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

This is an original proceeding in mandamus brought by the relator, Herman Kurz, a teacher in the Florida State College for Women, seeking a peremptory writ from this Court to coerce the respondent, J.M. Lee, as Comptroller of the State of Florida to draw his warrant on the State Treasurer directing him to pay to relator out of the General Revenue Fund in the State Treasury, the sum of $225.00, in conformity with the 1935 General Appropriation Act (Chapter 16772, Acts 1935). The object of the proceedings is to have paid to relator an approved requisition for his already earned salary as fixed by the State Board of Control and provided by law to be disbursed to relator on the Board of Controls' approval as set forth in Sections 778-779 C.G.L., 616-617 R.G.S., as amended by Chapter 11857, Acts 1927.

The sole defense of the Comptroller to the relief sought is that while admittedly relator has been lawfully employed by the State Board of Control in the manner and pursuant to authority provided by statute, and has duly and actually rendered the professional service for which his salary, as represented by his requisition, is due to be paid to him out of the General Revenue Fund of the State as provided by law, that nevertheless the Comptroller is precluded from drawing any state warrant to pay relator the salary so earned by him by reason of the fact that the 1935 Session of the Legislature, after having enacted its general appropriation bill (Chapter 16772, supra), did, by a subsequent Act undertaking to make certain appropriations for public free school purposes in the several counties, expressly so limit, modify and restrict its general appropriation statute as to impose upon the respondent Comptroller the duty of withholding relator's salary payment until such time as he should be able to determine to what extent, if any, relator's compensation should be diminished in the proportion that the common school appropriation might have to be diminished during the current fiscal year, on account of insufficient funds in the State Treasury to pay both classes of appropriations in full.

As authority for the Comptroller's refusal to comply with the commands of the alternative writ directed to him, he cites and refers to the provision of Chapter 17247, Acts 1935, Laws of Florida, particularly Section 5 thereof, and avers in his return as follows:

"(5) For return to Paragraph 5 of the alternative writ of mandamus, this respondent admits that he would have ample funds in the General Revenue Fund of the State of Florida appropriated by the Legislature by Chapter 16772, Acts of 1935, with which to pay the salary of the relator as set out in the alternative writ, but for the fact that the Legislature at its session of 1935 enacted Chapter 17247 and by Section 5 of said Act placed the appropriation carried in said Act on a parity and of equal dignity with all other appropriations made by the Legislature of the State of Florida of 1935, or prior years, except certain appropriations listed in said Section 5 as exempt from such parity, and furthermore, that the respondent is uncertain as to the amount of the appropriation under said Chapter 17247. That such appropriation will impair the General Revenue Fund of the State to such an extent that he would not have ample funds with which to pay relator's requisition.

"(6) For further return this Respondent respectfully shows unto the Court that he has not complied with the command of the alternative writ of mandamus and cannot do so for the following reasons:

"(a) Respondent is in doubt as to his legal duty in this respect because of the uncertainty as to the proper interpretation and construction to be placed upon Section 5 of Chapter 17247, Laws of Florida, Acts of 1935, when read in connection with Chapter 16772, Acts of 1935.

"(b) Until Chapter 16772 and Chapter 17247, Acts of 1935, are construed by the Court with particular relation to the effect of Section 5 of Chapter 17247 on Chapter 16772, this respondent does not know and cannot know what his legal duties are in respect to the matter commanded by the alternative writ of mandamus.

"(c) Until the Court construes Section 5 of Chapter 17247, with particular reference to its effect upon Chapter 16772, this Respondent does not know and cannot know what his legal duties are in respect to the administration of the funds appropriated by Chapter 16772, Acts of 1935, for salaries of officers and employees of the State and for current operating expenses of the Departments and branches of the State government as to all officers and employees of the State and all departments and branches of the State government not excepted from the application of Section 5 of Chapter 17247.

"(d) That without the construction of the Court as to just which officers and employees of the State and what departments and branches of the State government, and what funds, are affected by the parity and equal dignity provision of Section 5 of Chapter 17247, Acts of 1935, this Respondent does not know and cannot know what his legal duties are with respect to administering Chapter 16772 and/or Chapter 17247, except as to the salaries of officers and employees of the State and as to current operating expenses of the departments and branches of the State government specifically excepted from the application of the parity and equal dignity provision as contained in Section 5 of Chapter 17247, Acts of 1935.

