State ex rel. Buford v. Daniel

Ellis, J.

Dissenting.

Under a title which for descriptive words was extraordinarily barren in that it contained only one and that one of such general meaning that it may be said to embrace any phase of human life, physical, intellectual, moral or spiritual that may be considered to be a state of well being with reference especially, as Webster’s International Dictionary of the English Language states, to “condition of health, happiness, prosperity or the like” or “exemption from evil or calamity,” the Legislature, by Chapter 9274 of the Session of 1923 attempted to, and, according to the majority opinion, did create an administrative agency for such counties in this State as have a population of over one hundred thousand according to the last Federal census, with powers which partake of the character of judicial, legislative and executive functions. Under this classification the Act applies only to the County of Duval.

The purpose of the Act was to create a “welfare” agency. It was .named in the title “County Welfare Board.” The word “County” merely restricts the territorial activities of the “Board” while the latter word is merely descriptive of the “outward evidence of the inward grace;” so the subject of the Act, as expressed in the title, was the “Welfare” of the County. It possessed the merit of brevity as required by the Constitution, Sec. 16, Article III, but shattered both the letter and spirit in *292so far as they require singleness of subject for legislative acts.

The Act classifies the eligible office holding population of the County into two classes: male and female. The basis of this classification, as all good men will probably concede, is spiritual. If the two sexes possess in equal degree all office holding qualifications there is obviously no need for the classification. Therefore, in the legislative view one sex must necessarily ppssess a qualification for '“'Welfare” work which the other either does not possess, or possesses in smaller degree.

In so far as qualification- for office involves physical endurance, mental ability and moral integrity the equality of the sexes is possibly conceded by the people’s legislative and judicial employees. So that in the field of governmental activities there is no basis for the classification of our agents in so far as physical, moral or mental qualifications are concerned. If any other qualification is required it must be found in that part of man’s nature where soul dominates the life and shapes the character’, enabling one with greater accuracy and clearer vision to perceive the line between good and evil which so often is obscured by selfish interests, partisan considerations or racial prejudices.

As if in challenge of the poet’s assertion that the “Female of the species is more deadly than the male” the Legislature, composed exclusively of the male sex, provided that the “Board’s” membership should consist partly of men and partly of women; but that this “progressive” recognition of women, as a governmental factor, might not be too far reaching and her spiritual influence too ethereal for common welfare they put her, as a class, in a hopeless minority as if the 'word of promise might be held to the ear’ and when occasion required, if ever it *293should, might be “broken to the hope.” But it is not with the wisdom of an act nor the accuracy of legislative findings of fact as a basis for a rule of conduct that the Court has to deal, but with limitations imposed by the natural rights of man and the letter and spirit of the Constitution upon legislative activities.

In view of the Nineteenth Amendment to the Federal Constitution there exists no principle in government upon which women, as a class, may be excluded from service as governmental officers. To limit, therefore, her membership upon any board, commission, court or legislature to a minority is to assert the power of reducing her opportunity for service to a negligible quantity. Eligibility to office does not rest upon considerations of sex nor does woman’s qualifications for public service rest upon assumed spiritual endowments, or beauty of soul, nor peculiar faculty for discerning the distinctions, with clearer perceptions between right and wrong than her male compatriot. As a qualified member of the electorate she is, so far as constitutional, logical, legal, physical, moral and intellectual inhibitions are concerned, free and qualified to become an official of the government in any of its branches; and being so qualified her activities cannot be limited to that sphere of influence to which she may be assigned by her generous but mistaken fellow citizens of the male persuasion. The governmental agency called “County Welfare Board” being created the Constitution intervenes and requires the membership to be selected either by the people at an election or by the Governor by appointment. Sec. 26, Art. Ill, Constitution.

Qualifications, in addition to those of citizenship and age, may be prescribed by the Legislature for holding public office but there must be some relation between the qualifications prescribed and the duties to be performed. *294It is difficult to understand by what process of reasoning, or principle of political science, it may be said that a woman is qualified to hold office as a member of a commission only when the female members thereof number three, or less, but when the board or commission has among its membership four women no other woman is qualified for membership, although there may be five vacancies upon the board to fill. The theory under which a man qualified in every respect to hold office is said to be qualified only when there are four or less members of his sex on the board, and not qualified if there are more, is equally incomprehensible.

The able counsel for 'the plaintiff in error in his brief says: “What the act attempts is nothing more nor less than a legislative prescription of sex as a qualification for holding a State office.” I quite agree with that view. As he states: “viewed from any angle.it gets back to that”.

