BARR v. WATTS et al., 70 So. 2d 347

ROBERTS, Chief Justice. This .is an original proceeding in mandamus by which the Relator, yirginia Searcy Barr, seeks to compel the Respondents, constituting the State Board of Law Examiners, to allow her to take the examination for admission to the general practice of lawjn this state, as required by Section.454.031,(3), Florida Statutes, F.S.A. The Relator bases her right to be allowed to take the examination on the provisions of

Chapter 26993, Laws of Florida, Acts of 1951, which provides that persons of specified qualifications shall be entitled to take the bar examination. The qualifications si> specified are not the same as those specified by Rules 1(

b) and 1(

c) of the Rules Governing Florida Bar examinations, 31 F.S.A., heretofore adopted by this Court. In her petition here for the alternative writ, the relator alleged that she possesses all of the qualifications prescribed by

Chapter 26993, supra; that she made application to the respondents for permission to take the bar examination given by the respondents in October 1952,. in full compliance with all the rules and regulations respecting such applications; and that her application was rejected by the respondents. The alternative writ issued as prayed, and a return thereto has been filed by the respondents. In their return, the respondents take the position that the Legislature, by

Chapter 26655, Laws of Florida, Acts of 1951, expressly recognized this court’s exclusive power to regulate admissions to the Bar of this state and “withdrew from the field.” It is also alleged that such power, if any, as the Legislature may have to legislate in this field cannot be exercised to lower the standards prescribed by this court; and that, in any event,

Chapter 26993 is “invalid as special and discriminatory legislation.” For reasons which will be hereinafter stated, we do not think the respondents have any standing to attack the constitutionality of

Chapter 26993 on the ground that it is special legislation. But we think that, in the circumstances here, the public interest requires that this court answer the charge that the Legislature “expressly recognized” this court’s “exclusive power to regulate admissions to the bar * * * when it withdrew from the field by the enactment of

Chapter 26655,” supra. There is' inherent in this statement the accusation that the Legislature, in so prescribing qualifications for applicants for the bar examination, has attempted to usurp the functions and invade the province of this court. The question of whether the Legislature has withdrawn from the field of regulating admissions to the Bar answers itself. The Act by which it is claimed that the Legislature “withdrew” from this field,

Chapter 26655, supra, was enacted at the same session of the- Legislature as was

Chapter 26993, the Act :upon which the Relator relies—and

Chapter 26993 was enacted after the passage of

Chapter 26655. Clearly, then, it cannot be said that the Legislature intended to withdraw from the field; Nor does the language of

Chapter 26655 require such a construction.

Chapter 26655 provides-, in

Section 1, only that “The Supreme Court .* * * shall - have the power to prescribe from time to -time the requirements, qualifications and standards to be met and procedures to be followed by all persons for admission to practice law in. any of the Courts of the State of Florida or its political subdivisions.” (The emphasis is supplied.) Again, in

Section 2, the Act provides that “The Supreme Court of the- State of Florida shall have the power to prescribe and establish additional duties, powers and procedures for the State Board of Law Examiners * * *; provided, that in making up the questions for examination the State Board of Law Examiners shall meet with and consult with a-committee consisting of the deans of all. of the accredited law schools in the State of Florida.” And in

Section 3 of the Act, the Legislature, in effect, repealed what has become known as the “diploma privilege” and provided for the preservation of this privilege to persons “enrolled on or before the 25th day of July, 1951, as a student in any law school chartered by and conducted within this State or approved by the Supreme Court”. . Thus, the Legislature, in the very Act which , it is claimed amounted .to a withdrawal from the field, did in fact legislate in this field.

It cannot, then, be seriously contended that the Legislature has withdrawn from the field of regulating admissions to.the -Bar- of this state—and this is without regard to the question of whether one particular, legislative body could effectively abrogate one-of its legislative powers for-all time and so.as'to bind all succeeding sessions of. that body. The question then becomes: Does the Legislature have the power to regulate admission to the practice of law in this state,' or is this power exclusively the province of this court?

If the Legislature has no power or authority in this field, then the Respondents themselves, as members of a Board 'which is the creature of the Legislature, find themselves in a somewhat ■anomalous position, with no official existence. But the logic of .the situation requires no such reductio ad absurdum. There can be no doubt that this court has inherent power to regulate the practice in the courts of this state, including the right to prescribe the qualifications for admission to the Bar of this state. And we have repeatedly so held. See Petition of Florida State Bar Association, 134 Fla. 851, 186 So. 280.

But .the concurrent jurisdiction of the Legislature and this court in the field of admissions to the Bar was expressly recognized in that case, as it was again in a later Petition of Florida State Bar Association for Promulgation of New Florida Rules of Civil Procedure, 145 Fla. 223, 199 So. 57, 58. In the case last cited, Mr. Justice Terrell, in speaking of the constitutional powers of the Legislature under Sections 20 and 21 of

Article III of the Constitution, F.S.A., said: “I do not construe these provisions to be exclusive but supplemental to the power of the courts to prescribe rules regulating contempts, admission to the bar, and for the conduct of. judicial business. Certainly they authorize the Legislature to enter these fields and when so entered, legislative acts will be respected by this court.” (The emphasis is supplied.) It cannot, then, be gainsaid that the Legislature has the power to- prescribe qualifications for admission to the practice of law in this state, concurrent with that of the Supreme Court.

