State Ex Rel. Harrell v. Cone

• Decision Date: 06 October 1937
• Parties: STATE ex rel. HARRELL et al v. CONE, Governor, et al, (Washington County Case).
• Court: Florida Supreme Court

177 So. 854

130 Fla. 158

STATE ex rel. HARRELL et al v. CONE, Governor, et al, (Washington County Case).

Florida Supreme Court

October 6, 1937

On Rehearing Jan. 5, 1938.

En Banc.

Original mandamus proceeding by the State of Florida, on the relation of O. J. Harrell and others, against Fred P. Cone and others constituting the Board of Administration of the State of Florida, and others.

Motion to quash alternative writ of mandamus denied, the court being equally divided.

See also, State ex rel. Mayo v. Lee, 177 So. 876 State ex rel. Garrett v. Lee, 177 So. 877; State ex rel. Diamond v. Cone, 177 So. 878, State ex rel Wilson v. Cone 178 So. 869.

BUFORD and BROWN, JJ., dissenting in part, and ELLIS, C.J., dissenting.

COUNSEL H. H. Wells, B. K. Roberts, and William K. Whitfield, all of Tallahassee, Marion B. Knight, and John D. Trammell, both of Blountstown, Robert W. Robertson, of Bristol, and B. L. Solomon, of Marianna, for petitioners.

Cary D. Landis, Atty. Gen., H. E. Carter, J. Compton French, and W. P. Allen, Asst. Attys. Gen., J. Velma Keen, of Tallahassee, A. Frank O'Kelley, Jr., of Perry, and Waller & Meginniss, of Tallahassee, for respondents.

Pleus, Williams & Pleus, of Orlando, and John D. Trammell, of Blountstown, as amici curiae.

OPINION

TERRELL Justice.

The Legislature of 1937 enacted chapter 17967, authorizing the State Board of Administration to 'distribute and pay monthly to the county Road and Bridge Fund of Washington County all moneys appropriated to the use of the State Road Department for the construction within the said county of those State roads within said County which were heretofore designated as and recognized by the State Boad Department as being a part of the first, second or third preferential system of State Roads.' Section 1.

The State Board of Administration created by chapter 14486, Acts 1929 (Ex.Sess.), composed of the Governor, comptroller, and state treasurer, by a majority vote ordered the distribution as authorized by chapter 17967, but the comptroller, being the secretary of the board and having voted against the distribution, declined to draw his warrnat against the state treasurer to make it. This proceeding in mandamus was brought by C. W. Nelson, a citizen taxpayer, and the Board of County Commissioners of Washington County against the State Board of Administration and J. M. Lee, as comptroller and secretary of said board, and W. V. Knott, as state treasurer and county treasurer ex officio of Washington county, to compel them to distribute the funds to Washington county in compliance with the act.

J. M. Lee, as comptroller and secretary, moved to quash the alternative writ challenging the constitutional validity of chapter 17967. The Governor and the state treasurer filed a return signifying their willingness to comply with the commands of the alternative writ, but they assert that the comptroller had refused to draw a warrant upon the state treasurer to accomplish that purpose. The issue so made is before us for adjudication.

The first question with which we are confronted is whether or not J. M. Lee, as comptroller of the state and as secretary of the State Board of Administration, is empowered to challenge the constitutional validity of chapter 17967 in a proceeding of this kind.

The petitioners contend that this question must be answered in the negative, and rely on State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681, 683, 30 A.L.R. 362; County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 So. 471, 12 Am.St.Rep. 183; Adams v. American Agricultural Chemical Co., 78 Fla. 362, 82 So. 850; Land v. State, 77 Fla. 212, 81 So. 159; State v. City of Sarasota, 92 Fla. 563, 109 So. 473; City of Sebring v. Wolf, 105 Fla. 516, 141 So. 736; State ex rel. Alderman v. Beville, 107 Fla. 57, 144 So. 331; State ex rel. Clarkson v. Philips, 70 Fla. 340, 70 So. 367, Ann.Cas.1918A, 138; and State ex rel. McMullen v. Johnson, 102 Fla. 19, 135 So. 816, to support their contention.

We have examined these cases, and find much learning on the subject exemplified in them. The case of State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers is one of the leading cases in the country on the question, and is the one most strongly relied on. The majority opinion in that case, quoting from People ex rel. Attorney General v. Salomon, 54 Ill. 39, says that: 'This is the first case in our judicial history, in which a ministerial officer has taken upon himself the responsibility of nullifying an Act of the Legislature for the better collection of the public revenue.'

