The State of Florida, ex rel. Atlantic Coast Line Railroad Co., Relator, v. The Board of Equalizers of the State of Florida, Consisting of Cary A. Hardee, Governor, Rivers Buford, Attorney General and J. C. Luning, State Treasurer, Respondents, 84 Fla. 592

Browne, C. J. Upon the petition of the Atlantic Coast Line Railway Company, an alternative writ of mandamus was issued to the Board of Equalizers of the State of Florida, consisting of Cary A. Hardee, Governor, Rivers Buford, Attorney General, and J. C. Luning, State Treasurer, commanding them to take jurisdiction of an appeal taken by the relator from the assessment and valuation by the Comptroller of the property of the Atlantic Coast Line Railway Company for taxation for the year 1922.

The petition for the writ alleges that the Comptroller did value and assess the property of the Atlantic Coast Line Railway Company and give notice to the relator of such assessment and valuation; that the relator was dissatisfied with the valuation made by the Comptroller and did enter and file its appeal to the Board of Equalizers of the State of Florida as provided for in

Section 7,

Chapter 8584, Acts of 1921, Laws of Florida. The alternative writ also alleges that the respondent, the “Board of Equalizers-held and decided that it had no jurisdiction of said appeal and declined to hear and entertain and determine the same, upon the ground that the title of the Act constituting

Chapter 8584, Acts of 1921, Laws of Florida, was not sufficient to include the provisions of

Section 6 within such Act. ’ ’ This the return admits, and the effect of this admission and the averment in the 6th paragraph of the return, is, that the respondents refused to obey Sections 6 and 7 of

Chapter 8584, Acts of 1921, Laws of Florida, because they consider them unconstitutional. The sufficiency of this return is challenged by the motion for a peremptory writ. This raises at the outset the question: has a ministerial officer the right or power to declare

an Act unconstitutional, or to raise the question of its uneonstitutionality without showing that he will be injured in person, property, or rights by its enforcement? Every law found upon the statute books is presumptively constitutional until declared otherwise by the courts, and the allegation in the return that

Section 6 is unconstitutional, means that it has been so declared by a court of competent jurisdiction. This court, therefore, is confronted át once with the question, “Is that allegation true?” Finding that it is not— the power to declare

an Act'unconstitutional being lodged nowhere but in the courts — such an allegation in the return is no defense. We are, therefore, not called upon to pass upon the constitutionality of the Act because it not having been declared unconstitutional by the courts, ministerial officers must obey it, until in a proper proceeding its constitutionality is judicially passed upon. The question here presented is most important. It involves the right of a breach of the government, other than the judiciary, to declare

an Act of the legislature to be unconstitutional. When Mr. Chief Justice Marshall first laid down the doctrine that the judiciary was clothed with power to pass upon the constitutionality of legislative Acts, it met with violent opposition. Great publicists, including Mr. Thomas Jefferson, Spencer Roan, Niles of Niles Register, and others denied the right of the courts to pass upon the constitutionality of a regularly enacted statute. Andrew Jackson also thundered against it. For many years the doctrines expounded by Chief Justice Marshall seemed settled and secure, and no longer questionable.

Recently a well organized movement has been inaugurated in this country to take this power away from the courts, and at the recent election there were nearly sixty candidates for Congress who have pledged themselves to modify, if not to entirely abrogate, this great doctrine, without which governments limited by written constitutions will be destroyed.

Any tendency on the part of the courts to extend this doctrine and to recognize the right or power of ministerial officers to refuse to enforce a law found on the statute books, whenever, in their judgment, it is unconstitutional, will give impetus to the movement to abrogate or limit this power of the courts. The contention that the oath of a public official requiring him to obey the constitution, places upon him the duty or obligation to determine whether

an Act is constitutional before he will obey it, is, I think, without merit. The fallacy in it is that every Act of the legislature is presumably constitutional until judicially declared otherwise, and the oath of office “to obey the constitution,” means to obey the constitution — not as the officer decides — but as judicially determined. The doctrine that the oath of office of a public official requires him to decide for himself whether or not

an Act is constitutional before obeying it, will lend to strange results, and set at naught other binding provisions of the constitution. An illustration — one not conjured by an active imagination, but potent with immediate possibilities — is this: Under

Section 28 of

Article III of the constitution of Florida, the Governor may refuse to' sign a bill that has passed' the legislature and “return it with his objections to the house in which it originated, which house shall cause such objections to be entered upon its journal, and proceed to reconsider it; if after its reconsideration it shall pass both houses by a two-thirds vote of the members present, which vote shall be entered on the journal of each house, it shall become a law.” Bills are frequently returned to the legislature by the Governor without his approval, because in his opinion, they are unconstitutional.

That power is lodged in him, but it will be observed that it is a bill that has not yet become a law, and not a regularly enacted statute upon the constitutionality of which he expresses himself in his veto message. Having done this, and the legislature upon reconsideration having passed the bill in both houses by the vote of two-thirds of the members present, what then b9c0m.es of the doctrine of the obligation or duty of a pub ■ lie officer to refuse to obey a law which he believes to be unconstitutional, but which has not yet been so declared by the courts?