And if the Legislature has such power, then the Respondents have no alternative except to administer the law in accordance with the legislative mandate. This is so because of the well established rule that a ministerial officer, charged with the duty of administering a legislative enactment, cannot raise the question of its unconstitutionality without showing that he will be injured in his person, property, or rights by its enforcement, State ex rel. Atlantic Coast Line Railroad Co. v.

State Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A.L.R. 362, or that his administration of the Act in question will require the expenditure of public funds, Steele v. Freel, 157 Fla. 223, 25 So.2d 501. The respondents do not here contend that they can bring themselves within the exceptions .to above rule — they base their right to attack the constitutionality of the Act solely on the theory that it would be a violation of their oath of office to undertake the administration of

an Act which, in their opinion, is unconstitutional. This court dealt squarely with an identical contention in State ex rel. Atlantic Coast Line Railroad Co. v. State Board of Equalizers, supra [84 Fla. 592, 94 So. 683], and its reasons for declining to adopt that theory or doctrine are set forth fully therein. Among others, it was said: “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 to 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 executivé 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. 365, and a few other courts have held that ministerial officers had that right, but there are so many better-reasoned cases to the contrary that we will not adopt the Nebraska doctrine.” It is true, as contended by the respondents, that there is dictum in the cases of City of Pensacola v.

King, Fla., 47 So.2d 317, and State ex rel. Harrell v. Cone, 130 Fla. 158, 177 So. 854, which might be construed as an approval of the respondents’ theory; but a careful reading of those cases will reveal that, in each such case, there was involved a disbursement of the public funds in the administration of the Act in question — so that these cases could have turned on this one point alone. Nor did this court in either of these cases recede from the rule adopted in the Board of Equalizers case, which we quoted above. The latest expression of this court on this question appears to be in Pickerill v.

Schott, Fla., 55 So.2d 716, 719, in which this court said: “They [the appellants] asked for a hearing* before the Beverage Director to determine the constitutionality of the Act. There was no duty placed upon the Beverage Director to grant a hearing to the appellants on this question. Not only is it true that the Beverage Director was under no duty but he had no right to grant any such hearing. It was the duty of the Beverage Director to observe the law as he found it until in a proper proceeding its constitutionality is judicially passed upon. See State ex rel. Atlantic Coast Line R. Co. v.

State Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A.L.R. 362; City of Pensacola v. King, Fla., 47 So.2d 317, 318; Steele v. Freel, 157 Fla. 223, 25 So.2d 501.” Under the circumstances, we do not feel bound by the dictum in the cited cases relied on by respondents, and re-affirm the rule of State ex rel. Atlantic Coast Line Railroad Co. v. State Board of Equalizers, supra, that is, that the “right to declare

an act unconstitutional * * * 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.” And, indeed, the chaos and confusion which would result from the application of such a rule would be immediately apparent. We now have in this state to carry on the state’s business almost 100 state agencies, boards and commissions, most of whose members hold office by virtue of executive appointment.

The people of this state have the right to expect that each and every such state agency will promptly carry out and put into effect the will of the people as expressed in the legislative acts of their duly elected representatives. The state’s business cannot come to a stand-still while the validity of any particular statute is contested by the very board or agency charged with the responsibility of administering it and to whom the people must look for such administration.

As indicated above, there is, of course, an exception to this rule — and that is, when the public may be affected in a very important particular, its pocket-book. In such case, the necessity of protecting the public funds is of paramount importance, and the rule denying to ministerial officers the right to question the validity of the Act must give way to a matter of more urgent and vital public interest.

But in the absence of such controlling public necessity, we think that the public interest will be best served by channeling all such attacks on the validity of statutes through the duly-elected public officer whose duty it is to protect the public interest in this respect — the Attorney General of this state. State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374, and cases therein cited.

For the reasons stated, we hold that the respondents have no standing to attack the Act in question either on the ground that it is special legislation and discriminatory, or on the ground that it lowers the standards prescribed by this court.

In this last connection, it should be noted that even after the relator has been placed on the eligible list to take the examination or examinations for admission to the Bar, she still has another hurdle to cross — she must still make the same passing grade as is required of other applicants for admission to practice in this state; and this court knows that such examination is fully comprehensive.

The peremptory writ will issue, requiring the respondents to place the name of the Relator on the list of those eligible to take the bar examination, with the same rights and privileges of those applicants who comply with the rules of this court in this respect. It is so ordered. HOBSON and MATHEWS, JJ., and HOLT, Associate.Justice, concur. TERRELL, THOMAS and DREW, JJ., dissent.