Waybright v. Duval County , 142 Fla. 875 ( 1940 )

I am unable to agree to the majority opinion in this case.

From a final decree sustaining the constitutionality of Chapter 19180, Laws of Florida, Acts of 1939, made and entered by the Circuit Court of Duval County, Florida, an appeal has been perfected to this Court and several assignments of error are presented and argued in this Court for a reversal.

Chapter 19180, supra, creates a Civil Service Commission for all counties in Florida having a population between 165,000 and 180,000 population, based on the last State or Federal census. The Act prescribes what employees shall be under the Civil Service regulation; defines civil service, and defines the rights and duties of county employees thereunder. A Civil Service Commission is created with prescribed duties and powers, and a method adopted for the appointment of the members thereof.

A summary of the Act is that it undertakes to protect from the fortunes and misfortunes of political upheavals faithful employees who have spent years in the service of the counties falling within the population brackets. It gives or affords them security from ruthless dismissals and thereby presents an opportunity to acquire homes, rear and educate their children, allows vacations, sick leave benefits, encourages honesty and faithfulness, and provides for promotions and increases in pay for efficient services. It is another step in a program for the amelioration of the conditions and circumstances of those compelled to win their bread by the sweat of the brow.

The chancellor below, in the decree entered, in considering the objective of the Act, said: "The creations of a Civil Service Commission in large counties where there are many employees is no doubt a worthy undertaking. Acts of this nature seek to protect those who have been in the employ of the county for many years and renders their tenure more secure." The Act is in accord with steps taken by progressive communities of the nation, but the Legislature of Florida was about a quarter of a century slow or behind many other states in its enactment.

The Supreme Court of Florida, more than fifty years ago, held that a liberal rule of construction or interpretation of statutes should be applied when the constitutionality thereof is called into question and every reasonable doubt should be resolved in favor of the validity of the statute assailed. It is the duty of the court, in deference to the legislative department of the government, to uphold a statute unless it is clearly made to appear beyond a reasonable doubt that the statute is unconstitutional. See Atlantic Coast Line R. Co. v. Coachman, 59 Fla. 130, 52 So. 377, 20 Ann. Cas. 1047; Campbell v. Skinner Mfg. Co., 53 Fla. 632, 43 So. 874; State v. Sullivan, 95. Fla. 191, 116 So. 255; Holton v. State, 28 Fla. 303, 9 So. 716; State v. Rose, 97 Fla. 710, 122 So. 225; State v. Burns, 38 Fla. 367, 21 So. 290; Dutton Phosphate Co. v. Priest, 67 Fla. 370, 65 So. 282. The law presumes that the lawmaking power intended a valid, constitutional enactment. See State v. Phillips, 70 Fla. 340, 70 So. 367; Hires v. Mitchell,95 Fla. 345, 116 So. 81.

Counsel for appellant contend that Chapter 19180,supra, is unconstitutional and void and passed by the Legislature as a general law, but not within the constitutional requirements of special or local legislation, and that the population brackets being fixed at between 165,000 and 180,000 renders the Act unreasonable, arbitrary and an unlawful classification.

Fault cannot be found with the authorities of State ex rel. Railroad Com'rs v. A. C. L. R. Co., 60 Fla. 465, 54 So. 394, and Goldstein v. Maloney, 62 Fla. 198, 57 So. 342, cited in the majority opinion, and holding to the effect that a reasonable basis msut exist in the statutes for the classification and the classification must not be arbitrary, or with the cases of State v. Daniel, 87 Fla. 270, 99 So. 804; and State ex rel. Buford v. Smith, 88 Fla. 151, 101 So. 350. There does not exist under the decisions of Florida legal justification or reason for the striking down of this humanitarian statute as similar statutes have been by this Court sustained.

In the case of State ex rel. Landis v. Wheat, 103 Fla. 1,137 So. 277, the Court had before it the question of the constitutionality of Chapter 10501, Acts of 1925, creating the office of Auditor and Purchasing Agent for Dade County and prescribing his official duties and fixing the amount of his salary. It was contended that the Act was a local law and violated Sections 20 and 21 of Article 3 of the Constitution of Florida. The Court said:

"The statutory office created by the enactment is the only one in the class and the regulation of the duties and compensation of the officer is an incident to the creation of the office, there being no other of that class. In State exrel. Cohen v. O'Neal, 99 Fla. 1053, 128 So. 489, the provision of Chapter 11363, 11982 and 13611, regulating the fees of Clerks of the Criminal Courts of Record were held invalid because there were other Clerks of the Criminal Courts of Record in the class with the relator in that case, and Section 20, Article III of the Constitution forbids local or special laws regulating the fees of any class of officers except municipal officers. In Knight v. Board, decided at this term, the statute was designed to regulate the duties of the Board of Public Instruction in one county, there being such a Board in all the counties. Consequently the Act violated Section 20, Article III of the Constitution.