In the elaborate opinion of Mr. Justice Whitfield, who expressed the view of the majority in this case, the statement is made, after some reference to the power of the Legislature to prescribe qualifications of officers, that “the provision requiring both men and women to be appointed on the Board merely recognizes the inherent differences between men and women immutably fixed by nature and also recognizes political equalities imposed by law upon men and women, and qualifies both men and women electors for appointment under the Act”. Continuing he says: “This is' permissabla even though the number of each sex to be apointed is prescribed, smce all the electors of' the county are the body ' from which the Governor appoints, and designating the number of each sex that may be appointed is merely incidental to the express qualification of■ all electors for apointment.” .

*295There is no text book or decision quoted or cited in support of the assertion that sex may constitute the basis of a classification of persons, who possess the qualifications for office, for the purpose of limiting the number of either class that may participate in the discharge of governmental duties and the exercise of sovereign power. Just what are the “inherent differences between men and women immutably fixed by nature”, when considered in reference to capacity for, of efficiency in, the discharge of the duties of a public office, we are not advised. Yet, a constitutional executive power is taken away and the act justified by an assertion supported by no precedent, principle nor theory in governmental science, nor judicial utterance.

Aside from mere sex differences, what are the “inherent differences between men and women immutably fixed by nature” which in the interests of government and public welfare should be considered to the end that there must be a predominance of one sex over the other in certain activities of government which may be classed under the head of human or community “welfare”? If woman possesses any quality of spirit or mind not possessed by the male (I do not use the overworked and meaningless phrase “heart or brain” for reasons that are well understood) that peculiarly fits her for membership on “welfare” boards over her male fellow citizens it would seem to be inconsistant to restrict her influence and atrophy her good qualities by limiting her opportunities for a full and complete exercise of them.

Nor do I understand what is meant by the words: the Act “recognizes political equalities imposed by law upon men and women, and qualifies both men and women electors for appointment.” The political equality of men and women was recognized and imposed by the Nineteenth *296Amendment. It did not require an Act of the Legislature to render that recognition efficient or to establish her political status as one qualified to hold office.

The Act clearly attempts by this classification of persons by sex to “limit the exercise of the Governor’s executive judgment and discretion in selecting for appointment from among persons who are qualified for appointment under the provisions of the act itself.” . This is true because all qualified electors in the county in which the board is created are eligible to appointment under the Act, but the Act restricts the power by requiring the appointment of part of the membership of the board from certain classes of persons. Westlake v. Merritt, 85 Fla. 28, 95 South. Rep. 662.

Since the Nineteenth Amendment sovereignty, in so far as that word signifies supreme political power as evidenced by the might of the ballot; the power that determines and administers the government of a State in the final analysis, is vested in woman as completely as in the other sex. Politically sex makes no difference and cannot be the basis of classification in determining eligibility to office. To discriminate between the sexes as the Legislature attempted by this Act to do renders it as objectionable to the principles of free government as ordained by our constitutions and established, we hope, for all time in this Country, as any attempted discrimination between races.

I concur in the views expressed by Mr. Justice Browne, in his dissenting opinion, upon both propositions that the Act violated the provisions of Sections 16 and 27 of Article III of the Constitution.

I am also of the opinion that the Act violates the provisions of Section 20, Article III, of the Constitution inhibiting the passage of local.laws regulating the jurisdiction and duties of any class of officers, except municipal *297officers, and for the collection of taxes for county purposes. According to the classification of counties by population, as in the Act under consideration, Duval County was at the time of the passage of the Act the only county in the State with a population of over one hundred thousand according to the “last Federal census.” The last Federal census was taken in the year 1920 and the result was known in 1923. To limit the application of the provisions of the Act to “each County in Florida having a population of over one hundred thousand according to the last Federal census” was as definite a description of .the County of Duval as if the County had been designated by name or. territorial boundaries. If the Act had provided that its provisions should apply to every county when- • ever, by a Federal census, it should appear to have a population of over one hundred thousand the purpose of limiting its provisions to the County of Duval would have been a little more effectively screened. The eensus of 1920 was as definitely designated by the term “last Federal census” as if the language of the Act had designated it by the year in which the eensus was taken.

