P. C. LISSENDEN CO., Inc., a Florida corporation, and Standard Accident Insurance Company, a Michigan corporation, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF PALM BEACH COUNTY, Florida, for the use and benefit of GRAYBAR ELECTRIC COMPANY, a New York corporation, Appellee, 116 So. 2d 632

DREW, Justice. This appeal comes to this Court from the trial court under the provision of the Constitution providing for a direct appeal from any judgment of a trial court directly passing upon the validity of a state statute. The Board of County Commissioners of Palm Beach County entered into a contract with P. C. Lissenden Co., Inc., a corporation, as general contractor, to remodel the Palm Beach County Courthouse.

The contractor, in accordance with a requirement of the statute, executed the usual penal bond containing the additional provision for the payment of all costs of labor, material and supplies used directly or indirectly in the prosecution of the work provided for in the contract. J. C. Hime Electric Company was the sub-contractor for the electrical work and Graybar Electric Company was the materialman furnishing electrical supplies and equipment.

Hime Electric failed to pay for a considerable quantity of electrical equipment and supplies which, it is conceded, actually were incorporated into the project, whereupon Graybar instituted suit against the general contractor, the surety and Hime Electric, basing its cause of action upon the bond so executed. Judgment therefor was directed and entered in its favor. The validity of the statute was raised for the first time in two affirmative defenses presented by the defendants. These defenses alleged that

Chapter 2S5.0S, Florida Statutes, F.S.A., violates

Section 12 of the Declaration of Rights of the Florida Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States because said statute deprived the defendants of their property without due process of law, and that said

Chapter violates

Section 17 of the Declaration of Rights of the Florida Constitution and

Section 10 of

Article I of the United States Constitution “as impairing the obligation of contracts.” The filing of this defense is the first mention of the statute in these proceedings. The only other reference is found in the order of the trial judge on a motion for

summary decree where, in paragraph 5, he held “that Statute 2SS.0S under which Graybar Electric Company seeks to recover upon the performance bond is constitutional.” The cause of action in this case does not arise out of the statute but out of the performance bond. The amended complaint is upon the bond and the contract made a part thereof and not upon the statute. Whether the statute is constitutional or not under the facts in this case is immaterial.

Such question, although raised and expressly passed upon by the trial court, is neither dispositive of this litigation nor is it material in any way to a determination of the cause of action alleged in the complaint. The performance bond was required not only by the statute but by the express terms of the contract entered into between the County and Lissenden. By its terms, the bond was for the benefit of Graybar and others furnishing labor and materials.

It is obvious, of course, from reading the statute that it imposes a duty upon those public bodies awarding contracts of this kind, before allowing the work to proceed,, to secure not only the penal bond but a bond with the additional provisions for the: payment of labor and materials. The reasons for such requirements have been amply delineated in previous decisions of this Court, and we have said that if the public-body fails to make such requirement of the-contractor and a materialman is injured thereby, he has a cause of action against the members of the public body for damages arising therefrom.

The statute further provides that such public body shall, upon: affidavit being furnished, deliver to a person for whose benefit the bond is executed a. copy thereof and of the contract and that such person may institute suit in the name of the state or other public body to recover for any unpaid materials or labor actually furnished and incorporated in the work.This statute is not essential to a cause of action in a materialman where the bond has been actually posted nor would the lack of such a statute be an impediment to a public body requiring a bond with the provisions ■.therein provided for.

While the statute authorizes the institution of a suit in the name of the state or .any other public body for the benefit of the injured party, that provision is not essential to such cause of action. Under our rules an action may always be prosecuted in the name of the real party in interest.

So it is quite clear from this record that, while the validity of this statute was raised by the appellant and actually passed upon by the trial court, it was not •only not determinative of the issues or essential to the disposition thereof, but such question was wholly immaterial to the determination of the merits of the action. Therefore that portion of the judgment appealed which purports to pass upon the ■validity of the cited statute is obiter dictum and is hereby held for naught.

The foregoing conclusion, that the action of the trial court in passing upon the validity of the statute was unnecessary to a determination of the cause, brings us ■squarely to the issue of whether, having thus eliminated that part of the trial court’s judgment upon which the direct appeal to this Court was predicated, we should pro-need to determine the remaining issues involved in the appeal or transfer the cause to the proper district court of appeal. In a previous case, Evans v.