If it is sound, the passage of a bill over his veto, is perfunctory, because under that doctrine the Governor would have to refuse to enforce the law that was passed over his veto. In fact the Governor need not return to the legislature without his approval any bill that he believes to be unconstitutional. He may sign it, or let it become a law without his signature, and then refuse to enforce it under the doctrine that his oath to obey the constitution requires him not to enforce a law that he believes to be unconstitutional.

It is contended that an individual may refuse to obey a law that he believes to be unconstitutional, and take a chance on its fate in the courts. He does this, however, “at Ms peril,” the “peril” being to suffer the consequences, such as fine or imprisonment or both, if the courts should hold the Act to be constitutional. A ministerial officer refusing to enforce a law because in his opinion it is unconstitutional takes no such risk. He does nothing “at his peril,” because he subjects himself to no penalty if his opinion as to the. unconstitutionality of

an Act isi not sustained by the courts. It is the doctrine of nullification, pure and simple, and whatever may have been said of the soundness 'of that doctrine when sought to be applied by States to Acts of Congress, the most-ardent followers of Mr. Calhoun never extended it to give ministerial officers the right and power to nullify a legislative enactment. It is lodging in them the same power that exists in the Circuit and inferior courts, which may declare

an Act unconstitutional, subject to review by the Supreme Court. The right to declare

an act unconstitutional is purely a judicial power, and cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the constitution. It is true- that the Supreme Court of Nebraska in Van Horn v. State, 46 Neb. 62, 64 N. W. Rep. 365, and a few other courts have held that ministerial officers had the right, but there are so many better reasoned cases to the contrary, that we will not adopt the Nebraska doctrine.

A higher sense of duty was thus expressed by President Lincoln in his First Inaugural Address to Congress: “I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those Acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional. ’ ’ In Illinois, the first attempt by a ministerial officer to exercise judicial function of declaring a law unconstitutional met with prompt disapproval in the Supreme Court of that state.

The court said: ‘ ‘ The law under which this additional tax was imposed, had passed the legislature under all the forms of the constitution, and had received executive sanction, and became, by its own intrinsic force, the law to you, to every other public officer in the State, and to all the people. You assumed the responsibility of declaring the law unconstitutional, and at once determined to disregard it, to set up your own judgment as superior to the expressed will of the legislature, asserting, in fact, an entire independence thereof.

This is the first case in our judicial history, in which a ministerial officer has taken upon himself the responsibility of nullifying

an Act of the legislature for the better collection of the public revenue— of arresting its operation — of disobeying its behests, and placing his own judgment above legislative authority expressed in the form of law. “To the law every man owes homage, ‘the very least as needing its care, the greatest as not exempted from its power.’ To allow a ministerial officer to decide upon the validity of a law, would be subversive of the great objects and purposes of government, for if one such officer may assume infallibility, all other like officers may do the same, and thus an end be put to civil government, one of whose cardinal principles is, subjection to the law.” People ex rel.

Attorney General v. Salmon, 54 Ill. 39. Passing now to the next point: It is well settled that this court “will not pass upon the constitutionality of a law in any case unless it is necessary to do so. ’ ’ State ex rel. Morgan v. Louisville & N. R. Co., 51 Fla. 311, 40 South. Rep. 885. In State ex rel. Russo v. Parker, 57 Fla. 170, 49 South.

Rep. 124, this court reiterated the doctrine in this language: “Where a court can effectually and properly dispose of a case without passing upon the constitutionality of. a statute involved, it is, its duty to do so. ’ ’ The same doctrine was announced by this court in the two cases of State ex rel. Wolyn v Apalachicola N. R. Co., 81 Fla. 383, 87 South. Rep. 909, and State ex rel. Wolyn v. Apalachicola N. R. Co., 81 Fla. 394, 88 South. Rep. 310.

In the instant case the question involved is the power of a ministerial officer to refuse to perform a statutory duty because in his opinion a law is unconstitutional that has not been passed upon up the judiciary. This question can be decided without passing upon the constiutionality of the statute involved, and we should dispose of it upon that phase only. It is no answer, to say that the courts will not require a ministerial officer to perform an unconstitutional act. That aspect of the case is not before us.

We must first determine the power of the ministerial officer to refuse to perform a statutory duty because m his opinion the law is unconstitutional. When we decide that, we do not get to the question of the constitutionality of the Act, and it will not be decided.

There is another doctrine of this and other courts that makes the return to the writ insufficient to prevent the issuance of the peremptory writ, and that is, that it does not appear from the return, nor do we think that it can be made to appear, that the respondents have any material interest — personal or pecuniary — that would be injuriously affected or prejudiced by the Act in question, entitling them to question its constiutionality. This rule was followed by this court in the case of County Commissioners of Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 South.