By the Act in question the duties and jurisdiction of the class of officers to be known as “members of the County Welfare Board” were regulated. The jurisdiction and duties also of the Board of County Commissioners of Duval County were affected by the provisions of the Act. Because within the scope of “Welfare” activities, as outlined by the Act, the duties and jurisdiction of the Board of County Commissioners were practically transferred to the “Welfare Board,” in so far at least as such duties relate to the care of certain corporate property; to building and keeping in repair some of the' county buildings; the representation of the county in the prosecution and defense of some legal cases; to the care and providing *298for the poor and indigent; to the apportionment and ordering . of the levy of certain county taxes and to the approving of certain accounts against the county. So the Act was special and local and dealt with at-'least two of the subjects forbidden by Section 20 of Art. Ill to be dealt with by local or special legislation.

But the majority opinion asserts that the Act is not “special or local law” because it is based upon a “proper classification that is potentially applicable throughout the State, in that any county may acquire a population of over 100,000, though only one county may now be in that class. ’ ’

But that reason rests upon an assumption that is not justified by either the language of the Act or any meaning of its language that the laAvs or rules of statutory construction would permit, and upon the further assumption that classification on the basis of population is a valid classification upon which to base a statute dealing with the subjects covered by the Act. The Act went into effect July 1, 1923. The first sentence of the first section is as follows: “There is hereby created a County Welfare Board in each County of Florida having a population of over one hundred thousand according to the last Federal census.” There is no ambiguity in this language. Its meaning can only be regarded as doubtful by one who thinks that its language should have been different. The use of the word “last” in describing the Federal census, according to which the counties in Florida are to be tested or classed by population, renders the Act impossible of application to any county in Florida except Duval County. To say that the classification is “potentially applicable throughout the State” it is necessary to eliminate the word “last” as descriptive of the census by which the counties are to be designated as counties in which a “Wei-*299fare Board” may he created, and interpolate others to make the sentence thus altered conform to the rules of grammatical construction or syntax.

It is unusual in construing a statute to eliminate words used or interpolate others not used by the law-making body. It is equally unusual to resort to interpretation or construction when the language is plain and unambiguous, but it is beyond all precedent to eliminate words used by the Legislature and interpolate others in interpreting a statute, the words of which are plain and of definite and precise meaning, even when used in their common ordinary and generally understood sense.

“In interpreting the words of a statute the courts perform no function of legislation, but seek only to ascertain the legislative intention and where the language is plain, definite in meaning without ambiguity, it needs no interpretation or construction and itself fixes the legislative intention.” Fine v. Moran, 74 Fla. 417, 77 South. Rep. 533.

The above case cited in the majority opinion with others does not support the text to which it is cited in that opinion, but on the contrary contains the language which is quoted above, which rule has obtained in this State since its early history.

As stated in that case it is not within judicial power to “ correct supposed errors, omissions or defects in legislation” and the practice of doing it is most dangerous to our institutions and form of government.

A statute is not to be read as if open to construction as a matter of course. It is only in the case of ambiguous statutes of uncertain meaning that the rules of construction have any application. Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable there is no room for construction and *300the courts are not permitted to search for its meaning beyond the statute itself. See Caminetti v. United States, 242 U. S. 470, 37 Sup. Ct. Rep. 192, Ann. Cas. 1917-B 1168, L. R. A. 1917-F 502; 25 R. C. L. 957; 36 Cyc. 1102 and numerous authorities cited.

This rule is elementary. It seems idle to cite authorities in support of it. When such elementary principles of the law are not observed, principles which, like the one involved here and referred to immediately above, are of peculiar value to the maintenance of the American theory of the division of the powers of government, one begins to consider how insecure are our privileges, even liberties, as American citizens. Both the letter and spirit of the Constitution are opposed to the purpose of the Act, which seems to be the management of a great part of the internal affairs of a county by a commission appointed at Tallahassee, the Capital, Suburban Inv. Co. v. Hyde, 61 Fla. 809, text 812, 55 South. Rep. 76, and this purpose is sought to be accomplished by-classification of counties by a property or characteristic in no wise related to the subjects dealt with by the Act, which grouped under the title, provision for inhabitants who by reason of age, infirmity or misfortune have -claims on the aid and sympathy of society, are many, and its rfiachinery for carrying out such purpose to consist of a Board composed of members who are classified according to sex, one class of which to be forever held in minority because of the “inherent differences” existing between her sex and the sex of the majority of such Board.

Is such legislative purpose to be upheld by judicial remodeling of the Act by the elimination of words and the interpolation of others, which latter is essential to preserve even a semblance of the rules of grammar when the objectionable word is removed?

