hillsborough County and an annual millage levy against taxable lands in the district. For several years the school was operated as a two-teacher school, there being approximately sixty children of school age within the district. Thirty-five to forty children attended the Sun City elementary school within the district and the balance were transported to Wimauma High School which was in another district of the same county. The Sun City elementary school was ordered discontinued for the school year 1940-41 by the Board of Public Instruction for Hillsborough County, pursuant to the provisions of Section 423, subsection (6), (c) of the Florida School Code, upon the recommendation of the Superintendent of Public Instruction and with the consent of the Trustees of Special Tax District No. 53.

The respondents below, in the order closing the Sun City school, ordered the children of the district to be transported to the Wimauma School and transferred the equipment and funds (with the exception of $100) of the Sun City school to the Wimauma School. It is charged by the relators that this amounts to an attempt to consolidate the two districts without ordering and holding an election as required by law for the purpose of consolidating the two districts. The respondents, on the other hand, contend that they have full power and authority granted to them by the Legislature (Florida School Code, supra) to do the acts necessary to effect a discontinuance of the Sun City school and to require the pupils of that school to attend the Wimauma School, transportation being provided for that purpose.

The question thus presented by the record is whether or not a school in a Special Tax School District, created and organized pursuant to Article XII, section 10 of the Constitution, may be eliminated and consolidated with a school in another district without requiring an election for that purpose.

Section 10 of Article XII is 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.'

It will be noted that the Constitution vests full power in the Legislature to provide for the division of a county or counties into school districts. The inhibition of the Constitution is against the levying and collection of a tax without the consent and approval of the qualified electors of the district. See Bronson v. Board of Public...