Carroll, the latter procedure was followed in a somewhat analogous situation upon the theory that the questions raised with reference to the validity of the statute were “merely color-able, unrelated to the particular facts involved,” and the decree appealed, which did not contain an express ruling on the contested statute, could not therefore be regarded as one “directly passing upon the validity of a * * * statute” so as to permit consideration and disposition of the merits of the appeal by this Court. We think, however, that the principles applied in that situation do not control the instant case.

Since the decision in the Carroll case, and since argument before the Court in this cause, numerous conferences have contributed to a thorough and painstaking review, by the individual members of the Court, of the constitutional questions involved in this and related causes. These deliberations, which necessarily chart the course for future appeals in this area of jurisdiction, afid the intervening summer recess, have resulted in a longer delay than would ordinarily be justified in the disposition of these appeals.

The Court has reached the conclusion that the language of the Constitution confers upon a litigant in the trial courts of this state the right to appeal to the Supreme Court an adverse final judgment or decree such as that here involved which on its face passes upon the validity of a state statute, and that when that right is exercised by the litigant then this Court, under the cited provision of the Constitution, has jurisdiction of and should determine the appeal even though in its consideration of the case it is decided that the action of the trial court, in passing upon or expressing an opinion upon the jurisdictional issue of statutory validity, was unnecessary to the disposition of the cause.

The reasoning and practical analysis supporting this conclusion have been carefully examined in cases arising under similar constitutional requirements. The widely endorsed principle that the constitutional or statutory issue must be an essential element in the litigation, in order to support appellate review on this ground, is thus a prima facie test, the ultimate requirement being that there should exist a genuine issue, fairly and in good faith presented, as to the validity of the statute in controversy and its applicability in the case under consideration.

Upon appeal from a judgment rendered in this situation, an exercise of the constitutional jurisdiction of this Court is necessarily involved whether or not the view of the trial court on the point is sustained. Universally recognized principles of appellate review then require that a court, exercising jurisdiction over a cause to this extent, should proceed to dispose of all questions properly presented in the appeal.

Moreover, the efficient and speedy administration of justice is thereby promoted, and any part of the opinion in the Carroll case, supra, which may be construed to be in conflict with these conclusions is receded from. We have considered in detail the other points raised in the appeal, relating primarily to the

interpretation of the evidence in the cause and are of the view that the judgment rendered is without error. Affirmed. TERRELL, ROBERTS, THORNAL and O’CONNELL, JJ., concur. THOMAS, C. J., and HOBSON, J.r dissent. . “Appeals from trial courts may be taken directly to tbe supreme court, as a matter of right, only * * * from final judgments or decrees directly passing upon the validity of a state statute * * or construing a controlling provision of the Florida or federal constitution. * * ” Section 4(2),

Article V, Florida Constitution, F.S.A. .

Section 255.05 F.S.1955, F.S.A. .The pertinent portion of the complaint in the cause reads as follows: “2. * * * the Board of County Commissioners of Palm Beach County, Florida, and the Defendant, P. C. Lissenden Co., Inc., entered into a written contract whereby the said Defendant agreed to furnish labor and materials as general contractor and perform work necessary for the remodeling of the Palm Beach County Court House. * * * ” “3. * * * thg Defendant, P. C.

Lis-senden Co., Inc., as principal, and the Defendant, Standard Accident Insurance Company, as surety, bound themselves jointly and severally in the sum of $599,-000.00 conditioned that the principal should promptly make payment to all persons supplying labor and materials in the prosecution of the work provided for in the contract, then the said obligation would be void, otherwise to remain in full force and effect. * * * ***** “5. X R.

Hime Electric Company, a Florida corporation, was subcontractor on the said Court House job and . * Plaintiff, Graybar Electric Company, Inc., supplied materials of an electrical nature required by the contract to, and at the request of, the said X R. Hime Electric Company in the sum of $24,927.89. The said materials were used in the prosecution of the work on the said Court House under the said contract * * *. “6. * * * there is due and owing from the said Defendant, X R.