The theory of the majority opinion in that case is predicated on the ground that ministerial officers of the state had arrogated to themselves the judicial prerogative of nullifying an act of the Legislature. Nullifying an act of the Legislature is in fact a very different matter from challenging the constitutional validity of an act; the former being exclusively a judicial function, while the latter may be done by an officer or an individual under permissible circumstances, as we shall presently show.

In 30 A.L.R. at page 378, under annotations following State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers, supra, the subject, 'Unconstitutionality of statute as defence to mandamus proceedings,' is fully discussed and all the cases collected. From these cases, the general rule is deducted that a ministerial officer cannot in mandamus question the constitutionality of a statute imposing strictly ministerial duties on him that are subordinate in character and incidental to the main purpose of the act, when no injury can possibly result to him or the public by compliance with the act. This rule was recognized in the dissenting opinion of Mr. Justice Whitfield in the last-cited case, and was supported by many authorities.

A study of the cases in 30 A.L.R. 378, supra, reveals many exceptions to and departures from this general rule. If the terms of the statute imposing the duty are ambiguous and susceptible of more than one interpretation, the respondent officer in a mandamus proceeding to compel him to obey it may challenge the constitutional validity of the construction placed on it by the relator. State ex rel. Clark v. West, 272 Mo. 304, 198 S.W. 1111.

There is another line of cases which hold that since an unconstitutional act binds no one a ministerial officer affected by it may challenge its validity in any proceeding brought to require him to comply with it, whether his personal rights are affected by it or not. State ex rel. McCurdy w. Tappan, 29 Wis. 664, 9 Am.Rep. 622; State ex rel. University of Utah v. Candland, 36 Utah 406, 104 P. 285, 24 L.R.A. (N.S.) 1260, 140 Am.St.Rep. 834; Van Horn v. State, 46 Neb. 62, 64 N.W. 365; Brandenstein v. Hoke, 101 Cal. 131, 35 P. 562. The case of State ex rel. University of Utah v. Candland, supra, also supports the rule that if a ministerial officer is directly responsible for his official acts, he may challenge the constitutional validity of the act prescribing them in an action to compel him to comply with it.

There is a line of cases which hold that a ministerial officer may, as a defense to a proceeding in mandamus, raise the constitutional validity of an act imposing duties on him which are of general public interest. State ex rel. Hubbard v. Holmes, 53 Fla. 226, 44 So. 179; Wright v. Kelley, 4 Idaho 624, 43 P. 565; Ames v. People ex rel. Temple, 26 Colo. 83, 56 P. 656.

Many cases hold that if an act requires a ministerial officer to perform duties particularly affecting him personally, as where he will violate his oath of office if he performs them, or where he is charged with the control and disbursement of public funds, his official capacity gives him such an interest in the matter that he may challenge the validity of the act in mandamus. State ex rel. Russell v. Barnes, 25 Fla. 75, 5 So. 698; State ex rel. Wiston County v. Snyder, 29 Wyo. 163, 212 P. 758; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A. (N.S.) 183, Ann.Cas.1914B, 1278; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L.R.A. (N.S.) 466; Commonwealth ex rel. Attorney General v. Mathues, 210 Pa. 372, 59 A. 961; State ex rel. Miller v. Leech, 33 N.D. 513, 157 N.W. 492; Rhea v. Newman, 153 Ky. 604, 156 S.W. 154, 44 L.R.A. (N.S.) 989; Stockman v. Leddy, 55 Colo. 24, 129 P. 220, Ann.Cas.1916B, 1052; Denman v. Broderick, 111 Cal. 96, 43 P. 516.

The case under review falls easily within the rule last supported, and some of the cases cited go so far as to hold that when, in the performance of an act imposed by statute, an officer is required to violate his oath of office to support the Constitution, in any way jeopardizes the interest of the public, or otherwise render himself liable for breach of duty, he should, in justice to himself and the public, be entitled to raise the constitutional valicity of the act in mandamus to compel performance.

But the comptroller, as such, and as Secretary of the Board of Administration, is more than an administrative officer. Section 23 of article 4 of the Constitution requires him to examine, audit, adjust, and settle the accounts of all officers of the state, and section 142, Compiled General Laws of 1927, makes it his duty to examine, audit, and settle all accounts, claims, and demands whatsoever against the state arising under any law or resolution of the Legislature, and to draw his warrant on the state treasurer for such amount as he may allow. These provisions apply to amounts disbursed under the Board of Administration Act, and, in the absence of the rule as stated, would authorize the...