State v. Board of Public Instruction of Escambia County for and on Behalf of Special Tax School Dist. No. One of Escambia County

• Decision Date: 17 June 1959
• Citation: 113 So.2d 368
• Parties: STATE of Florida et al., Appellants, v. BOARD OF PUBLIC INSTRUCTION OF ESCAMBIA COUNTY, Florida, for and on behalf of SPECIAL TAX SCHOOL DISTRICT NUMBER ONE OF ESCAMBIA COUNTY, Appellee.
• Court: Florida Supreme Court

Page 368

113 So.2d 368

STATE of Florida et al., Appellants, v. BOARD OF PUBLIC INSTRUCTION OF ESCAMBIA COUNTY, Florida, for and on behalf of SPECIAL TAX SCHOOL DISTRICT NUMBER ONE OF ESCAMBIA COUNTY, Appellee.

Supreme Court of Florida.

June 17, 1959.

Edward F. Wicke and William Fisher of Fisher & Hepner, Pensacola, for appellants.

J. Edwin Holsberry, Pensacola, for appellee.

O'CONNELL, Justice.

This is an appeal from a final decree validating bonds proposed to be issued by Special Tax School District Number One of Escambia County.

The Board of Public Instruction of Escambia County, acting for the Special Tax School District, called an election on the question of the issuance of the bonds and, as provided in Sec. 97.081, F.S.A., requested the Board of County Commissioners to require a reregistration of qualified electors who were also freeholders. This was done and 15,324 such freeholders reregistered. At the election 878 such freeholders, who had not reregistered, were allowed to vote upon making affidavits in accordance with Sec. 100.241(2)(d), F.S.A., making the number of freeholders entitled to vote a total of 16,202.

At the bond election 11,173 votes were cast, 8,774 being for and 2,399 being against the issuance of the bonds. Therefore if the number of such freeholders entitled to vote was correctly determined by the reregistration and by the permitting of the 878 to vote on affidavit, as above-mentioned, a majority of the freeholder electors of the county participated in the election and a majority of such freeholders voted for the issuance of the bonds, in which case the bonds should be validated.

Escambia County, by virtue of the provisions of ch. 23903, Acts of 1947, at the time of the reregistration aforementioned had a permanent registration system with appropriate designation of the freeholder status of each voter. According to the testimony of the Supervisor of Registration, the permanent registration records of the County showed that there were 39,457 qualified electors who were also freeholders in Escambia County when the bond election was held.

It is appellants' contention that a majority of the qualified electors who were also freeholders in Escambia County did not vote to approve the issuance of the bonds as required in Sec. 6, Art. IX, Fla.Const., F.S.A. This question of necessity will be answered in determining whether or not the reregistration of freeholders had pursuant to Sec. 97.081, F.S.A. was valid.

Appellants in effect contend that inasmuch as Escambia County had a permanent registration system under the provisions of ch. 23903, Acts of 1947, the provisions of 97.081 did not apply in that County and there could be no reregistration of freeholders.

We are confronted here with reconciling conflicting enactments of the Legislature in which the latter does not expressly repeal the former.

The first Act, ch. 23903, was enacted as a general law in 1947. No attack is made on its status as a general law and we will treat it as such. It provides that in counties having a population between 100,000 and 130,000 a permanent registration system be established under which an elector, once registered, will not thereafter be required to again register.

The second Act, ch. 26870, which in part now appears in F.S.A. as § 97.081, was enacted in 1951; however subsection 2 thereof was amended by ch. 31404, Laws of Florida 1956. It is clearly a general act and in Sec. 97.081(2)(b) requires the county commissioners, when presented with a resolution of the board of public instruction so requesting, to call for a reregistration of freeholder electors so as to obtain a new and up-to-date list of such electors eligible to participate in any school bond election. This statute applies to all counties in the state; those having already adopted permanent registration systems were not excluded from its terms.

The conflict in the two acts is therefore that the former says that once an elector registers under the permanent system he will not thereafter be required to reregister, whereas the latter says that the freeholder electors may be required to reregister under the conditions outlined in the act.

The solution to this problem is found in the rules of statutory construction.