"(e) The duty of this respondent in respect to administering the funds appropriated by Chapter 16772 for salaries of officers and employees of the State and for current operating expenses of the departments and branches of the State government, which are not excepted from the application of the parity and equal dignity provision of Section 5 of Chapter 17247, is uncertain and as to which this respondent is in great doubt by reason of the fact that among those not excepted from the parity and equal dignity provision of Section 5 of Chapter 17247 are both constitutional and statutory State officers and State employees, whose salaries are fixed by Chapter 15859, Laws of Florida, Acts of 1935.

"(f) This respondent is further in doubt as to his duty in complying with the command of the alternative writ of mandamus because of the apparent conflict between the parity and equal dignity provision of Section 5 of Chapter 17247, Acts of 1935, annd the Advisory Opinion of this Court to the Governor of April 14, 1934, 114 Fla. 520, 154 So.2d 154, in which the Court, construing the provisions of Chapter 15859 which fixes the salaries of the State officers and State employees, held as follows:

"``The restrictions of the Constitution found in Section 4 of Article IX to the effect that no money shall be drawn from the Treasury except in pursuance of appropriations made by law must be construed in connection with the equally cogent provision of Section 3 of Article XVI to the effect that every officer shall be entitled to receive his salary monthly upon his own requisition.'"

"The quoted portion of the Court's opinion seems to this respondent to mean that State officers and State employees whose salaries are fixed by Chapter 15859 are entitled to their salaries monthly, irrespective of any other provision of law making appopriation therefor, while on the other hand the parity and equal dignity provision of Section 5 of Chapter 17247 makes the payment of the salaries of all State officers and State employees not excepted from the provisions of Section 5 of Chapter 17247, contingent upon provisions of law not contained in either Chapter 15859, Acts of 1933, or Chapter 16772, Acts of 1935.

"(g) This respondent is in doubt as to his legal duty in respect to obeying the command of the alternative writ of mandamus, because of the fact that he has been advised by the attorney for the beneficiaries under Chapter 17247 and the parity and equal dignity provision of Section 5 of said Chapter 17247, that the parity clause of Chapter 17247 puts the appropriation made in said Act on a parity with all appropriations made by the Legislatures of Florida with the exception of the appropriations expressly excepted in said Bill, and that the clause, ``All appropriations of the Legislature of 1935 and prior years,' includes the six cent gasoline tax funds. That the attorney for said beneficiaries under Chapter 17247 has put this respondent on notice that his clients will hold respondent responsible for any losses which may come to them by reason of the misinterpretation of this clause of said Chapter 17247. Such advice and warning is illustrated by letter dated August 17, 1935, addressed to the Honorable J.M. Lee, Comptroller, Tallahassee, Florida, and signed by H.C. Tillman, as follows:

"``SUTTON, TILLMAN REEVES "``ATTORNEYS AT LAW "``1201-1211 Wallace S. Building TAMPA, FLORIDA "``August I7th, 1935.

"``Hon. J.M. Lee, Comptroller, "``Tallahassee, Florida.

"``Dear Colonel Lee:

"``We have been retained by the Florida Education Association, which is composed of the teachers of the State of Florida for the purpose of seeing that they get the full benefit of the ``parity' clause contained in Senate Bill No. 370, passed by the recent session of the Legislature.

"``There is no question in my mind that this Clause in the Bill puts that appropriation on a parity with all appropriations made by the Legislature of Florida, with the exception of the appropriations expressly excepted in the bill. Representing the teachers and, despite the fact that I understand the Attorney General holds a different view, I want to put you on notice that my clients will hold you responsible for any losses which may come to them by reason of a misinterpretation of this Clause. Just as soon as you have determined upon a definite ruling as to how you will apply this "parity" clause I will appreciate a copy of your opinion. The Legislature would not have used the term "all appropriations of the Legislature of 1935 and prior years" unless it intended that this appropriation should be on a parity with what the Legislature designated.

"``However, the responsibility is yours to make the decision, and I trust that you will bear in mind the possible loss to the teachers if you make a mistake.

"``Respectfully yours,

"``hct-d "``(Signed) H.C. TILLMAN.'"