"The statute in this case is not designed as a regulation of the jurisdiction and duties of County Commissioners, and of the Clerks of the Circuit Court. Even if the statute by its operation regulates the duties of County Commissioners and of the Clerk of the Circuit Court in Dade County, it is merely an incident to the creation of a statutory office in the county, and the regulation of the duties of the officer. But the duties prescribed for the Auditor and Purchasing Agent are additional and supplemental and do not change or regulate the duties of the County Commissioners or the Clerk of the Circuit Court for Dade County within the meaning of Section 20, Article III. The statute does not purport to regulate the jurisdiction and duties of County Commissioners or of the Clerk of the Circuit Court; and the Auditor and Purchasing Agent for Dade County created by the enactment was then the only such officer in the State; and as to him the statute had the effect of a general law."

The statute supra transferred some of the official duties of the Clerk of the Circuit Court of Dade County to the Auditor and Purchasing Agent of Dade County. The Court held that the law was constitutional. In the case at bar the administrative duties now resting on the county officers of Duval County in the hiring of employees are merely transferred and given over to the Civil Service Board, as the Clerk's administrative duties were transferred to the Auditor and Purchasing Agent of Dade County.

Chapter 9274, Acts of 1923, Laws of Florida, was, viz.: "AN ACT Creating a County Welfare Board for Each County Having a Population of Over One Hundred Thousand; Prescribing Its Powers and Duties; Providing for Its Financial Support and Providing for the Qualifications of Its Members, etc." It will be observed that Chapter 9274 affects counties having a population of 100,000 or more according to the last Federal Census and it was admitted on the record that it applied only to Duval County. The Court sustained the Act against an attack as an unreasonable and arbitrary classification based on a population basis and the Court, speaking through Mr. Justice WHITFIELD, in the case of State ex rel. BUFORD, v. Daniel, 87 Fla. 270 (text pp. 286-8),99 So. 804, said:

"Chapter 9274 is not a 'special or local law,' for the reason that it is a law 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. The provision 'according to the last Federal census' is progressive and has reference to each Federal census as it occurs. Ex Parte Wells, 21 Fla. 480; State ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 363,27 South. Rep. 221; Collier v. Cassady, 63 Fla. 390,57 South. Rep. 617; Givens v. Hillsborough County, 46 Fla. 502,35 South. Rep. 88; Whitaker v. Parsons, 80 Fla. 352, 86 South. Rep. 247; Carlton v. Johnson, 61 Fla. 15, 55 South. Rep. 975; Fine v. Moran, 74 Fla. 417, 77 South. Rep. 533; Bloxham v. Florida Cent. P. R. Co., 35 Fla. 625, 17 South. Rep. 902; Harwood v. Wentworth, 162 U.S. 547, 16 Sup. Ct. Rep. 890; Ex Parte Loving,178 Mo. 194, 77 S.W. Rep. 508; State ex rel. v. Condon,108 Tenn. 82, 65 S.W. Rep. 871; Cook v. State, 90 Tenn. 407,16 S.W. Rep. 471 Archibald v. Clark, 112 Tenn. 532,82 S.W. Rep. 397; City of Indianapolis v. Navin, 151 Ind. 139,47 N.E. Rep. 525, 51 N.E. Rep. 80; 25 R. C. L. 818; 227 U.S. 51; Ann. Cases 191 B. 968; 124 Tenn. 235.

"Uniformity of operation throughout the State does not require universality of operation throughout the State. The former relates to similarity of conditions affecting subjects or localities of the State that are appropriately classified. The latter relates to the whole and every part of the State.

"A statute relating to subdivisions of the State or to subjects or to persons or things as a class based upon proper distinction and differences that inhere in or are peculiar or appropriate to the class, is a general law; while a statute relating to particular subdivisions or portions of the State or to particular places of classified localities, is a local law; and a statute relating to particular persons or things or other particular subjects of a class, is a special law. See 17 Fla. 238.