Rep. 471, where it was said: “Not only is it true that a court will not, as a general rule, pass upon a constitutional question and decide a statute to be invalid, unless a decision upon that very point becomes statutory, but it is also a rule that a court will not listen to an objection made to the constitutionality of a statute by a party whose rights it does not affect, and who has, therefore, no interest in defeating it. Cooley s Const. Lim. (5th Ed.) 197. A party who seeks to have

an Act of the legislature declared unconstitutional, must, says the Supreme Court of Alabama, in Jones et al. v. Black et al., 48 Ala. 540, not only show that he is or will be injured by it, but he must also show how and in what respect he is or will be injured and prejudiced by it. Injury will not be presumed; it must be shown.

The complainants, sued as residents and electors of the countv, without showing any injury to themselves in person, property or rights, and it was held that the act would not be declared unconstitutional on' tlieir application to enjoin the holding of an election on the ground that the statute was unconstitutional. ’ ’ The case of Board of Public Instruction for Santa Rosa County v. Croom, 57 Fla. 347, 48 South. Rep. 641, is not in conflict with the doctrine herein announced. In that case Mr. Knott’s interest was directly affected. He was State Treasurer, and under a heavy bond.

If he paid money out of the Treasury under 'the provisions of an unconstitutional Act, he or his bondsman would have had to bear the loss. His right to raise the question of the constitutionality of the Act involved did not grow out of the obligation of his oath of office, nor out of his official position, but because he was liable to be injured pecuniarily. The case of Wade v. Atlantic Lumber Co., 51 Fla. 628, 41 South. Rep. 72; Disston v. Board of Trustees of Internal Improvement Fund of State of Florida, 75 Fla. 653, 79 South.

Rep. 295, are not authority for the doctrine that ministerial officers have the right to declare a statute unconstitutional, when their material rights are not affected by it. The Wade case was a suit in equity between private parties, and no State officer was a party. In the Disston case, it was sought to establish and enforce a trust based upon an alleged agreement between the Trustees of the Internal Improvement Fund, which agreement was entered into by the Trustees in accordance with the provisions of

Chapter 3996, Laws of Florida, Acts of 1889. The lands had passed from the Trustees to parties who were made defendants, and they as well as the Trustees alleged, as one of the grounds of their demurrers, that the Act under which the' agreement was entered into between the Trustees and those from whom the complainants derived title, was unconstitutional. There were private parties before the court, whose right to the lands was assailed, who also raised the question of the constitutionality of the Act, which the court could not refuse to decide without affecting their rights.

Although the question of the material interest of the Trustees of the Internal Improvement Fund did not arise, we can see that they being the Trustees of vast acres' of land granted to the State, might come within the rule that an officer who can show that he would be injured in his person, or property or other material right, may raise the question of the constitutionality of a statute.

In neither of these cases, however, was the question here involved presented or decided, and they are therefore no authority for the rule that a ministerial officer whose material rights would not be affected by the enforcement of a law, cannot declare it unconstitutional and refuse to enforce it. No useful purpose will be served by citing and quoting from the decisions of other States upon this point, but reference is made to the case of State ex rel. New Orleans Canal & Banking Co. v. State Auditor, 47 La. Ann. 1679, 18 South. Rep. 746, reported in 47 L. R. A. 512, and copiously annotated.

We will, however, give one citation from that case. “In .mandamus proceedings against a public officer, involving the performance of official duty; nothing can be inquired into but. the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. After careful investgation of the authorities, we feel fully confirmed in the correctness of the conclusions we arrived at in State ex rel. Nicholls v.

Shakespeare, and other cases, to the effect that executive officers of the State government have no authority to decline the performance of purely ministerial duties which are imposed upon, them by a law, on the ground that it contravenes the constitution.. Laws are presumed to be, and must be treated and acted upon by subordinate,.executive functionaries as constitutional and legal, until lueir unconstitutionality or illegality has been judicially established ; for in a well-regulated government obedience to its laws by executive officers is absolutely essential and of paramount importance.

"Were it not so, the most inextricable confusion would inevitably result, and ‘produce such collision in the administration of public affairs as to materially impede the proper and necessary operations of government.’ ‘It was surely never intended that an executive functionary should nullify a law by neglecting or refusing to execute it.’ The result of this conclusion is that the respondents are without right to urge the unconstitutionality of the concurrent resolution which is involved. ’ ’ Cases can be found on both sides of the question now before us. They are fully and with much care compiled in 12 Corp.

Jur. 765. The great weight of the authorities, both in number and persuasiveness, supply the conclusion reached by us. Sections 6 and 7 of

Chapter 8584 not having been judicially declared unconstitutional, the allegation in the return as to its uneonstitutionality is unwarranted, unauthorized and affords no defense to the .allegations of the writ, and the peremptory writ will issue. Taylor and Ellis, J. J., concur. "Whitfield and West, J. J., dissent.