The Legislature of 1935 enacted Chapter 16772, better known as the General Appropriation Bill. It also enacted Chapter 17247 making an appropriation for public free schools and for other purposes, Section Five of which is as follows:
"This appropriation shall be on a parity and of equal dignity with all other appropriations made by the Legislature *Page 399 of the State of Florida of 1935 or prior years, except the following appropriations as contained in House Bill No. 1256 of the Session of 1935, as follows: * * *
"If, for insufficient funds or otherwise, this appropriation cannot be paid in full during any given year, it shall be diminished only in the same proportion that other appropriations made by the Legislature and not hereinabove excepted are diminished during such given year."
On becoming effective the Comptroller declined to draw warrants for payment of the salary of those not included in the exceptions listed in Section Five but not quoted here. This is a proceeding in mandamus seeking to compel the performance of that duty. We are consequently confronted with the question of whether or not the Legislature can modify the terms of Chapter 16772 in the manner attempted by the concluding paragraph of Section Five of Chapter 17247.
The majority opinion holds Chapter 17247 invalid because in conflict with Section Two of Article Nine and Section Thirty of Article Three of the Constitution. Section Thirty of Article Three requires that laws making appropriations for the salaries of public officers and other current expenses of the State shall contain provisions on no other subject. Whatever bearing this provision has on the main question presented seems to me to be remote.
The pertinent part of Section Two of Article Nine ordains that the "Legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year."
The terms of Section Two of Article Nine as quoted are mandatory. But what constitutes the "expenses of the State for each fiscal year?" I do not agree that the bi-annual appropriation bill and Acts making other appropriations *Page 400 conclude the answer to this question. In my judgment, "expenses of the State for each fiscal year" has reference to the operating expenses of those departments, commissions, boards, or bureaus set up by the Constitution for the purpose of guaranteeing to the people of Florida a democratic form of government. Those departments in other words in which some portion of the sovereignty is reposed.
Under our Constitution the support of institutions for the insane, the blind and the deaf, a State Board of Health, a State prison, State militia, and "such other benevolent institutions as the public good may require" is made mandatory. (Articles Thirteen, Fourteen, and Fifteen.) The Constitution in terms and by positive inference authorizes the Legislature to create other commissions and agencies as the public good requires and for their purpose vest them with administrative and judicial functions. (Section One of Article Five and Section Thirty-five of Article Five.) I think the operating expense of all such agencies, commissions, and institutions must be comprehended in the "expenses of the State for each fiscal year" as must contracts and obligations made by them pursuant to law.
I do not think the first part of Section Five providing that "this appropriation shall be on a parity and of equal dignity with all other appropriations made by the Legislature of the State of Florida for 1935" adds one whit to its force and effect. The fact of its passage gave it that status but insofar as Section Five attempts to modify and withdraw from the general appropriation bill an amount sufficient to neutralize any deficit that may arise from disbursing the two appropriations, as related to the governmental purposes herein named and no more, it is an unwarranted invasion of *Page 401 Section Two of Article Nine of the Constitution and cannot stand.
The logic supporting this promise is that government is the first essential to a well organized society. If government does not function efficiently and expeditiously we do not have schools, roads, police protection, religious liberty, nor any of the other benefits offered by the State for the well being of the citizen. The agencies of government set up to do this should not be hampered in their processes nor restricted in their freedom to contract and execute the powers with which they are clothed. These must be definite and fixed and never subject to uncertainty or disruption.
It is not my view that every agency instituted by the Legislature for economic, sociological, or benevolent purposes meets the test prescribed here and not being so the protection of Section Two of Article Nine cannot be invoked in their behalf. I can conceive of no reason and am cited to no authority why open appropriations not tied to one of the purposes herein named cannot be subjected to the so-called Parity clause of Chapter 17247.
The Legislature has an unlimited discretion in the matter of making and restricting appropriations of public funds when not controlled by constitutional limitation. There must of course in obedience to Section Four of Article Nine of the State Constitution which was copied from the Federal Constitution, be an appropriation, but this done it can take any shape or direction the Legislature designs it. See Humbert v. Dunn,84 Cal. 57, 24 P. 111, for an interesting discussion of the history of Section Four, Article Nine of the Constitution.
I do not agree with that part of the majority opinion holding that the responsibility for the public free school system rests primarily in the county. *Page 402
The Constitutions of 1838 and 1865 inferentially recognized schools and seminaries as State responsibilities. (Article Ten, Constitution of 1838, and Article Ten, Constitution of 1865.) It is not out of place to state in this connection that we had no public schools as we now know them in this State prior to the Civil War. The responsibility for mass education, while inferentially recognized by the Constitution to be in the State, was actually borne by the private school and the academy. The private school was the forerunner of the public free school, the latter being attended at first only by orphan and poor children whose parents could not pay tuition. Our first public schools were free only to poor children and were sometimes called pauper schools. County tax supported free schools had their origin in 1850, but were not well patronized, the insignificant sum of thirty-one cents per pupil being first appropriated for white children. The academies of the early period were generally incorporated, privately owned, and were the forerunner of the high school.
The public school system as we now have it took shape under the Constitution of 1868 in which the State in terms assumed full responsibility, Section One of Article Eight being as follows:
"It is the paramount duty of the State to make ample provision for the education of all the children residing within its borders, without distinction or preference."
Section Two of the same Article made it mandatory on the Legislature to provide an uniform system of common schools and an university and for the liberal maintenance of the same.
