Chapter 7809, Acts of 1919, as amended by Chapter 9135, Acts of 1923, Sections 688 et seq., Comp. Gen. Laws, 1927, purports to authorize the county board of public instruction to appoint and to remove "attendance officers," and to fix their compensation to be paid from the county school fund. The enactment also proposes to confer upon such attendance officers powers and duties that may be exercised or performed only by officers. See Advisory Opinion to Governor, 76 Fla. 500, 80 So. R. 17. These provisions of the statute conflict with Section 27, Article III, of the Constitution which 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, and fix by law their duties and compensation." See County Commissioners v. Savage, 63 Fla. 337, 58 So. R. 835. A portion of the statute also conflicts with the provision in Section 3, Article XII, Constitution, that the State Board of Education "shall have power to remove any school officer for cause, upon notice to the incumbent."
The powers and duties prescribed by the statute for "attendance officers" are essentially different from the duties defined for "Rural School Inspectors" by Chapter 6539, Acts of 1913. Though such rural school inspectors are under the statute appointed by the Governor, they were held to be not officers but employees, because of the nature of their duties. State ex rel. Holloway v. Sheats, 78 Fla. 583, 83 So. R. 508. As official duties involving the exercise of governmental authority were prescribed by the statute for "attendance officers" they would if legally appointed be county officers. The salaries are directed to be paid from, the county school fund, and no officers except county school officers can be paid from such fund. Section 15, Article *Page 78 XII, Constitution. The statute does not create the officers and fix the compensation for the officers, and then unlawfully authorize the county board of public instruction to appoint the officers. But the enactment attempts to authorize the appointment of such attendance officers and the fixing of their compensation, contrary to the terms of the Constitution, therefore, no such office as "attendance officer" is created, and the provisions of the statute for the appointment of the officers and the fixing of their compensation by the county board of public instruction are violative of organic law and inoperative; and appointments made under such statutory provisions are ineffectual to give the appointees a status as officers so as to make them removable as "subordinate school officers" by the State Board of Education under Section 3, Article XII, of the Constitution. Until legally elected or appointed there can be no "attendance officers" to be removed as "subordinate school officers." Subordinate school officers though appointed by the Governor or elected by the people as may be provided by statute, in compliance with Section 27, Article III, of the Constitution, may be removed by the State Board of Education for cause and upon notice, as provided by Section 3, Article XII, of the Constitution. In so far as Chapters 7808 and 9135 attempt to authorize the county board of public instruction to appoint and to fix the compensation of attendance officers who are to perform the prescribed official functions, the statutes are ineffectual for that purpose; and such statutory provisions cannot be regarded as legislative authority to employ attendance officers for any definite period of time. The office of "attendance officer" has not been legally created, and consequently, one claiming to be an "attendance officer" is not either a de jure or a de facto officer, with rights that are incident thereto. 46 C. J. 1054; United States v. Royer, *Page 79 268 U.S. 394, 69 L.Ed. 1011, 45 Sup. Ct. Rep. 519; Norton v. Shelby County, 118 U.S. 425, 6 Sup. Ct. Rep. 1121,30 L.Ed. 178; State ex rel. Holloway v. Sheats, 78 Fla. 583, 83 So. R. 508.
Where, without a statute expressly authorizing or regulating the matter, the county board of public instruction has implied authority to employ persons to perform merely clerical orministerial duties that may properly be paid for from the county school fund, which the Constitution requires to be "disbursed * * * solely for the support and maintenance of public free schools," the authority to employ includes authority to lawfully terminate the employment, there being no statute or controlling regulation to the subject. And when the board has authority to terminate employment, it may be exercised by the board whether its personnel remains as when the employment was entered into or is changed by due course of law.
Section 1, Article XII, of the Constitution is that: "The legislature shall provide for a uniform system of public free schools and shall provide for the liberal maintenance of the same." This organic provision does not authorize the legislature to confer upon the county board of public instruction the power to appoint persons to perform county school functions that are essentially official and not merely clerical or ministerial in their nature, particularly when Section 27, of Article III, expressly commands the legislature to "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," and when Section 7, of Article III, provides that "all county officers, except Assessors of Taxes, shall before entering upon the duties of their respective offices, be commissioned by the Governor." The authority given by the Constitution to the county board of public instruction to disburse the *Page 80 county school fund "solely for the support and maintenance of public free schools," does not authorize the legislature to confer upon such board the power to appoint persons to exercise functions that may be performed only by officers, when under Section 27, of Article III, such officers must be elected by the people or appointed by the Governor. While as held in State ex rel. Bours v. L'Engle, 40 Fla. 392, 24 So. R. 539, Article XII of the Constitution provides for a system of county school taxation separate from general or other county taxation, such article does not require county school officers to be appointed or elected otherwise than is provided in other sections of the organic law.
The title to Chapter 7808, Acts of 1919, is misleading as to a part of the contents of the Act, in that there is nothing in the title to indicate that the body of the Act contains any provisions relating to the appointment and removal of attendance officers and the fixing of their compensation by the county board of public instruction, such provisions being contrary to organic law. This defect is not cured in the amending Act, Chapter 9135, Acts of 1923.
The title indicates an Act to enforce compulsory school attendance, and the natural assumption is that the means of enforcement that are provided in the Act are lawful, whereas the Act in fact provides that the enforcement officers shall be appointed and removed and their compensation fixed in a manner that is contrary to organic law.
While the Act of 1919, as amended in 1923, is incorporated in the Comp. Gen. Laws, 1927, such compilation has not been enacted as an entire revision of the general laws of the State and consequently any defects that may be in the titles of Chapters 7808 and 9135, Laws of Florida, have not been cured by re-enactment in a general revision of the laws, as in Christopher v. Mungen, 61 Fla. 513, text 534 *Page 81 55 So. R. 273; Carlton v. State, 63 Fla. 1, 58 So. R. 486; Henderson-Waits Lumber Co. v. Croft, 89 Fla. 119, 103 So. R. 414; Montsdoca v. Highlands Bank Trust Co., 85 Fla. 158, text 162, 95 So. R. 666.
The demurrer to the alternative writ is sustained and the writ will be dismissed.
TERRELL, C. J., and ELLIS, STRUM, BROWN and BUFORD, J. J., concur.