"On the other hand, this respondent has been advised by attorneys representing State officers and State employees not excepted from the parity and equal dignity provision of Section 5 of Chapter 17247, that said parity and equal dignity provision of said Act is unconstitutional and void, and has no effect upon those State officers and State employees not excepted from the parity and equal dignity provision of Section 5 of Chapter 17247, whose salaries are fixed by Chapter 15859, Acts of 1933, and for which appropriations made in Chapter 16772, Acts of 1935.

"(7) By reason of the allegations of paragraph 6 and sub-paragraphs (a) to (g) thereof of this return, this respondent cannot with safety either to the State or himself comply with the command of the alternative writ of mandamus herein until his duties in respect to the matters herein shown are clearly defined by the Court, which duties as so defined by the Court will then be by this respondent cheerfully and in good conscience performed to the best of his ability and in compliance with the instructions given by the Court in construing the provisions of law herein referred to."

The refusal of the Comptroller to meet relator's demand because of the facts averred in his return would be untenable for the following reasons if there were no others:

(a) The Comptroller's return assumes, without alleging it to be so, that the Legislature has in fact failed to provide adequate means for raising sufficient revenues to meet all of the appropriations it made, or left outstanding, at the close of its 1935 regular session. The return further assumes that because of such hypothetical deficiency, it is now necessary for the Comptroller to decline to pay relator in full the salary he has lawfully earned under a contract of employment authorized by State statute and performed according to state law, notwithstanding the fact that the contingency of insufficient funds in the general revenue funds in the State Treasury to meet and discharge both relator's claim and the County School Fund appropriation made by Chapter 17247, supra, has not yet definitely occurred. Indeed, for aught that appears to the contrary by any allegation in respondent's return, such contingent deficiency may never occur in fact if available resources are conservatively marshalled. So it is obvious, therefore, that should there be at all times enough money in the State Treasury to satisfy all demands against the General Revenue Fund, suggested questions of inferiority, parity, or superiority in dignity of appropriations from the State General Revenue Fundinter sese, that is as between appropriations for salaries and current expenses of the State, and appropriations to the County School Fund under amended Section 9 of Article XII, become wholly academic in character.

(b) On the other hand, if it be assumed as true that the Legislature of 1935 did, in fact, intend to defeat performance of the mandatory constitutional duty that was cast upon it by Section 2 of Article IX of the State Constitution "to provide for raising revenues sufficient to defray the current expenses of the State for each fiscal year," thereby apparently purposing by Chapter 17247, supra, to create a deficiency in the general revenue fund of the state through an attempted withdrawal from it of the amount of the special school appropriation provided for by said Chapter 17247, supra, in lieu of raising by adequate taxation additional revenues sufficient to pay to the county school funds of the several counties the amounts intended to be apportioned and distributed to them in accordance with the authority of Amended Section 9 of Article XII to appropriate state funds as an aid to a purely county school purpose, it is evident that in such a situation, the state purpose appropriations made by Chapter 16772, supra, "for the salaries of public officers and other current expenses of the State" as contemplated by Section 30 of Article III of the Constitution, must, in accordance with the plain intent of the constitutional scheme of separation of the sources of state funds and county school finances, be given precedence in payment out of available funds in the state treasury to the credit of the general revenue fund, where the moneys on hand ate definitely known to be inadequate to meet the authorized appropriations duly made "for the salaries of public officers and other current expenses of the state" should the county school fund appropriation under Chapter 17247, supra, be at the same time paid out of the general revenue funds on hand in the State Treasury.

Chapter 17247, Acts of 1935, which originated in the Legislature as Senate Bill No. 370, is in express terms, as disclosed by its title, an Act making an appropriation of state funds to increase the county school fund and regulating the expenditures of such fund in order to effectuate the purpose of the Legislature to assist each county in the State in providing for a minimum of eight months free schools in accordance with the requirements of the state law on that subject. As appears by Section 2 of the Act, the appropriation is expressly stated to be an appropriation "from the General Revenue Fund" in a sum equivalent to $800.00 for each instruction unit existing in the State of Florida during the immediately preceding scholastic year, less certain credits specifically provided for.