Hime Electric Company, to Plaintiff, Graybar Electric Company, Inc., the sum of $17,-288.30 for materials furnished as aforesaid and the said Defendant, J. R. Hime Electric Company, has failed and refused to make payment to Plaintiff, Graybar Electric Company, Inc., for the said materials, although demand has been made. “Wherefore, Plaintiff demands judgment againsl Defendants in the sum of $17,-288.30.” .

The bond provided: “ * * * the conditions of this obligation are such, that * * * if such. ‘Contractor or Contractors’ shall promptly make payment to all persons supplying him, or them, or its, labor, material,, and supplies, used directly or indirectly by said ‘Contractor’, ‘Contractors’, ‘Subcontractor’ or ‘Sub-contractors’, in the-prosecution of the work provided for-in said Contract, then this obligation tO' be void; otherwise, to be and remain’ in full force, effect and virtue in law.” . Fulghum v. State, 1926, 92 Fla. 662, 109 So. 644; Warren for Use and Benefit of Hughes Supply Co. v. Glens Falls Indem..

Co., Fla.1953, 66 So.2d 54. . Warren for Use and Benefit of Hughes: Supply Co. v. Glens Falls Indem. Co., supra, note 5. .

The exact language is: « * * * and any person, making application therefor, and furnishing affidavit to the treasurer of the state, or any city,, county, political subdivision, or other public authority, having charge of said work, that labor, material or supplies for the prosecution of such work has been supplied by him, and payment for which has. not been made, shall be furnished with certified copy of said contract and bond, upon which, said person, supplying such labor, material or supplies shall have a right of action, and may bring suit in the name of the state, or the city, county, or political subdivision, prosecuting said work, for Ms use and benefit, against said contractor, and sureties. * * * ” F.S. § 255.05, F.S.A. .

Florida Rules of Oivil Procedure, Rule 1.17, 80 F.S.A. . Fla., 104 So.2d 375. . Ibid., 104 So.2d at page 378. . Note 1, supra. . This case was argued orally on the merits and on sua sponte order was re-argued on the question of whether this Court had jurisdiction in the cause in the event it should determine that the statute upon which the court passed directly was not germane to the disposition of the case. . See North American Company v. Green, Fla.,- So.2d-, filed this date. .

Note 1, supra. .“It has been suggested that our exclusive jurisdiction will be defeated whenever the case assumes such a condition that it may be disposed of on some other point than that involving the consideration of the Constitution of the United States or of this state. This point is very well answered by the Supreme Court of the United States in Holder v. Aultman, 169 U.S. 81, 18 S.Ct. 269, 42 L.

Ed. 669, in which the court determined that it had jurisdiction under the provision of the judiciary act because the case involved the construction of the Constitution of the United States, but found it unnecessary to pass upon the constitutional question because it was of the opinion that the contract involved was not within the statute set up by the defendant. So in this case we may hold that it involves the construction of the Constitution and assume jurisdiction accordingly without hesitation.

We may then decide, should it become necessary in the exercise of that jurisdiction, that the statute about fohich the contest has thus far gathered has no application to the question presented. * * * * * “We think that the question whether or not the plaintiff has been deprived by the judgment of the circuit court of a constitutional right is not a fictitious one; that it appears from this record that it was fairly and in good faith presented to the court and was decided against her; and that it is now properly before us for consideration, in the exercise of that branch of our jurisdiction relating to cases involving the construction of the Constitution of the United States and of this state.” Dorrance v.

Dorrance, 242 Mo. 625, 646, 148 S.W. 94, 98. . “It must appear, however, with reasonable certainty that a correct

interpretation * * * of the challenged statute is vital to a just determination of the litigation.” 2 Am.Jur. 852, App. & Err. Sec. 13. . Pennington v. Farmers’ & Merchants’ Bank, 144 Tenn. 188, 231 S.W. 545, 17 A.L.R. 1213; City of Milan v. Allen, Mo., 175 S.W. 933; Stanley v. St. Louis, I. M. & S. R. Co., 254 Mo. 237, 162 S.W. 240. Cf. Bolin v. Sovereign Camp., W. O. W., 339 Mo. 618, 98 S.W.2d 681; 21 C.J.S. Courts § 404, p. 656.