"Classifications of counties for governmental purposes based upon population is permissible in enacting general laws. Clark v. Finley, 93 Tex. 171, 54 S.W. Rep. 343; Farnum v. Warner,104 Cal. 677, 38 Pac. Rep. 421; Thomas v. State, 136 Tenn. 47,188 S.W. Rep. 617; State v. Ames, 91 Minn. 365,98 N.W. Rep. 190; Hall v. State, 124 Tenn. 235, 137 S.W. Rep. 500; Russell. v. Esmeralda County, 32 Nev. 304, 107 Pac. Rep. 890; Murphy v. State, 114 Tenn. 531, 86 S.W. Rep. 711; Cooper v. Rollins,152 Ga. 588, 110 S.E. Rep. 726, 20 A. L. R. 1105; Commonwealth v. Blackley, 198 Pa. 372, 47 Atl. Rep. 1104.

"The decision in Murray v. Board of Com'rs of Ramsey County,81 Minn. 359, 84 N.W. Rep. 103, on the facts under the controlling organic law is not in conflict with the above citations.

Even if the statute may be regarded as a local or special law, such laws are by the Constitution expressly authorized for purposes of county government (Sec. 24, Art. 3), and the Act is not for the 'assessment and collection of taxes,' or 'regulating the jurisdiction and duties of any class of officers' within the meaning of Section 20, Art. 3 of the Constitution, but it is for the establishment of a public instrumentality to serve a county purpose, not in conflict with, but consonant with the command of Section 3, Article 13 of the Constitution that The respective counties of the State shall provide in the manner prescribed by law for those of the inhabitants that by reason of age, infirmity or misfortune, may have claims upon the aid and sympathy of society.'"

In the case of Beasley v. Cahoon, 109 Fla. 106, 147 So. 288, the court had before it constitutionality of Chapter 10177, Acts of 1925, Laws of Florida. The Act was designed to regulate the business of making loans in certain counties having a population of 40,000 or more, according to the last Federal census, in the sum of $300.00 or less, at a greater rate of interest than 10 per cent per annum, and to violate the Act was made a misdemeanor and punishable by fine or imprisonment. The Act was attacked on the ground of unlawful classification by population and on the further ground it was a special Act in that it violated Section 20 of Article 3 of the Constitution of Florida, wherein it was made a crime or misdemeanor to do certain things in one county which were unlawful in another. The Act was sustained by this Court against the attack of unlawful classification on a population basis, and in so doing, said:

"The statute does not apply 'to counties having a population of less than forty thousand, taken from 1925 census or any subsequent census.' The organic sections require laws 'for the punishment of crime or misdemeanor to be of 'uniform operation throughout the State,' but do not require such laws to be ofuniversal operation, and permits classifications of subjects for statutory regulation by general laws, when the classification has a basis in real differences of conditions affecting the subject regulated, and the classification applies in general to all similarly conditioned with reference to the subject regulated; and a classification may be based upon the population of counties, even though the Act does not embrace all counties that could have been included, or omits some that need but do not have statutory regulation, where the classification made is not merely capricious. State ex rel. v. Daniel, 87 Fla. 270, 99 So. 804; Sparkman v. Co. Budget Com., et al., 103 Fla. 242, 137 So. 809. This Act requires the exercise of a governmental function in licensing and regulating the business of making small loans, and is designed to remedy an evil which the Legislature conceivably and reasonably found to exist chiefly in the more populous counties of the State. This renders the classification valid, even though the evil also exists and is unregulated in other counties to which the Act does not apply. The statute is potentially applicable to every county of the State. Collier v. Cassady, 63 Fla. 390, 57 So. 617; Sparkman v. Co. Budget Com.,et al., 103 Fla. 242, 137 So. 809. * * *

"As shown by its preamble, set out in the statement hereto, the enactment is designed to remedy an existing evil, which the Legislature conceivably and reasonably could, and apparently did, determine was more pronounced and harmful in the more populous counties of the State. The lawmaking power may under its police power, as was done in this case enact regulations that are not all embracing; and may classify regulatory enactments with reference to degrees of evil and to the location where the evil is most harmful, without denying the equal protection of the laws. If the greatest of the evils sought to be remedied exist in the counties having relatively large populations, statutes may determine the lines of differentiation without denying to any person the equal protection of the laws. No one can justly or legally demand all the rights or exceptions enjoyed by others if there is a reasonable basis for the discrimination complained of; and those who assert an unjust discrimination by the State in violation of the Federal Constitution, have the burden of showing that the asserted discrimination has no conceivable basis in differences of conditions, sufficient to justify the statutory regulation complained of. No such showing is made in this case. The opportunities in the larger counties for the abuses sought to be remedied by this statute afford a sufficient basis for a classification on a 40,000 population unit, Lindsley v. Natural Carbonic Gas Co.,220 U.S. 61, 31 Sup. Ct. 337, 55 L.Ed. 369; Mutual Loan Co. v. Martell, 222 U.S. 225, 32 Sup. Ct. 74, 56 L.Ed. 175; Keokee Consolidated Coke Co. v. Taylor, 234 U.S. 224,34 Sup. Ct. 856, 58 L.Ed. 1288; Miller v. Wilson, 236 U.S. 373,35 Sup. Ct. 342, 59 L.Ed. 628; Rast v. Vandeman Lewis Co.,240 U.S. 342, 36 Sup. Ct. 370, 60 L.Ed. 679; Whitney v. California, 274 U.S. 357, 47 Sup. Ct. 641, 71 L.Ed. 1095. * * *"