Section 5 of the Act providing that "this" appropriation (meaning the appropriation made by Senate Bill No. 370) shall be on a parity of equal dignity with all other appropriations made by the Legislature of the State of Florida for 1935, or prior years, with certain exceptions of amounts appropriated by the general appropriation Act, necessarily has reference to such other appropriations as are required by their terms to be drawn out of the general revenue fund of the state. If this is not so, then the effect of the Act is broader than the subject expressed in its title and the provision must go down in its entirety as a violation of Section 16 of Article III of the Constitution, if for no other reason, since no notice whatsoever of an attempted revolutionary change in the whole fiscal policy of the state, such as would follow such a construction, is in any respect indicated by the title of said Senate Bill No. 370.

Section 4 of Article IX of the Constitution provides that "no money" shall be drawn from the Treasury except in pursuance of appropriations made by law." It is therefore necessary that for every appropriation there shall be statutory authority, or authority contained in the Constitution itself, for the withdrawal of the funds raised for state public purposes. Advisory Opinion to Governor, 114 Fla. 520, 154 Sou. Rep. 154.

An appropriation of money is the setting it apart officially, out of the public revenue for a special use or purpose, in such manner that the executive officers of the government will have authority to withdraw and use that money, and no more, for that object, and for no other. State, ex rel. Norfolk Beet-Sugar Co., v. Moore, 50 Neb. 88, 69 N.W. Rep. 373, 61 Am. St. Rep. 538; State v. Allen, 83 Fla. 214, 91 Sou. Rep. 104. The object of a constitutional provision requiring an appropriation made by law as the authority to withdraw money from the State Treasury is to prevent the expenditure of the public funds already in the Treasury, or potentially therein, from the sources provided to raise it, without the consent of the public given by their representatives in formal legislative Acts. Such a provision secures to the Legislature (except where the Constitution controls to the contrary) the exclusive power of deciding how, when and for what purpose the public funds shall be applied in carrying on the government. Lainhart v. Catts, 73 Fla. 735, 75 Sou. Rep. 47.

There is a pronounced distinction between the appropriation, or the setting aside, of a sum of money for a particular thing, and the actual disbursement of funds to meet the object of such an appropriation. Presumably, the Legislature does not undertake to make an appropriation of any funds not actually or potentially in hand. This is so since the making of an appropriation without having provided revenues from some source to meet it, or without any right to anticipate the accrual otherwise of funds in the Treasury to enable the appropriation to be discharged by an actual disbursement of funds when it is due to be paid, would be the creation of an illegal State debt which would not constitute a current expense of the state inasmuch as it would have to be provided for by subsequent revenue legislation. Advisory Opinion to Governor, 94 Fla. 967, 114 Sou. Rep. 50. An appropriation of the latter character would fail for want of a fund to be appropriated and therefore be void, since every authorized appropriation contemplates the actual or potential existence of revenues already provided by law to be raised to enable it to be paid.

Many mere appropriations are made by the Legislature without any necessity occurring for making an actual disbursement of funds pursuant thereto.^* An appropriation, being merely a setting apart of money to meet an object designed to be paid for out of it, but which may never be actually paid, necessarily contemplates that the revenues accruing in the Treasury to enable it to be paid may be marshalled and disbursed for the discharge of some other cognate appropriation, the object of which shall require an actual disbursement of moneys to discharge it.

Insofar, therefore, as Section 5 of Chapter 17247, supra, provides that such "appropriation" to increase the county school funds shall be on a parity, and of equal dignity as anappropriation, with all other appropriations made by the Legislature (except items therein enumerated), it is simply the statement of a legal conclusion that would follow in any event absent the specific language in the Act, at least so long as the funds are in the State Treasury, or potentially certain to accrue therein from revenue sources reasonably to be anticipated, sufficient to meet the terms of Chapter 17247, supra, as well as the 1935 general appropriation Act (Chapter 16772), both of which are payable out of the general revenue fund.

But insofar as the Legislature by said Section 5 of Chapter 17247 may have intended to accomplish a diminution in the amounts provided to be raised and required by the Constitution to be appropriated to pay the salaries of public officers and other current expenses of the state pursuant to Section 2 of Article IX and Section 30 of Article III of the Constitution, so as to thereby subordinate in practice the actual payment of the current expenses of the State from the constitutional requirement of their full payment, to that of a mere pro rata payment in the same percentage as the state's contribution to the county school fund might have to be paid pro rata because of insufficient funds realized in the general revenue fund, said provision of Section 5 becomes a clear violation of Section 2 of Article IX and of Section 30 of Article III of the Constitution, since both of these sections impose mandatory constitutional duties on the Legislature to raise and appropriate sufficient moneys to defray in full the current expenses of the State authorized to be incurred by the state's officials.