The Constitution of 1868 created and provided for the distribution of a State and county school fund, created a State Board of Education, and the school law of 1869, *Page 403 enacted pursuant to the Constitution of 1868, contained provisions to make the constitutional provisions more effective. Both the Act and the Constitution recognized the State as the major responsibility for the public school system.
The present Constitution of 1885, by Article Twelve, did nothing more than enlarge on and add to the provisions of the Constitution of 1868 on the subject of education. It increased both the county and the State school funds, provided for the creation of special tax school districts to further enlarge the county school fund, it enlarged the State Board of Education, vested it with designated powers and authorized the Legislature to clothe it with additional powers, which it has done from time to time. It did not depart from the educational policy expressed in the Constitution of 1868 in any respect.
The responsibility of the State is reserved in Section One by requiring the Legislature to provide for an uniform system of public free schools and make liberal provision for their maintenance, by the enlargement of the State Board of Education and giving it control over subordinate school officers, giving it the power to prescribe courses of study, manage and invest the State school fund, and general control over the administration of schools, school policies, and school finances in the State.
The general powers and duties of the State Board of Education as defined by Article Twelve and Section 602, Revised General Statutes of 1920, Section 755, Compiled General Laws of 1927, and the general powers and duties of the County Boards of Public Instruction as defined in Section 454, Revised General Statutes of 1920, Section 561, Compiled General Laws of 1927, cannot be read and any other conclusion reached than that the County Boards of *Page 404 Public Instruction are primarily agents delegated by the Legislature to administer the school affairs of the county. They have powers delegated to them by the Legislature, but they have no constitutional status. The raising of the county school fund is primarily a county responsibility, but when it comes to questions of fundamental school policy their acts are subject to review by the State Board of Education. Undoubtedly the County Board of Public Instruction has important duties to perform, but when we think in terms of the public free school system the ultimate authority and responsibility are in the State. Examination of Acts of the Legislature affecting the public schools passed frequently since the adoption of the Constitution abundantly support this view.
Section One of Article Twelve requiring the Legislature to provide for and liberally support a system of public free schools is no less mandatory than Section Two of Article Nine requiring sufficient revenue for the expenses of the State for each fiscal year. Section Nine of Article Twelve is the only authority for the Legislature to support the public free school system so when these two provisions are read together as they must be the latter becomes more than a mere permission to the Legislature to patronize the county school fund.
The Amendment to Section Nine of Article Twelve authorizing the Legislature to make appropriations to the county school fund was submitted to the people in 1925 and adopted at the general election in 1926. At the time it was adopted over half the counties were imposing the maximum millage permitted and with that could not operate school terms but four and five months and some of them less than that. There was a general demand for longer school terms and better school facilities in all the counties. *Page 405 The Governor recommended the submission of the Amendment. It was advocated on the ground that every county should have an eight months' school term, that the support of the public school was a State matter, and that if adopted the Legislature could supplement the county school fund to accomplish these purposes.
Inadequacy of the county school fund prompted Amended Section Nine of Article Twelve. It in no sense abandoned the sources of that fund already provided, but authorized the Legislature to supplement those sources by appropriations from the public treasury in order that it be enabled to perform the mandatory duty imposed on it by Section One of Article Twelve. The amount of such appropriations should not be determined by arbitrary demands, but by the needs of the various counties to carry out the public free school policy as approved by the Legislature, but when made they are of the same force and effect as appropriations made for other purposes.
But such appropriations to become effective cannot be made out of thin air. They should be predicated on a revenue producing source and the Legislature is clothed with like power to so predicate them that it is to provide the revenue required by Section Two of Article Nine. So construed the challenge that the Legislature can appropriate for every purpose under the sun but the public free school is without merit. The fact is that no command in the Constitution is more compelling than that in Section One of Article Twelve, to provide and liberally support a public school system and Section Nine affords the means to do so. It placed the public school on an equality with any other interest before the State Treasury.
The amendment to Section Nine for this purpose was perfectly consistent with the history of the educational *Page 406 policy of this State. Beginning in 1893, less than ten years after the adoption of the Constitution, Article Twelve has been amended six times for no other purpose than to enlarge the public school facilities. In 1908 the people rejected proposed Amendment Sixteen to impose a tax of one mill on all taxable property in the State for the benefit of the University, the Women's College, the school for the deaf and blind, and the A. and M. College, preferring to support these institutions by direct tax. Which has been liberally done. To my mind it is absurd to contend that the public schools cannot be as liberally supported.
Not only has this been the educational policy of the State, but it has been typical of that of every State in the Union. And why should it not be? The public school is the primary means provided for mass education and I know of no object or institution entitled to consideration at the hands of the Legislature ahead of it. It was here first and from the very inception of this government there have been many who realized that an enduring democratic civilization rests on the equality of its citizenship rather than on the height or magnificence of its public buildings, the size of its garage, the width of its roads, or the lousiness of its bank balances. Ninety years is long enough to nail gold knobs on clapboard doors.
Summarizing, it is my view that Section Two of Article Nine and Section One of Article Twelve impose like mandatory duties on the Legislature, the Constitution clothes it with ample authority to respond to both commands, but in doing so distinct sources of revenue must be provided each or single sources sufficient for both. Appropriations cannot be neutralized from funds provided for either purpose, but they may be from other appropriations in the *Page 407 manner stated herein, whether included or excluded under the terms of Section Five, Chapter 17247.
I have examined the other questions raised, but express no opinion as to them. Some of them present grave difficulties which may be cured by Section Six, Chapter 17247.
I agree that the peremptory writ in this case should issue.