Westlake v. Merritt

Decision Date10 January 1923
Citation95 So. 662,85 Fla. 28
PartiesWESTLAKE v. MERRITT, Sheriff.
CourtFlorida Supreme Court

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Petition by Luella Westlake against R. E. Merritt, Sheriff of Duval County. From an order sustaining a demurrer to the petition and remanding petitioner to the custody of defendant, she brings error.

Reversed and petitioner discharged.

West and Ellis, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Limiting appointing power of Governor to certain persons to be selected by other persons held unconstitutional. A statute that attempts to restrict the appointing power of the Governor by limiting his choice to certain persons to be selected by some other person or persons is unconstitutional and void, as an infringement upon his exclusive constitutional right of appointment.

Imposing limitation on appointing power of Governor held unconstitutional. A statute that purports to lodge the appointing power of certain officials in the Governor, but attempts to limit his constitutional prerogative, by vesting in an association of persons the right to confine the Governor in his appointment to 3 out of 10 persons to be recommended by the association, is a limitation upon the appointing power of the Governor, and is unconstitutional and void.

Chiropractic act invalid for unconstitutionality of section upon which other sections depend. Laws 1919, c. 7821, § 2, establishing a board of chiropractic examiners, having been declared unconstitutional, the other sections of the chapter regulating the practice of chiropractic, defining the power and duties of the board, and providing penalties, being dependent on section 2 and without it having nothing upon which to operate, must also fall.

COUNSEL

George C. Bedell, of Jacksonville, for plaintiff in error.

Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen for defendant in error.

OPINION

BROWNE J.

The plaintiff in error, Luella Westlake, was arrested in Duval county, Fla., charged with practicing chiropractic without having first obtained a certificate from the Florida Board of Chiropractic Examiners, contrary to the provisions of chapter 7821, Laws of Florida, Acts of 1919.

The petition attacks the constitutionality of chapter 7821, alleging that it is in violation of sections 25 and 27 of acticle 3 of the Constitution of Florida.

A demurrer to the petition was sustained, and the constitutionality of the act upheld and the prisoner remanded to custody of the sheriff of Duval county.

The case is before this court on writ of error.

Section 1 of the act provides for the creation of 'The 'Florida State Board of Chiropractic Examiners,” and defines their qualifications.

Section 2 provides:

'The members of said board shall be appointed by the Governor from a list of at least ten to be recommended by the Florida Chiropractors' Association, and said appointments shall be made as soon as practicable after this act becomes a law.'

Section 27 of article 3 of the Constitution of Florida ordains that----

'The Legilature shall provide for the election

'The Legislature shall provide for the election of all state and county officers not otherwise provided for by this Constitution, and fix by law their duties and compensation.'

The members of the board of examiners are officers under the decisions of this court. See State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 So. 721, 63 Am. St. Rep. 174. The act does not provide for their election. It pretends to lodge the appointing power with the Governor, but seeks to limit his constitutional prerogative by vesting in the Florida Chiropractors' Association the right to confine the Governor in his appointments to 3 out of 10 persons to be recommended by them. To a certain degree, this empowers the Florida Chiropractors' Association to share with the Governor the appointing power, which is lodged solely in him by the Constitution.

If the act required the Governor to appoint any three persons recommended to him by the association, it is palpable that the appointing power would be exercised by the association, and not by the Governor, who would merely ratify their selections. If the Legislature had power to limit the Governor in the exercise of his appointing power to 10 persons recommended by the association, it could as well limit him to 3. The fact that 10 instead of 3 is the number designated by the Legislature in no way affects the principle, and is a matter of degree only.

It is apparent that the appointing power of the Governor would be limited and controlled by the Florida Chiropractors' Association, and an appointment made by the Governor under such circumstances would be merely the ratification or confirmation of certain selections made by the association, and not an exercise by the Governor of his exclusive constitutional right of appointment.

The unconstitutionality of the attempted limitation upon the appointive power of the Governor is made more obvious by applying the same limitation to officers to be elected by the people.

Would the act have been constitutional if the Legislature had made the members of the board of chiropractic examiners elective, and limited those to be voted for to 10 or 3 persons to be selected by the Chiropractors' Association? Obviously not, and there is no more warrant for placing such a restriction on the appointive power of the Governor, than on the elective power of the people, both being in the same sentence in section 27 of article 3 of the Constitution.

Chapter 7821, regulating the practice of chiropractic, relates to the duties and powers of the board of chiropractic examiners, and the penalties provided for in the law are for acts, the criminality of which depends upon the validity of section 2. Without this section, there is nothing for the other provisions of the act to be operative upon. It follows, therefore, that section 2 being unconstitutional, the entire act must fall.