This is not to say that the Legislature is without constitutional power to substantially reduce, or even to abolish its optional appropriations to any state office, institution or agency that may have been created by statute and provided to be carried on as a state activity for a public state purpose. Neither is this to say that the state Legislature may not by an appropriate state statute conserve its financial resources by appropriately amending any provision of law that has been enacted by it, fixing or providing for a stipulated compensation to be paid state officers or employees or authorizing expenditures to be made on the part of the same.

But it is to say, however, that so long as the general system of statutory laws of the state leaves set up, and required by such laws to be operated as a part of the state's governmental and institutional system, divers and sundry offices, employments and institutions, which are not only given the legal authority to function as the sovereign's creatures, but are required by law to be carried on by the responsible officers placed in charge thereof pursuant to an oath of office under Section 2 of Article III of the Constitution to well and faithfully perform the duties of their offices and positions in executing the State's laws by carrying on duly designated state activities, in the course of the execution of which they are authorized by law to incur certain obligations as state expenses to be paid in due course out of appropriations made by the Legislature to pay the same, and against revenues provided by law to be raised by taxation to pay them as current expenses of the state, that the Legislature is without constitutional authority to make available for actual disbursement a permissive legislative contribution out of the general revenue fund to the county school fund, even though an appropriation for the latter purpose is constitutionally authorized by Section 9 of Article XII of the Constitution, until it has first provided for actually raising sufficient revenues to pay in full the lawfully fixed salaries of public officers and the legally established current expenses of the state, as is inescapably required by Section 2 of Article IX and by Section 30 of Article III of the Constitution.

Thus the Legislature may unquestionably abolish the State Board of Control and suspend the operation of all the institutions required by law to be maintained by it. By so doing, it may thereby relieve the State and its Legislature of the duty of hereafter providing for same in its budget of current State expenses. It may likewise, and by the same authority, abolish the State Board of Administration and transfer back to the several counties of the State the duty of raising county ad valorem tax revenues to pay the classes of obligations which the State Board of Administration is required by State law to regularly and systematically administer. And by that means it may release for appropriation to the county school fund, or to any other lawful object of legislative appropriation, all of the revenues that are now going to such board as a State agency.

The Legislature may likewise surrender to the United States War Department all of the military equipment, arms and munitions, which it has received from the Federal government pursuant to the Acts of Congress and Clause 16, Section 8, of Article I, of the Constitution of the United States, and incidentally relinquish the Federal appropriations it has been granted from the general government as Federal aid toward organizing, arming and disciplining its National Guard. By the same token, it may convert its military force into a simple State militia composed entirely of household citizen soldiers whose right to keep and bear arms as such is guaranteed by the Second Amendment to the Constitution of the United States, and thereby release, to be appropriated for any purpose the Legislature may decide as proper, including the common school fund, all amounts of revenue now provided to be expended in payment of military expenses required to be paid by the State toward keeping the State's part of its bargain with the United States government concerning the National Guard.

It may even go further and pass a law disbanding the Railroad Commission as well as the State Road Department, so as to turn over the use of the highways of the State to the indiscriminate use of motor carriers and others, and thereby save the necessity of expending for State purposes any of the large amounts of money customarily appropriated for these bodies as State agencies, in order that the revenues so conserved may be diverted to be used for some other purpose which the Legislature deems more worthy, such as an enlarged contribution to the county school fund.

But in each of such instances, the abolition of the affected office or agency would relieve it of its responsibility of functioning as a part of the State's governmental system. And thereby the affected personnel would be advised from the effective date of the legislative Act that they could no longer look to the State to discharge any further financial obligations to, or incurred by, them.

