ON PETITION FOR REHEARING. The petition for rehearing says that the opinion of the Court in this case holds that the maintenance of the public schools is exclusively a local or "County purpose." I do not so understand the opinion. There may be some language in the statement of the historical background of the question here involved which might create that impression, but the conclusion reached in the opinion is that the Legislature has ample permissive power to appropriate State funds, raised by State taxation, to the county school funds of the several counties to the limit of its ability to raise revenue for that purpose; but that it cannot exercise that power in such a way as to prevent or cripple the performance of its primary and mandatory duty, under Section 2 of Article IX of the Constitution, to pay the expenses of the State government. If the State government is broken down, the counties would go with it. If it is seriously crippled, the counties would also suffer, and could not get any substantial appropriations from it. The Constitutions of this State have long made it a primary duty of the Legislature to raise revenue and make appropriations necessary to pay the expenses of the State government; but it was not until nine years ago that the Legislature was given the power to make direct appropriations of State funds to the "County School Fund" of the respective counties of the State. *Page 408
Prior to that time, the Constitution had already provided, and still provides, two distinct funds for the common schools, one, the "State School Fund," only the interest of which can be applied to the support of the public free schools, the principal to "remain inviolate"; the other, the "County School Fund," to consist of certain specified elements. These elements embraced (1) the fund derived from the county school tax of from 3 to 10 mills, (2) the proportion of the interest on the State School Fund, (3) the proceeds of the one mill State tax apportioned to the county, and (4) all capitation taxes collected within the county.
The Legislature was expressly given the power to make State appropriations to the State School Fund, the interest on which went to the County School Funds; but it was not given the power, until the amendment of 1926, to make appropriations to the County School Fund; and the power so given was not mandatory but permissive.
So, prior to 1926, the Constitution sharply distinguished the "State School Fund" from the "County School Fund," so far as appropriations were concerned; and in this sense the County School Fund, which consisted primarily of the county-raised tax, might well have been deemed a purely local or "county purpose," to be expended wholly within the county, and to which the Legislature could make no direct State appropriations. The one mill school tax imposed by the Constitution is itself apportioned to the County School Fund.
But the constitutional amendment of 1926 added to the sources of the County School Fund, "appropriations made by the Legislature," thus by necessary implication giving the Legislature the power to make such appropriations, *Page 409 and to this extent such aid to the county school funds became a legitimate "State purpose."
There can be no question, especially since the amendment of 1926 to Section 9 of Article XII of the Constitution, about the correctness of the principle that, to the extent above outlined, the maintenance of the County School Fund in each and every county in the State is now a State as well as a County purpose, to aid which the Legislature now has ample power to make appropriations which may be just as valid as those made for any other purpose. But prior to the amendment of 1926, the Legislature could not have made such direct appropriations to the county school funds, and by that amendment it was merely given the power, but not commanded, to make such appropriations.
So, although the County School Fund in the respective counties of the State (which still remains what the Constitution calls it, i.e., a county school fund), now includes "appropriations by the Legislature," the fact remains that the constitutional power of the Legislature to make such appropriations is a permissivepower, whereas the Constitution makes it the mandatory duty of the Legislature to raise the necessary revenues and make the necessary appropriations to pay the expenses of the State government, not partially but fully. The Legislature cannot avoid or cripple the performance of this mandatory duty, by making the payment of appropriations made pursuant thereto, in whole or in part, conditional upon the revenues proving to be sufficient to pay in whole or in part appropriations made under a merely permissive power. The performance of a mandatory duty cannot be made subordinate to the exercise of a permissive power.
While Article XII of the Constitution, in Section 1, provides that "The Legislature shall provide a uniform system *Page 410 of public free schools and shall provide for the liberal maintenance of the same," the succeeding sections of Article XII give very specific directions as to just how such "liberal maintenance" shall be provided. The Constitution provided two distinct funds, one the "State School Fund" and the other the "County School Fund," putting the primary burden of maintaining the County School Funds upon the respective counties, and expressly specifying the sources from which each of these funds should be created. It left no room for doubt that one was a State School Fund and the other a County School Fund. In State, ex rel. Bours, v. L'Engle, 40 Fla. 392, 24 So.2d 539, this Court said:
"It is apparent that Article XII has devised a complete scheme for the support and maintenance of public free schools in the various counties of the State. A State school fund is first provided for from specified sources, which is to be kept inviolate, and the interest accruing thereon, and a one mill tax, shall be apportioned among the different counties of the State. Then a county school fund for the support of the public free schools of the county is provided for, and the constituent parts of this fund are specified. In addition to the apportionment from the State funds and the capitation taxes collected within the county, a further county assessment is to be required of not less than three nor more than five mills on the dollar of the taxable property of the county, and all this is constituted a county school fund to be disbursed by the county board of public instruction solely for the maintenance and support of public free schools. To the extent of a direct county levy for public school purposes, Sec. 8 is a command to make such levy, and at the same time it contains a limitation upon the power of the Legislature to require or authorize a levy in excess of five mills, except as provided in the tenth section for an *Page 411 additional levy of not more than three mills for district purposes. The fifth section of Ariticle IX provides that the Legislature shall authorize the several counties in the State to assess and impose taxes for county purposes, and for no other purpose, and while the support of the public schools of a county may be a county purpose, still it is entirely clear that the Constitution has differentiated county taxation for this purpose and applied a limitation thereto. When the Constitution expressly enjoins that each county shall be required to levy and collect annually for the support of public free schools a tax of not less than three nor more than five mills on the dollar of the taxable property of the county, no other proper construction is admissible than that the power to tax for such purpose is limited to the higher rate stated."
Since the above quoted opinion was written, Section 8 of Article XII was amended so as to provide that each county shall be required to assess and collect annually for the support of the public schools therein "a Tax of not less than three (3) mills and not more than ten (10) mills on the dollar on all taxable property in the same."
Likewise in 1922, Section 10 was amended so as to increase the taxing limit of school districts from three to ten mills. And at the general election in 1912, Section 17 was adopted and amended in 1924, which authorized school districts to issue bonds. The amendment to Section 9, made in 1926, has already been alluded to. Except for these amendments, the comprehensive scheme of Article XII of the Constitution remains just as it was when the Constitution was adopted fifty years ago.
We cannot see that any good purpose would be subserved by a rehearing of this case. The points mentioned in the petition have already been carefully considered by *Page 412 the Court. The decision already made is firmly grounded upon the plain language of the Constitution, and no good reason for departing from it has, in our opinion, been shown. The petition should therefore be denied.
WHITFIELD, C.J., DAVIS, J., and GRAY and JOHNSON, Circuit Judges, concur.
TERRELL, J., dissents.