In 1929 in an Advisory Opinion to the Governor, the Justices of this Court, the writer dissenting, expressed the opinion that the term "subordinate school officer," as used in Article XII, Sec. 3 of the Constitution, has no reference to (constitutional or statutory officers appointed by the Governor or elected by the people." See Advisory Opinion to Governor,97 Fla. 705, 122 So.2d Rep. 7.
In the case which gave rise to the above opinion the State Board of Education had made an order removing a member of the Board of Public Instruction of Duval County. The Governor desired to be advised whether under Article IV, Sec. 15 of the Constitution, he, as Governor, had the power to suspend the member of the Board, or whether he, as Governor, and the State Board of Education had concurrent *Page 188 jurisdiction in the matter. The conclusion reached was that the matter was exclusively an executive function.
I was of the opinion, as expressed by Mr. Justice TERRELL in that instant case, that "Article XII (Constitution) was designed to be complete in itself for this purpose (that of providing for a uniform system of public free schools) and all statutes designed to effect its purpose should, if possible, be construed to do so." That it was the purpose of the Constitution to make of the subject "uniform system of public free schools," under the title "Education," a special function of governmental activities the history of the subject from the formation of this government to the adoption of the Constitution of 1885, the legislative appropriations, the machinery employed to carry out the plan and the arrangement of constitutional provisions, reasonably prove. As Mr. Justice TERRELL aptly remarks "No other provision of the Constitution attempts in any respect to deal with the subject of public free schools." The foregoing being true, the conclusion that the removal of a subordinate school officer from office was exclusively an executive function was to my mind not justified because the foregoing statements being true no propositions can be put forward from which the conclusion reached in the Advisory Opinion may be drawn.
An Advisory Opinion, however, is not authority in the sense that it is a decision of the Court, because there is no "case" in which a decision may be made.
I think that the term "officer," as used in Section 3 of Article XII of the Constitution, bears the broader or commoner meaning of one who occupying some position or employment whether by appointment or election in some scheme or plan to carry on certain activities is required by law to discharge certain duties, rather than the narrow technical meaning of the term ascribed to it by the Court where the nature of the case requires the application of the narrow *Page 189 meaning. I think the word was used in the general sense above mentioned. "In as much as I am the Apostle of the Gentiles, I magnify mine office." (Italics mine) Romans XI:13.
In that sense the State Board of Education is vested with the power to remove a school trustee in a county under the provisions of the statutes. That such an officer has duties to perform, as required by the statute, that those duties require the exercise of discretion and even partake of the nature of sovereign power are circumstances which may magnify his office, but in no sense afford a sufficient reason for placing the matter of his removal in the power of the Chief Executive and thus to that extent open the "public free school system" to an influence from which the framers of the Constitution desired and intended to protect it.
Although the point is not presented in this case and therefore what may be said upon it is mere dictum, there seems to be no valid reason why the Legislature may not by appropriate legislation provide for the filling of any vacancy that may occur in the office of trustee by the "County Board of Public Instruction."
The county schools do not in and of themselves constitute a county unit in the public free school system separate and apart, independent, absolute, exempt from control of the superior officers of the system; they are but an integral part of an harmonious whole, designed to constitute a system. As was said, in the opinion referred to, by Mr. Justice TERRELL, "Article XII was designed to be complete in itself for this purpose."
I agree therefore that the demurrer should be sustained.