State Ex Rel. Garrison v. McLaurin ( 1930 )

Upon the precise question with which the opinion of the court deals, namely, whether the commissioners are public officers, there has heretofore been no express decision in exact point in this state; and when the decisions in other states are examined, there are found two lines of judicial interpretation, one to the effect that such commissioners are employees or contractors, and the other that they are officers. Although most of those cases deal with commissions which had no substantial basis for any claim of more than a purely transient and clearly temporary nature, yet, even as to these, many of the courts have differed, so that all that can truly be said of the actual state of the authorities is that they are hopelessly divided on the subject. Our court in reaching a decision in this case has been influenced, as will be apparent from the opinion in chief, by the fact that on occasions heretofore commissions for building purposes and the like have been created in this state, and that these have not been challenged. And certainly not, for never before, so far as research has placed before us, has any commission with such powers of continuation in their places, at their own discretion, ever been created in this state, or in any other state, so far as the diligence of counsel has brought to our attention, except in the case of the Florida purchase centennial commission, which was promptly declared unconstitutional by the Supreme Court of that state, in State v. Jones, 79 Fla. 56, 84 So. 84.

But leaving aside the division of the authorities throughout the country on the question whether these commissioners should properly be held to be, or not to be, officers, and accepting the conclusion of the opinion in chief that they are not officers, then I am of the opinion that the decision should go further, and as was done with the only similar act, found in the books in respect to the features hereinafter mentioned, namely the Florida act, we should declare this entire act unconstitutional and void, and that the positions are not offices, because in the real and basic law they are nothing, do not exist, call them what we may.

The opinion in chief does not mention, except as may be implied, the constitutionality of the act. This is, of course, upon the general principle that courts will not decide constitutional questions unless raised by the parties, and certainly, the parties here would not raise the question, for a decision that the statute is unconstitutional would put both sides out of any place, whether of office or employment. But the rights of the public are involved here, not so much in the present as in the future, and the personal attitude of individual litigants ought not be permitted to becloud the inherent issue which the facts of themselves present in such a situation as is here before us. And unless some notice be given to the point, exactly that will be done in the future which has been done now, in the references to commissions in the past, except more, in that this act will be referred to as having traversed the entire course of authoritative approval as to all inherent features, and thus will furnish an argument, and in practical effect a precedent, for action in the days that are to come. For that reason, it seems to me, the question should be noticed, and I therefore outline briefly what in my opinion is the result produced by the decision in this case, namely, that the entire act is unconstitutional and void, and that there is neither an office nor an employment in the case.

There are certain retained and fundamental rights of the people, the continued existence and perpetuation of which are assumed as a part and parcel of the foundations of their written constitution; and the opening and concluding clauses of the bill of rights in our Constitution refers broadly to those essential conceptions, namely, that "all political power is vested in and derived from the people; all government is founded upon their will only," and that "the enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in the people." It is of the very spirit of constitutional government in this state that those who exercise a part of the sovereign power of government shall, at fixed intervals of reasonable periods, return to the people an account of their conduct and submit to the people, as a fundamental and inherent right of the people, whether those so exercising said powers shall be continued in the exercise of that power. And it certainly cannot be controverted, as a settled principle of constitutional law, that acts inconsistent with the spirit of the Constitution, inconsistent with its assumed fundamentals, contrary to the general scope and purpose thereof, are as much within its prohibitions as if forbidden by the express letter of some of its particular provisions.

It is not seriously disputed but that the commission in this case is vested with a portion of the sovereign power of the state, in fact with a considerable portion, as a casual reading of the act in question will disclose; in fact, further, within the area of its operations and in respect to more than one million dollars worth of the most valuable available property owned by the state, its powers are practically without effective limitation. And the act (Laws 1926, chap. 115) carries in section 14 and the subsequent sections thereof provisions of the amplest nature by which the commission is vested, not only with every essential power and discretion in respect to the disposition of more than one million dollars worth of the state's most valuable lands, but is expressly given the power to do this only when in the absolute discretion of the commission it shall decide to do so. One of the provisions, and which is illustrative of several others to the same effect as contained in this act, is as follows: "The commission is authorized and empowered to sell said property divided into parcels and/or lots, but not as a whole. The commission is otherwise granted plenary power, authority and discretion as to the manner and time at which and how it shall market said property, with authority to market the same in its discretion so as to place the property on the market in the most gradual advantageous manner, and so as not to affect its value by too large an offering at one time."

It is manifest that under the provisions of the quoted section, and of the others which it illustrates, these commissioners, exercising far-reaching and important powers of the state, with all their numerous employees, may at their own election remain in their positions, if only they will to do so, for the period of their natural lives, and their successors at their death may do the like for the lives of the successors, and all this, without responsibility to any other authority on earth, without the slightest supervision and control from any quarter, and, unless the repeal of the act can be secured, they are safely beyond the reach of any human power but their own.

Is this not a startling proposition to put before the people of this state, and would it not be even more startling to say that such a thing is within the Constitution which they have ordained for the protection and preservation of their government and of their public rights and public concerns?

What is said here has no reference to present litigants. We are not here concerned with particular persons; nor do we refer to any supposed purposes of the present commission. We are concerned only with what could be done by them, or their successors, or by the persons on any commission of such unguarded powers and privileges. We are concerned therefore, or should be, with great governmental principles, which will extend far beyond the time when we who are here to-day will, all of us, be long dead and perhaps forgotten. It is the consequences of the future with which we should be concerned; the present amounts to but little, except as it projects into the future. And we know much of the future by the dangers that have come upon us in the past. What if in future years, a trafficking legislature and a complaisant governor should proceed to contract out to their favorites the public lands, the public contracts, and the public works of this state? Would they not have a model, from which to fashion their plans, in the very acts which we have here before us, and could they not be astute enough to embody their legislation into elaborate written contracts and thereby come squarely within Hall v. Wisconsin, 103 U.S. 5, 26 L. Ed. 302, and make their action irrepealable by a subsequent legislature? What would have happened in the dark days of 1871 to 1875 if the venal aggregations then sitting as legislators had thought of such a scheme as this? And worse still, if such legislation as this is valid, the members of the legislature can themselves be the commissioners or contractors, and could parcel out the public property and public works of the state to themselves during their natural lives. Could anything be more monstrous in a free government among free people?

I maintain therefore, and repeat, that we should declare that, as a result of this decision, this entire act is void, and that there are no positions within it to be occupied or filled — call them offices, employments, or contracts, or whatever name may be chosen; we should by such a declaration make it impossible to endanger the safety of representative government in the future by any such menacing legislation.