It is difficult to determine the constitutional distinctions between Chapter 19180, Acts of 1939, involved in the case at bar, and Chapter 14678, Acts of 1931, creating the County Budget Commission of Hillsborough County, which this Court sustained against all constitutional attacks in the case of Sparkman v. Co. Budget Com., 103 Fla. 242, 137 So. 809. The identical attacks on constitutional grounds were made on the Budget Commission Act and sustained by this Court, as are now being made against Chapter 19080, Acts of 1939, being the Civil Service Commission Act for Duval County. There is no constitutional difference in the two Acts.

The title to Chapter 14678, Acts of 1931, is viz.:

"AN ACT to Create a County Budget Commission in Counties Having a Population of More Than One Hundred and Fifty Thousand by the Last Preceding State or Federal Census to Prescribe the Powers, Duties and Functions of such County Budget Commission and the Qualifications, Terms of Office and Methods of Appointment or Election of Members Thereof; and to Authorize Such County Budget Commission to Make and Control the Budgets of Receipts and Expenditures of the Board of County Commissioners, Board of Public Instruction, County Welfare Board, Parental Home Board and all other Boards, Commissions and Officials of such Counties or of Taxing Districts (except School Districts) Situate Therein Authorized to Raise and Expend Moneys for County District Purposes."

The Court, in sustaining the above entitled Act, bottomed its holdings on the same authorities as cited in State, ex rel. Landis v. Wheat, State ex rel. Buford v. Daniel, and Beasley v. Cahoon, supra, and said (103 Fla. text pp. 247-8, 249-50):

"Chapter 14678 is not a local law since it makes a reasonable classification of counties for the statutory enactments. It applies to all 'counties having a population of more than one hundred and fifty thousand by the last preceding State or Federal census.' The reference to the last preceding census is progressive and all counties may in time attain the stated population. See State ex rel. v. Smith, 88 Fla. 151,101 So. 350; State ex rel. v. Daniel, 87 Fla. 270, 99 So. 804. * * *

"It is within the province of the legislature to regulate the amounts paid for assistants and other office expenses, so as to insure that such expenditures shall be 'reasonable.'

"Where as in this case an administrative tribunal is authorized to determine what is a reasonable amount to be paid for office assistants and expenses, the statute contemplates that such determination shall be upon a due consideration of appropriate data relating to the reasonable requirements for the help and other expenses in the particular office; and such determination of reasonableness, if an abuse of authority, is subject to judicial review in appropriate proceedings.

"The statute provides that expenditures by county officers for the salaries of clerks and assistants and the necessary expenses for the operation of the offices respectively shall be 'reasonable.' This is the standard fixed by the law, and statutes may authorize an administrative board to determine, subject to judicial review, what are such reasonable expenditures, without making an unlawful delegation of legislative power. See R. R. Com. v. P. A. R. R. Co., 24 Fla. 417, 5 So. 129, 12 Am. St. Rep. 220, 2 L.R.A. 504; State v. A. C. L. Ry., 56 Fla. 617, 47 So. 969, 32 L.R.A. (N.S.) 639; 12 C. J. 847."

In the case of State ex rel. Buford v. Smith, 88 Fla. 151,101 So. 350, this Court had before it the constitutionality of Chapter 8541, Acts of 1921, as amended by Chapter 9314, Acts of 1923. The title to the original Act was not amended by Chapter 9314. The title of the Act provided:

"AN ACT Providing for the Creation of the Office of Traffic Officer, and Providing for the Appointment, Compensation, Expenses, Duties and Powers of such Traffic Officer, and the Term of Office, in Counties of More Than Eighty Thousand and Less than One Hundred Thousand Population, According to the Last Preceding Federal Census."