*301In 1923 the “last” Federal census was the census of 1920; and, that census is not applicable, and cannot be made applicable under the Act, to any county in the State biit the County of Duval. Hence the words “the last” must be eliminated and when eliminated the sentence would be- very ambiguous because there would be doubt as to whether a particular census of the past was in the legislative mind or whether it had in mind any census that might thereafter be taken. So it’ becomes necessary to interpolate other words to perfect the sentence thus, mutilated; But such performance never was, and is not now, the function of courts where the words as used by the Legislature are clear in meaning according to their usual and generally understood use.

It is said that the subject is the establishment and maintenance of county hospitals for the care of the county indigent who are sick or may become ill. But that limits the meaning of the word “Welfare” to only one of its many significations, each one of which, in our complex social relations and conditions, constitutes a subject within itself.

Under the Act the County “Welfare Board” shall: “Provide for those of the inhabitants of its county who by reason of age, infirmity, or misfortune have claims upon the aid and sympathy of society.” These are the words of the Constitution. See Sec. 3, Art. XIII, which requires this duty to be performed by counties. That is ta-say, through county organizations and at county expense. “The provisions of the organic law contemplate the existence of a Board of County Commissioners who are general administrative officers of the county.” See Suburban Inv. Co. v. Hyde, supra. Yet, here is a duty involving varied activities, many of which unrelated, from the education of indigent children to the burial of indigent *302persons, whether old or yonng. To prepare them, the indigent, who, when born or because of age, infirmity or misfortune, have claims upon the aid and sympathy of society, for adjustment to the demand of that society with its intricate and complex relations between individuals. To meet this requirement Foundling Asylums; homes for the children of indigent parents where food and clothing are supplied; homes for indigent adults; schools for such children; hospitals and cemeteries for all and all the accessories to these, including supply 'depots for food, clothing and drugs, must be provided, operated and maintained.

This great demand upon the counties, this moving appeal to humanity, the urgent call for the sympathy and aid of society, occurs only when a county has a population of one hundred thousand, according to the legislative idea as expressed in the Act under consideration. So population is made the basis of classification of counties in relation to the humanitarian activities required of all counties by the Constitution.

It is probably impossible to lay down any rules, except rules most general in character, for determining a proper basis of classification for legislative purposes. The Legislature cannot adopt an arbitrary classification. The classification must rest on some difference which bears a natural, reasonable and just relation to the act in respect to which the classification is proposed. It must be based on substantial distinctions which make real differences and are germane to the purposes of the law. ‘‘ Classifications adopted for legislative regulation should, have some relation to, or reasonable basis in, essential differences of conditions and circumstances with references to the subject regulated, and should not be merely arbitrary.” See Seaboard Air Line Ry. v. Simon, 56 Fla. 545, 47 South. Rep. *3031001; 6 R. C. L. 381-383; Jacksonville, T. & K. W. Ry. Co. v. Prior, 34 Fla. 271, 15 South. Rep. 760; 36 Cyc. 992.

While in the exercise of its power to make classifications for the purpose of enacting laws the Legislature has a wide range of discretion, the question becomes a judicial one when there is no reason for the law that would not require with equal force its extension to those persons whom it leaves untouched. See Barrett v. State of Indiana, 229 U. S. 26, 57 L. Ed. 1050, 33 Sup. Ct. Rep. 692.

Classification on the basis of population for the purpose of legislation, upon the' subject of special provisions for the inhabitants of a county, who by reason of age, infirmity or misfortune may have claims upon the aid and sympathy of society (Sec. 3, Art. XIII, Constitution) is obnoxious to the objection that it is special legislation as to the affairs of counties. See Murray v. Board of County Commissioners 81 Minn. 359, 84 N. W. Rep. 103.. 83 Am. St. Rep. 379.

The Act violates the provisions of Sec. 3, Art. XIII, also Sec. 1 off the same Article which requires institutions with many of the powers to be exercised by the “Welfare Board” to be “fostered and suported by the State.” A “general hospital, clinic and out-patient department” “for the medical and surgical diagnosis and treatment of human diseases of all kinds” and the extension of the facilities of such hospitals to persons who. are not indigent and to non-residents and requiring the “Board” to make annual reports to the Governor of “its family welfare, work and its hospital work, including the number of patients, various sums received from taxes and other sources, and how and for what purpose such monies, have been expended” is a state institution of the kind contemplated by Section 1 of Article XIII.

There are other objections to the Act in view of Con*304stitutional limitations upon legislative power that are apparent from a casual reading of the provisions of the statute, but it is unnecessary to discuss them.

I think that the orders sustaining the demurrer to the information and granting the motion to quash it wefe erroneous and should be reversed.