State, Ex Rel. v. Lee , 121 Fla. 360 ( 1935 )

This suit originated as an attempt by one $225.00 a month college teacher to collect his August salary he had already earned for services rendered in the State's summer school, which is a school primarily set up and maintained for the training of teachers in the common school system of Florida in order that such teachers might continue qualified to teach and in some cases secure life certificates so to do.

Thus the Supreme Court of Florida, as a judicial tribunal, has been called upon in this case to rule (if it dared) in favor of the constitutional rights of a single college teacher, as against the claimed statutory rights of 15,000 organized voters of this State whose intent to visit political reprisals on the members of the Supreme Court, if they dared to rule against them, has been covertly, if not openly, asserted as the program of the more numerous group.

This is a government of laws and not a government of men. If the courts of the land can no longer safely undertake to pass upon legal rights presented to them for adjudication, regardless of the relative voting strength of the litigants before them, then indeed, as predicated by the great historian, Macaulay, democracy in the United States has degenerated into an "anonymous tyranny" by the political mass as a substitute for the individual tyranny of an hereditary monarch, and freedom under the law and constitutional government in these United States and in this State is no longer more than a nominal form, vacillating, unstable and uncertain.

My experience as a member of the Legislature has convinced me that any compactly organized group of voters can force through the Legislature any enactment (constitutional or unconstitutional), provided it is not opposed by some organization of equal or greater numbers. This is a melancholy fact, but no governmental realist in politics will dispute its truth.

Now if the courts are to yield to like influences in arbitrarily sustaining as constitutional, legislative Acts that may have been passed in violation of the Constitution, merely because some powerfully organized political group insists that such decision be rendered, right or wrong, then the Courts may as well be abolished as independent agencies of the government, because their independence is no longer a reality and the judges who pretend to preside therein are no longer judges but sycophants, the creed of whom should be the well understood creed of all mere politicians, which is to the effect that "that political course is safest which is one of well considered inaction against any popular idea."

I am loath to believe that intimidation of the Courts has now become a part of Florida's common school educational program, or that political reprisals are to be the order of the day by those educators whom the people have entrusted to educate their children in the principle of respect for constituted authority in the State as represented in its Courts, as well as to train them in ordinary educational subjects.

However, if such be the fact (which I do not believe is so), I prefer to take my stand with that conscientious Western Judge, who, when about to be hanged by a mob of organized farmers unless he would promise not to further obey his oath of office by signing foreclosure decrees against them, chose an honorable death rather than a cowardly life of prostitution of his judicial office to other than judicial considerations.

Political "free wheeling" is bad in any department of the government. It is intolerable in a court of justice where the rights of the voter and the non-voter, the resident and the non-resident, the religious and the profane, the patriot and the anarchist, the majority and the minority, must be weighed and judged alike by the cold neutrality of an impartial Court actuated only by the maxim, "Justitia fiat caelum ruat" (Let justice be done though the heavens fall).

Judges must pass upon the law as they find it to have been written, not as they wish it to be. In this respect Judges perform no different qualitative function than do our worthy school teachers who must grade every examination paper turned in by their pupils as they find it to have been written, not as they would wish to have it appear.

No self-respecting school teacher would stultify his conscience and forfeit his self-respect by giving a "passing" grade to a pupil on an examination merely to avoid popular disfavor with some politically influential school patron who might agitate a taking away of his job if he did not do so. Neither can any self-respecting judge, when called on to "grade" a statute in the light of the State's Constitution, "pass" such a statute as a constitutional law when he has fully examined it and found it not to have made a "passing" grade, even though in refusing to do so, he may be politically spanked and made to stand in the corner of office-holding oblivion.

As was stated by this Court in its opinion in Maxcy, Inc., v. Mayo, 103 Fla. 552, 139 Sou. Rep. 121, text page 131:

"When appealed to in a proper case, the judiciary can render no greater service toward the perpetuation of free government than to accord to an individual litigant before it, however humble his station in society may be, the just protection of our fundamental law, when that protection is sought as a means to forestall aggressive combinations bent on employing the power of statutes to penalize the citizen for his rugged individuality in refusing to surrender his constitutional rights to what may be a contrary minded political majority. Vox populi, vox dei, is not the equivalent of salus populi supreme lex esto as recognized by the judiciary in our American system of constitutional law. * * *

I therefore concur in denial of a rehearing in this case.

Realizing the ultra licitem that may be implied in what I have above written and filed to be published as my concurring opinion in this case, because of the absence of any other judicial prerogative on my part to deal with the situation with which I have been personally confronted in connection with certain events and occurrences that have taken place and been brought to my attention subsequent to, but attendant upon, the announcement of the Court's original opinion which was written by me as the chosen spokesman for the Supreme Court, I may add that my declared rebuke is intended for, and is addressed to those unnamed persons only, whose conscience convicts them of being within the purview of the covert activities I have so pointedly denounced as having taken place in connection with this case after the Supreme Court's original opinion was filed and while a petition for rehearing was still pending undisposed of by this Court.

In a spirit of absolute fairness to the Florida Educational Association, and to its counsel, Senator Henry S. Tillman, who has so ably represented it before this Court in this case, I am pleased to be officially advised through correspondence that has been addressed to me since my concurring opinion was filed, that neither the Florida Education Association, nor its able counsel, nor any of its officially accredited spokesmen, have instigated, nor taken part in, the covert activities which I have condemned as an effort, through misguided zeal for the welfare of the common schools of Florida, to commit the voting power of the organized common school supporters of this State to a program of political sabotage of the Florida judiciary in their behalf.

I accept the protestations made on behalf of the Florida Educational Association by counsel for same, as being true, and herewith record the fact of same as a supplement to what I originally stated in my special opinion in order that no one may be by me condemned who is not justly within the purview of my rebuke as determinable solely by the conviction of his own conscience.