However, so long as the Legislature by its general system of State laws erects, and requires to be maintained, the State Board of Control as a State agency, with the duty imposed by law on it to operate certain institutions of higher learning, and so long as it charges its public officials with the duty of serving on the State Board of Administration and making and filing a $50,000.00 bond (Section 12, Chapter 14486, Acts 1929) each for the privilege of so doing, and as a security for their performance of duty, and so long as the State receives and uses military equipment belonging to the United States and furnished to it under the law, with the obligation that it shall be safeguarded and kept and the personnel paid for looking after it pursuant to the State's compact with the Federal government in that behalf, and so long as the enlisted officers and men of said National Guard are required under compulsion of fine and imprisonment to respond to a call of duty to the hazard of their lives and limbs under a law providing that they shall be paid certain compensation for so doing, and so long as the statutes require the Railroad Commission of the State to hold quasi-judicial hearings and the State Road Department to administer the State's laws to provide highways under penalty of being removed from office by the Governor for neglect of duty in office if the laws are not faithfully executed by them, the Legislature is without constitutional authority, so long as Section 2 of Article IX and Section 30 of Article III remain a part of the Constitution, to refuse to treat these State agencies and others of like character, as parts of the State government, the current expenses of which are required to be appropriated for, and revenues raised sufficient to defray their current expenses, in order that they may be able to function in accordance with the existing laws.

Beginning with the case of State v. L'Engle, 40 Fla. 392, 24 Sou. Rep. 539, decided in 1898, the primary object of operating the county public free schools and raising revenues therefor has been regarded by law as a county school purpose and not a primary State purpose. Thus the distinction has been consistently preserved between the financing of the county system of public free schools and the raising of revenues to finance the general State government.

The uniform system of public free schools provided for by the Legislature under the Constitution is administered in the respective counties throughout the State not as a State function but as a county school function by the use of the county school funds required by the Constitution to be established in each county from sources of revenue specifically enumerated in the Constitution, such funds to be disbursed by the County Board of Public Instruction solely for the support and maintenance of public free schools.

So, as has been pointed out in the Statement which precedes this opinion, the county school system and the State's right to participate in the financing of the same, except through appropriations to the State school fund under Section 4, Article XII (the interest of which is contemplated to be apportioned to the several counties) have been completely and absolutely separate under the Constitution of 1885. The two functions of government have remained absolutely and completely divorced from each other since the adoption of our Constitution in 1885 until the Amendment to Section 9 of Article XII was ratified at the 1926 election. And, as has been also pointed out in the Statement preceding this opinion, it has been the continuous and consistent construction of Article XII of the Constitution in its entirety by all departments of the State government that, except to the extent modified by Amended Section 9 of Article XII, the Constitution of this State does not permit the direct appropriation of State revenues for any county purpose, whether a county school purpose or not. See Amos v. Mathews, 99 Fla. 1, 126 Sou. Rep. 308, 331, 347.

The Legislature is not required, though it is impliedly authorized, to make appropriations to supplement the county school funds; and the Constitution does not make statutory appropriations to the county school fund a part of "the expenses of the State for each fiscal year."

The Constitution expressly commands that "the Legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year," and contemplates that if statutory appropriations are made for authorized purposes other than State functions and expenses, the Legislature shall provide for raising revenue sufficient to meet such appropriations in addition to the revenues commanded by the Constitution to be provided for, "sufficient to defray the expenses of the State for each fiscal year"; which necessarily excludes legislative authority to subordinate revenues raised to defray the expenses of the State for each fiscal year, to permissive appropriations made for other than State functions or State expenses."^*

Amended Section 9, Article XII, provides that:

"In addition to the tax provided for in Section 8 of this Article, the county school fund shall consist of the proportion of the interest of the State School Fund and of the one mill State tax apportioned to the county, all capitations taxes collected within the county and all appropriations by the Legislature which shall with all other County School Funds be apportioned and distributed as may be provided by law and shall be disbursed by the County Board of Public Instruction solely for the support and maintenance of public free schools."

This amended organic section makes the county school tax levy the primary source of the County School Fund, and does not contemplate that "appropriations by the Legislature" shall be made the primary and dominant source of the County School Fund, as is purported to be done by Sections 2 and 3 of Chapter 17247, Acts of 1935. Prior to amended Section 9, legislative appropriations to the County School Fund were not permitted by the Constitution, but the quoted organic section, as amended in 1926, authorizes, though it does not require, appropriations to be made by the Legislature to supplement the other designated sources of the County School Fund. The Constitution does not make the county school fund a part of "the expenses of the State for each fiscal year," or require the Legislature to provide for raising revenue to supplement the specifically enumerated sources of the County School Fund, therefore the organic command of Section 2, Article IX, that "the Legislature shall provide for raising revenue sufficient to defray the expenses of the State for each fiscal year" cannot be subordinated to the permissive authority given the Legislature by amended Section 9, Article XII, to make appropriations to the County School Fund "in addition to the tax provided for in Section 8" and other designated sources of the county school fund. The Constitution contemplates that when "appropriations by the Legislature" are made to supplement the sources of the County School Fund, the Legislature shall provide for raising revenue sufficient to meetall such appropriations, in addition to the "revenue sufficient to defray the expenses of the State for each fiscal year" which are mandatorily required by Section 2, Article IX, to be raised.