Generally the rule is that the later legislative expression governs. Overstreet v. Ty-Tan, Inc., Fla.1950, 48 So.2d 158; Johnson v. State, 1946, 157 Fla. 685, 27 So.2d 276, certiorari denied 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683. Although the rule is against repeal by implication, this rule does not prevail where there exists a positive repugnancy between the two acts. De Coningh v. City of Daytona Beach, Fla.App.1958, 103 So.2d 233. Here there is positive conflict between portions of the two acts since the first act provides that no elector shall be required to reregister while the later act provides that freeholder electors may be required to reregister. Taking the later statute as a modification of the first gives effect to both statutes by giving each a field of operation and leaves neither meaningless. This meets the requirements of the rules of statutory construction.

It seems to use that this construction is in keeping with the provisions of Sec. 2, Art. VI, Fla.Const., which clearly indicates that registration of electors be completed, i. e. made 'from time to time.' To follow appellants' reasoning to a conclusion would result in holding that a reregistration could never be held for any purpose in Escambia County.

We therefore conclude that the reregistration of the freeholder electors was valid and that the number of freeholders entitled to vote on the issuance of the bonds in question was the number of such electors who reregistered as supplemented by those permitted to vote under the provisions of Sec. 100.241(2)(d), supra. See State v. County of Sarasota, Fla.1953, 62 So.2d 708. Inasmuch as a majority of those so qualified to vote on the issue participated in the election and a majority voted favorably, the bonds were properly validated.

It is to be noted that Sec. 98.041, F.S.A., adopted in 1951 as a part of ch. 26870, provides a permanent registration system for the counties if they chose to adopt it by resolution of the county commissioners. This section provides that after once registering under the permanent system an elector '* * * shall not thereafter be required to register or reregister except as provided by law or as provided for the registration of freeholders.' However, this section does not apply until 1960 to those counties which had previously adopted permanent registration systems, such as Escambia County, and the quoted wording of the section does not apply to this case. It will, however, apply to all counties after January 1, 1960 for by Sec. 98.131 all counties are required to adopt the permanent system in the year 1960. Therefore the question presented in this case will not arise after January 1, 1960.

Appellants complain also that in enacting Sec. 97.081 the Legislature failed to comply with the mandatory provision of Sec. 2, Art. VI, Fla.Const. which requires that the Legislature '* * * shall also provide that after the completion, from time to time, of such registration, no person not duly registered according to law shall be allowed to vote.' This is so, say the appellants in their brief, 'because the legislature did not provide that after the completion of the reregistration of freeholders no person not duly reregistered according to law shall be allowed to vote.'

The question of the constitutionality of Sec. 97.081 was decided adversely to appellants in State v. County of Sarasota, 62 So.2d 708, supra, which decision upheld the validity of the act prior to its amendment in 1956. The amendment of 1956 merely added a specific provision, now Sec. 97.081(2)(b), authorizing the calling of a reregistration for an election on the issuance of bonds for financing a school building program. The decision in the Sarasota case is therefore decisive of the constitutionality of the present act since the question, i. e. the validity of an act requiring a reregistration of freeholders, was the same as in this case. Further, it was specifically decided in Holmer v. State ex rel. Stewart, 1947, 158 Fla. 397, 28 So.2d 586 that the supervisor of registration may, between the time of the closing of the registration books of freeholders and of the bond election, add to the list the names of any persons who were erroneously omitted, had qualified as freeholders after the close of the books, or for other reason had become qualified to vote, and that the supervisor should during such period strike from the list those who have in such interim period become disqualified. The effect of this decision, as implemented in part by Sec. 100.241(2)(d), is merely to extend the time for completion of the list of freeholder electors to the date of the election and is not in conflict with the constitution.

However, the Holmer decision cannot, in light of Sec. 97.081, be construed to mean that the list of freeholders qualified to vote may be made up by the supervisor of registration from any list of such electors which might have existed prior to the reregistration of such electors, or from any other source, but must be construed to mean that the list of such electors shall be comprised of those who reregister as supplemented by those who shall later qualify under the provisions of Sec. 100.241(2)(d).

We note here that the appellants do not contend that any freeholders were denied the right to vote in the election in issue.

For the reasons above expressed the decree of validation is affirmed.

TERRELL, C. J., and DREW and THORNAL, JJ., concur.

ROBERTS, J., dissents.

ROBERTS, Justice (dissenting).

Two issues, inter alia, were raised by the appellants in their appeal from the decree validating the bonds proposed to be issued by the appellee: (1) that the record showed that a majority of the qualified electors...