This Court sustained the Act against a constitutional attack on an arbitrary and unreasonable classification on a population basis and in so doing, said:

"The statutes are general laws in that they are applicable to all counties within a proper classification and are potentially applicable to every county of the State since all the counties may attain the requisite population. The classification cannot be said to be purely arbitrary, but it is a reasonable and practical classification within the legislative discretion. If the Acts are local laws they do not violate Sections 20 and 21 of Article III in view of Section 24 of Article III. See State ex rel. v. Daniel, 87 Fla. 270,99 South. Rep. 804."

Chapter 16058, Acts of 1933, Laws of Florida, created a Jury Commission in all counties of Florida having a population exceeding 155,000 by the last preceding Federal census, prescribed their qualifications, method of appointment, powers, duties, functions, official terms, etc. The Act was applicable to all counties in Florida having a population exceeding 155,000. It was admitted of record that the Act would affect no county of Florida other than Duval when enacted. It was argued that Chapter 16058 was a local law and could apply only to one county and passed the Legislature as a local bill; and that the classification as made of counties by population was arbitrary and without any reasonable basis. The Act was sustained by a divided Court. See State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237. This Court considered for the second time the constitutionality of Chapter 16058, and it was fully sustained as against an arbitrary and unreasonable classification on a population basis. See Hysler v. State, 132 Fla. 200,181 So. 350.

Section 1 of Article 12 of the Constitution of Florida requires that the Legislature shall provide for a uniformsystem of public free schools and shall provide for the liberal maintenance of the same. Chapter 18743, Acts of 1937, Laws of Florida, is an Act providing for tenure of employment of teachers in the public schools of Orange County. The application of the Act is limited to the teachers in the public schools of Orange County. This Court, in sustaining the Act against constitutional attacks on grounds of being local legislation and conflicting with the constitutional provision as to a uniform system of public schools, in the cases of Stateex rel. Glover v. Holbrook; State ex rel. Glover v. Munnerlyn, 129 Fla. 241, 176 So. 99, speaking through Mr. Justice BROWN, said:

"By a long line of authorities this Court has held that where the main purpose of a local or special Act is valid and constitutional, and where the effect of such Act upon the jurisdiction or duties of State or county officers is merely incidental to such main purpose, the Act will not be held to be in violation of that provision of Section 20 of Article III of the Constitution which prohibits the passage of special or local laws regulating the jurisdiction and duties of any class of officers except municipal officers. See: Lainhart v. Catts,73 Fla. 735, 75 Sou. Rep. 47; Krogel v. Whyte, 62 Fla. 527,56 Sou. Rep. 498; State v. Fearnside, 87 Fla. 349,100 Sou. Rep. 256; Apgar v. Wilkinson, 95 Fla. 457, 116 Sou. Rep. 78; Jackson Lumber Co. v. Walton County, 95 Fla. 632,116 Sou. Rep. 771; State v. Wheat, 103 Fla. 1,137 Sou. Rep. 277. Without attempting any review of the cited cases, we think these previous decisions by this Court are sufficient answer to this attack upon the constitutionality of the Act. * * *

"Somewhat for the same reasons which moved the Court to hold that this special Act is not in contravention of that provision of the Constitution which prohibits the regulation by special or local laws of the jurisdiction and duties of any class of officers except municipal officers, a majority of the Court are of the opinion that said Act now under review cannot be held to be in conflict with said Section 1 of Article XII. The purpose of the Act, as stated in its title, is 'to provide for the tenure of employment of teachers in the public schools of Orange County,' and the majority of the Court are of the opinion that the provisions of the Act to that end are not such a departure from the constitutional provisions above referred to as would authorize this Court to hold the Act unconstitutional and void. * * *"

It appears to be well established law that a statute which classifies cities or other localities to be governed by its provisions by a given or fixed population according to the last United States census will be held to apply to all other cities or localities which under any Federal census may in the future pass into such class and is therefore valid. See 12 Am. Jur. 170, par. 489; 6 A. C. L. 388, par. 380; 16 Corpus Juris Secundum, page 963, Subsection (b) par. 494; 59 C. J. 759, par. 351.

The previous holdings of this Court in the decisions cited are, broadly speaking, in accord with the general authorities last cited.

An examination has been made of the many authorities cited by counsel for appellant, but when each is carefully studied and analyzed, the conclusion is inevitable that these cases have no influence on the case at bar.

The decree appealed from should be affirmed.

ON PETITION FOR REHEARING