State Ex Rel. Landis v. Blake

• Decision Date: 09 January 1933
• Citation: 110 Fla. 178,148 So. 566
• Parties: STATE ex rel. LANDIS, Atty. Gen. v. BLAKE.
• Court: Florida Supreme Court

148 So. 566

110 Fla. 178

STATE ex rel. LANDIS, Atty. Gen. v. BLAKE.

Florida Supreme Court

January 9, 1933

On Rehearing May 10, 1933.

On Rehearing.

En Banc.

Quo warranto proceeding by the State, on the relation of Cary D Landis, Attorney General, against Charles F. Blake.

Demurrer to information sustained, and proceeding dismissed.

WHITFIELD J., dissenting.

COUNSEL Cary D. Landis, Atty. Gen., and Himes & Himes and Wm. C. Pierce, all of Tampa, for relator.

Henry E. Williams, Frank T. Phillips, Ralph C. Binford, and R. J Duff, all of Tampa, for respondent.

OPINION

PER CURIAM.

In quo warranto proceedings in this court, the Attorney General of the state alleges in effect that on March 1, 1932, the respondent was elected as a trustee of Consolidated Special Tax School District No. 4 in Hillsborough county, Fla., for the next two ensuing years and accepted the office and continues to exercise the duties, powers, privileges, prerogatives, and franchises of said office of trustee; that upon notice and findings the respondent was by resolution adopted by the county board of public instruction removed from his office as a trustee of said Consolidated Special Tax School District No. 4 in Hillsborough county, Fla.; that a true copy of said resolution of removal was delivered to the respondent, such removal to be effective from the date of such service of the resolution of removal on the respondent, and that thereupon and thereafter the respondent has ceased lawfully to be a trustee of said school district, or entitled to exercise the prerogatives of said office; that notwithstanding the said removal of said respondent as such trustee, the respondent, since the said order of removal was adopted and served upon him, has continued to deny the authority, validity, and effectiveness for any purpose of the removal of him from said office, 'and continues to perform all the duties, powers and authorities, liberties, privileges and franchises of the office of Trustee of said Consolidated Special Tax School District No. 4 of Hillsborough County,' 'and has usurped and does continue to usurp to be such Trustee.' The prayer is that respondent upon due process answer to the state by what warrant or authority of law he claims to exercise the office, franchises, liberties, powers, and authority of trustee of Consolidated Special Tax School District No. 4 in Hillsborough county, Fla.

By demurrer to the information filed by the Attorney General, respondent challenges the constitutional validity of the legislative enactment under which he was attempted to be removed from his office as trustee, the enactment being: 'Any trustee failing to discharge the duties of the position shall be removed, after due notice to such trustee, by the county board of public instruction.' Section 709(568), C. G. L.

The Constitution contains the following provisions: 'All officers that shall have been appointed or elected, and that are not liable to impeachment, may be suspended from office by the Governor * * * and the Governor, by and with the consent of the Senate, may remove any officer, not liable to impeachment.' Section 15, article 4. 'The State Board of Education * * * shall have power to remove any subordinate school officer for cause, upon notice to the incumbent.' Section 3, article 12. 'The Legislature may provide for the division of any county * * * 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.' Section 10, article 12.

A duly elected trustee of a special tax school district is an officer. If such trustee is a 'subordinate school officer,' he is subject to removal from office by the state board of education under section 3, article 12, of the Constitution, and such power of removal cannot be conferred upon the county board of public instruction by statute. If such trustee is not a 'subordinate school officer,' he is an officer subject to suspension from office by the Governor, and to removal from office by the action of the Governor and the state Senate under section 15, article 4, and such authority to suspend or remove from office cannot be delegated to the county board of public instruction by statute.

The information alleges the due election of the respondent in March, 1932, and as the statute under which his removal from office was attempted is in conflict with provisions of the Constitution regulating removals from office, such statute is inoperative, and the purported removal from office thereunder is ineffectual.

The demurrer to the information is sustained and the proceedings are dismissed.

BUFORD, C.J., and WHITFIELD, BROWN, and DAVIS, JJ., concur.

CONCURRING

DAVIS Justice (concurring).

Not having heard the oral argument in this case, I nevertheless concur in the majority opinion for the following reasons which have impelled me to that conclusion.

Section 3 of article 12, Constitution of Florida, provides that there shall be a state board of education of Florida consisting of the Governor, secretary of state, Attorney General, state treasurer, and state superintendent of public instruction. It also provides that such board 'shall have power to remove any subordinate school officer for cause, upon notice to the incumbent.' Section 1 of article 12 is to the effect that the Legislature shall provide for a 'uniform system' of public free schools and shall provide for the liberal maintenance of the same.

Section 10 of article 12 provides for the election biennially of 'three school trustees,' who shall hold office for two years, and who shall have the supervision of all the schools within the district. By statute (section 709, C. G. L., section 568, R. G. S.), statutory school 'supervisors' are superseded by the constitutional 'trustees' when the latter have been elected to serve in a special tax school district.

In State ex rel. Douglass v. Board of Public Instruction, 98 Fla. 66, 123 So. 540, it was held that, under the constitutional provision for a uniform system of public free schools, the Legislature had authority to create a statutory board of public instruction to perform the constitutional duty of disbursing the county school funds solely for the support and maintenance of public free schools. It was also held in that case that while the membership of a county board of public instruction was determined by statute, that the duties conferred upon the board, being governmental in their nature, the members of a county board of public instruction become officers who, under section 27 of article 3 of the Constitution were required to be either elected by the people or appointed by the Governor.

The necessary effect of the previous holding is, that members of the county board of public instruction are statutory public officers as well as school officers, and being such, fall within the purview of the supervision and removal power of the Governor and Senate as defined by section 15 of article 4 of the state Constitution.

But as to elected trustees of special tax school districts, as provided for by section 10 of article 12 (the special organic article on education), the situation of such trustees seems to be different. They are specially provided for in the Constitution and being so provided for in a special article of that instrument dealing specially with matters of public education, the statute (section 709, C. G. L. supra), which was evidently enacted under the constitutional mandate to provide for a 'uniform system' of public free schools, substitutes the elected trustees for the otherwise provided for (section 561, C. G. L., section 454, R. G. S.) appointed supervisors.

So far as the 'position' of supervisor is superseded by that of the 'trustees' as to all the schools within the special tax school district, the duties and powers of such elected 'trustees' are required to be 'performed by the trustees.' Section 709, C. G. L., supra. And it is specially provided that the powers of the trustees shall not be those of control, but of supervision only. Trustees of Special Tax School District No. 1 v. Lewis, 63 Fla. 691, 57 So. 614.

The statutes further expressly provide that all public schools within a special tax school district shall be under the direction and control of the county board of public instruction and county superintendent as in other districts. To make this control a practical affair and to make the 'direction' of the county board of public instruction really effective, the statute (section 710, C. G. L., section 569, R. G. S.), expressly empowers the county board of public instruction with authority to govern schools within a special tax school district 'subject to the same laws, rules and regulations prescribed for the conduct of other schools.'

Elected trustees of a special tax school district are therefore subordinate in power and in position, so far as direction and control of all the public free schools within a special tax school district are concerned. In only one matter has the statute given these elected 'trustees' direct powers which the county board of public instruction must respect and obey regardless of any other consideration, namely, the power of decision as to the proportion of the school funds raised within the special tax school district, that shall be applied in any year to buildings, repairs, school libraries, salaries of teachers, and to other educational purposes.

As to the allotment of the proportion of school funds 'raised within the district' that shall be applied to the various district school purposes contemplated by law, the judgment of the trustees is controlling and such judgment must be...