So despite the adoption of Amended Section 9 of Article XII,supra, the uniform system of public free schools which the Legislature is by Section 1 of Article XII required to provide for and liberally maintain is still a county and special tax school district system of public free schools which local officers are not only entitled to operate to the exclusion of any power in the State to take that right from them, but are expressly required by the Constitution itself to operate pursuant to provisions of law establishing in each county a county and school district system for the operation of the public free schools.

Under the pleadings in this case, there is nothing shown to justify the Comptroller in withholding or refusing to pay the relator the amount of salary claimed by him which is shown to be due and owing him under the law and facts of this case. Neither does it appear that there is any obstacle to the Comptroller making such calculations and so marshalling available State revenues as they accrue in the General Revenue Fund that he will be enabled to comply with the constitutional mandate carried out in the general appropriation Act of 1935, and at the same time pay out in part, if not altogether, the special appropriation to the county school fund intended by Chapter 17247 to be made out of the General Revenue Funds of the State for the benefit of the common school fund of the several counties.

It must be presumed by this Court and by the Comptroller that the Legislature has laid ample taxes for raising revenues sufficient to pay all of the moneys that it has undertaken to appropriate by both the Acts above referred to considered as an aggregate appropriation. Only in the event of some actual deficit in the revenues required to meet the items of the General Appropriation Bill in preference to the appropriation made by Chapter 17247, supra, or in the event of some threatened deficit so immediate and imminent as to amount to the same thing, is the Comptroller authorized to withhold or refuse to pay out the items of appropriation made under either of those Acts. This is so, because an appropriation constitutes a mere authority to the State Treasurer to pay warrants that the Comptroller may draw on the State Treasury.

As we have pointed out, any attempt by the Legislature to diminish a payment of a constitutionally created obligation of the State in order to make available funds for a merely permissive county school purpose would be a violation of Section 2 of Article IX and of Section 30 of Article III of the Constitution, and any intendment of Chapter 17247, Acts of 1935, or provision of law purporting to have that effect, would, so viewed, be unenforceable and void and consequently not binding on the Comptroller.

Every appropriation of the Legislature for a State purpose, as set forth in a general appropriation Act passed by the Legislature according to Section 30 of Article III of the Constitution, creates an authority of law in the official or department to whom or for which such appropriation is made, to incur an obligation on the State's part within the terms of the appropriation made, and entitles those who render services or furnish materials to the State thereunder to be paid in full for the services rendered or the materials furnished. And so are payable in full claims for the payment of specific sums of money under general provisions of law providing for and requiring such sums to be paid to the person entitled out of the general revenues of the State, as the term "current expenses of the State" comprehends any claim or demand enforceable by mandamus against the State's general revenue fund by reason of a legislative Act of appropriation therefor, general or special. This is clearly contemplated by Section 2, Article IX, of the Constitution.

Therefore, when the State authorized by law the State Board of Control to employ Professor Kurz, the relator in this case, to render professional services to a State institution that has been lawfully set up to be operated as a part of the State's institutional system, the contract of employment so made with relator under authority of law, and contemplating a payment for services rendered within the limits of the funds appropriated to pay him under the general appropriation Act, conferred on relator a vested contractual right to receive from the State of Florida's treasury that sum of money which the general appropriation Act required to be set apart to be used for the purpose of discharging the State's obligation to him when it fell due. It follows, then, that any statutory scheme for diminution of the appropriation made by the General Appropriation Act to pay relator for the service he has already rendered under a valid contract to pay him in full the amount for which he agreed to serve, merely because the secondary appropriation to the county school fund under amended Section 9 of Article XII may be made unavailable to be paid in full if relator should be paid in full, amounts to nothing more than the indirect taking and appropriation without due process of law, of an indeterminate percentage of relator's earned salary in order to correct a deficiency in the Legislature's intended beneficence to the county school fund, for which deficiency relator is in no wise responsible.