In view of our decision that section 2 is in violation of section 27 of article 3 of the Constitution, it is unnecessary to decide if it is violative of section 25 of article 3.

The judgment is reversed, and the prisoner will be discharged.

TAYLOR, C.J., and WHITFIELD, J., concur.

ELLIS and WEST, JJ., dissent.

CONCURRING

WHITFIELD J. (concurring).

Section 27, art. 3, of the state Constitution, was not referred to or considered in Rasmussen v. Tippins, 83 Fla. 530, 91 So. 560, in which case the constitutionality of chapter 7821, Acts of 1919, was challenged upon other specified grounds.

The general provision of article 2 of the state Constitution that the powers of government shall be divided into three departments, and that no person properly belonging to one of the departments shall exercise any power appertaining to either of the others, except in cases expressly provided for by the Constitution, may not make the appointment of officers an exclusively executive power or function; and unless other organic provisions control the legislative department, may exercise itself or authorize officers of either of the other departments to exercise the power to appoint statutory officers and may make such authority restrictive or absolute, within organic limitations. See 12 C.J. 898, § 402; Ingard v. Barker, 27 Idaho, 124, 147 P. 293; Richardson v. Young, 122 Tenn. 471, 125 S.W. 664; Little v. Willimon, 103 S.C. 50, 87 S.E. 435. But where the Constitution in express terms confers upon the Governor the power to appoint all officers that may be appointed and are not otherwise provided for by the Constitution or by-laws made pursuant to constitutional authority on the particular subject, the Legislature cannot directly or indirectly, or under the guise of prescribing qualifications limit or encroach upon the power of the Governor to appoint officers to fill statutory offices by designating other authority to participate in selecting or in hampering the exercise of executive judgment in making selections for appointments to office. See State v. Washburn, 167 Mo. 680, 67 S.W. 592, 90 Am. St. Rep. 430; State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S.W. 823, Ann. Cas. 1915A, 588. If the statute is invalid, the Governor alone appoints under the Missouil Constitution, § 11, art. 5. This does not prevent the Legislature from prescribing qualifications for statutory officers or reasonable regulations as to place and length of residence of officers who properly should be chosen from different parts of the state, as in State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929. In cases like State v. Frear, 146 Wis. 291, 131 N.W. 832, 34 L. R. A. (N. S.) 480, the legislative power was not restrained by a specific organic provision, as in this case.

Section 27, art. 3, commands that----

'The Legislature shall provide for the election by the people or appointment by the Governor of all state and county officers not otherwise provided for by this Constitution.'

Under this express mandatory organic provision all offices created by statute must be filled by officers who are either elected 'by the people' or who are appointed 'by the Governor.' This provision denies to the Legislature the power to authorize any other person, officer, or agency to participate in or to limit or curtail the exercise of the executive judgment of the Governor in selecting persons for appointment from among those having proper and adequate qualifications as to age, residence, attainments, or otherwise within appropriate bounds. See, also, section 7, art. 4, of the state Constitution. The controlling organic provision in this case is very different from the one considered in Ex parte Gerino, 143 Cal. 412, 77 P. 166, 66 L. R. A. 249.

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13 cases
  • State v. Daniel
    • United States
    • Florida Supreme Court
    • March 19, 1924
    ...participate in selecting or to hamper the exercise of executive judgment in making selections for appointments to office. See Westlake v. Merritt (Fla.) 95 So. 662; State v. Washburn, 167 Mo. 680, 67 S.W. 592, 90 St. Rep. 430; State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S.W. 823, Ann. ......
  • Smith Bros. v. Williams
    • United States
    • Florida Supreme Court
    • February 18, 1930
    ...Fla. 513, 55 So. 273, a statute was held to be valid which had been held invalid in Adams v. Sneed, 41 Fla. 151, 25 So. 893. In Westlake v. Merritt, 85 Fla. 28, 31, 95 So. 662, a statute was held to be invalid which had been regarded as valid in Rasmussen v. Tippins, 83 Fla. 530, 91 So. 560......
  • Blitch v. Buchanan
    • United States
    • Florida Supreme Court
    • November 12, 1930
    ... ... State, 95 Fla. 465, 116 So. 72; ... State v. Board of Public Instruction of Duval ... County, 98 Fla. 66, 123 So. 540. See, also, Westlake ... v. Merritt, 85 Fla. 28, 95 So. 662. There are exceptions ... to the above general rule, as, for example, the statutory and ... inherent power ... ...
  • Marks v. Frantz
    • United States
    • Kansas Supreme Court
    • June 9, 1956
    ...the statute as conferring such power, for that was its effect, it was unconstitutional. He also directs attention to Westlake v. Merritt, 85 Fla. 28, 95 So. 662, where, by a divided court, it was held that a provision of a statute requiring the governor to appoint the members of the governo......
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