Courts are required to adjudicate asserted legal rights according to law and their considered judgment with reference thereto, not in capitulation to their desires or sense of emotion, nor as may appear to be expedient for the particular occasion. And in dealing with finance and taxation measures passed by the Legislature, the courts are impelled to look to the substance of a legislative scheme in its practical operation and effect, rather than to the mere form in which it has been contrived and enacted. City of DeLand v. Florida Public Service Co., 119 Fla. 804, 161 Sou. Rep. 735 (2nd headnote).

Viewing the substance rather than the form of the legislative scheme here involved, it is obvious that in its practical effect the Legislature has attempted to indirectly tax (or take from) every claimant who has performed service, or furnished materials to the State on the strength of the State's promise to pay infull therefor as implied in its General Appropriation Act, whatever of the amount he has become entitled to receive from the State for his services so rendered or materials furnished that the State disbursement officials may find necessary to exact from him as a deduction from the amount he has earned, in order to make up for a deficit in avails from other taxation revenues anticipated by the Legislature to be collected but failing of realization in accordance with its frustrated expectations.

A direct income tax (which is prohibited by Section 11 of Article IX of the Constitution) if levied at the discretion of the Comptroller in an indeterminate amount on every salary and on the face value of every material contract with the State after it has been performed, would lead to no different practical result, insofar as its effects on the prejudiced party is concerned, than the enforcement of Section 5 of Chapter 17247 in a manner practically operating to accomplish the same thing as herein contended for. To merely analyze the practical workings of such a scheme is to establish at once its inherent invalidity should the statute be so construed as to mean what has herein been urged in argument by some of the parties in interest.

In connection with what has just been said, it is to be observed, also, that the statutory scheme in question neither contemplates nor provides for any advance determination of what, if any, amount a particular claim for work done or materials furnished after it is done or furnished, may have to be reduced in the course of administration of the law by the State's disbursing officers in order to carry out the statute's diminution plan of pro rata satisfaction. The amount of each prorata payment to be allowed, must necessarily fluctuate under such a plan from day to day, being as it is always dependent upon the active financial condition of the State Treasury for the time being.

Thus construed the statutory plan contended for may operate to take without compensation from every contractor who may furnish at a stipulated price per ton one hundred tons of coal to the State Board of Control, the value of forty of the tons furnished. This the statute would certainly bring about in the event that it should be found necessary to do that in order to carry out the "parity" of payment scheme to the county school fund, as it has been argued here that the Legislature intended it to operate.

With similar evil consequences, such plan will take from Professor Kurz, the relator in this case, an indefinite and heretofore undetermined percentage (said in oral argument at the bar to amount to about forty per cent. at the present writing) of what he has already earned as his August salary of $225.00 per month, should the peremptory writ of mandamus applied for in this case be denied. It will also confiscate to the public use without compensation, the interest on, or earning value of the payable portion of relator's salary during the time the State's officers would be compelled to withhold it after it is admittedly due, in order to make up the elaborate calculations that are obviously indispensable to the end that such warrant plan of payment may become capable of administration by the Comptroller.

Questions of law that were suggested in the briefs and adverted to in the oral argument of this case, and which have not been specifically discussed and decided in this opinion, will be reserved for future determination should it become necessary that they be adjudicated in an appropriate proceeding requiring a decision of such questions.

It follows from what has been said that the return of the respondent Comptroller being insufficient in law to preclude the granting of the relief prayed, the peremptory writ of mandamus should be awarded with relator's motion filed to that end.

Peremptory writ of mandamus awarded.

WHITFIELD, C.J., and BROWN, J., and GRAY and JOHNSON, Circuit Judges, concur.

TERRELL, J., dissents in part.

ELLIS, J., absent because of illness.

BUFORD, J., disqualified.

^* For example an emergency relief appropriation such as is made by Chapter 13630, Acts 1929, to take effect only in case of fires, floods, hurricanes and other disasters.

^* For the first Legislature's construction of amended Section 9 of Article XII, Constitution, after it was ratified in 1926, see terms of Chapter 12012, Acts 1927, which first created a State fund to be paid to the public free schools of the counties.