Opinion
1929
STATE OF FLORIDA (SEAL) EXECUTIVE DEPARTMENT
Tallahassee, Fla., April 24, 1929.
DOYLE E. CARLTON, Governor, MALLIE MARTIN, Secretary.
To the Honorable Chief Justice and Justices of the Supreme Court:
GENTLEMEN. — Sec. 13 of Art. IV of the Constitution provides that the Governor may at any time require the opinion of the Justices of the Supreme Court as to the interpretation of any portion of the Constitution upon any question affecting his executive powers and duties.
Sec. 15 of Art. IV of the Constitution provides that the Governor may suspend all officers that shall have been appointed or elected and who are not liable to impeachment, such suspension to be based upon one of the grounds mentioned in that section.
Sec. 3 of Art. XII of the Constitution provides for a State Board of Education to consist of the Governor, Secretary of State, Attorney General, State Treasurer and State Superintendent of Public Instruction, of which the Governor shall be President. By this section of the Constitution it is provided that the State Board of Education shall have power to remove any "subordinate" school officer for cause upon notice to the incumbent.
Sec. 252 (217), Comp. Gen. Laws of 1927, provides that there shall be elected at the general elections provided for by law a County Board of Public Instruction consisting of three members, one from each school district, to be elected from the several counties at large from this State. These officers are elected to office and commissioned by the Governor in like manner as all other county officers.
A question has arisen as to the interpretation of Sec. 15 of Art. IV of the Constitution as compared with Sec. 3 of Art. XII of the Constitution, insofar as the power to remove members of the Board of Public Instruction from office for alleged incompetency, malfeasance, etc., is concerned. A petition asking for the removal from office of the two members of the Board of Public Instruction of Duval County, Florida, has been filed with me as Governor, and also with me as President of the State Board of Education. The Attorney General has stated his opinion to me that under Sec. 15 of Art. IV of the Constitution the sole power to deal with the question of suspension and removal of members of the Board of Public Instruction as prayed for in said petition, is vested in the Governor and Senate.
On the contrary, many eminent members of the bar of Duval County have filed with me brief in which the contention is made that notwithstanding the opinion of the Attorney General, members of the Board of Public Instruction of Duval County are "subordinate" school officers within the purview of Sec. 3 of Article XII of the Constitution, and that the power of removal is vested in the State Board of Education under Sec. 3, Art. XII of the Constitution, and not in the Governor under Sec. 15 of Art. IV of the Constitution.
Therefore, being in doubt as to the proper interpretation to be given to Sec. 15 of Art. IV, and Sec. 3 of Art. XII of the Constitution, and exercising the power vested in me as Governor under Sec. 13 of Art. IV of the Constitution to request the written opinion of the Justices of the Supreme Court in regard to the matter, I have the honor to request your opinion:
(a) As to whether or not under Sec. 15 of Art. IV of the Constitution the Governor has power to suspend from office upon proper grounds therefor a member of the Board of Public Instruction of Duval County, Florida.
(b) Whether or not under Sec. 3 of Article XII of the Constitution the Governor should put into effect an order made by the State Board of Education removing a member of the Board of Public Instruction of Duval County on the theory that such member of the Board of Public Instruction is a subordinate school officer within the purview of Sec. 3 of Art. XII of the Constitution.
(c) Whether or not a proper interpretation of Sec. 15 of Art. IV of the Constitution and of Sec. 3 of Art. XII of the Constitution vests in the Governor and State Board of Education concurrent jurisdiction to suspend and remove members of the Board of Public Instruction of the several counties in this State.
Awaiting your opinion interpreting for me the above mentioned provisions of the Constitution affecting my executive powers and duties, I have the honor to be
Respectfully yours,
DOYLE E. CARLTON, DEC/LP Governor.
Tallahassee, April 29, 1929.
Hon. Doyle E. Carlton, Governor of Florida, Tallahassee, Florida.
DEAR SIR — Pursuant to Sec. 13 of Art. IV of the Constitution, this Court is in receipt of your communication of the 24th instant requesting that you be advised whether or not under the terms of Sec. 15 of Art. IV and Sec. 3 of Art. XII of the Constitution the power to suspend members of Boards of Public Instruction in this State is vested in the Governor or in the State Board of Education or may such power be exercised jointly by the Governor and the State Board of Education.
The pertinent part to your inquiry of Sec. 15 of Art. IV and Sec. 3 of Art. XII of the Constitution is as follows:
Sec. 15. Art. IV. All officers that shall have been appointed or elected, and that are not liable to impeachment, may be suspended from office by the Governor for malfeasance, or misfeasance, or neglect of duty in office, for the commission of any felony, or for drunkenness or incompetency, and the cause of suspension shall be communicated to the officer suspended and to the Senate at its next session. And the Governor, by and with the consent of the Senate, may remove any officer, not liable to impeachment, for any cause above named.
Sec. 3. Art. XII. The Governor, Secretary of State, Attorney General, State Treasurer and State Superintendent of Public Instruction shall constitute a body corporate, to be known as the State Board of Education of Florida, of which the Governor shall be President, and the Superintendent of Public Instruction Secretary. This board shall have power to remove any subordinate school officer for cause upon notice to the incumbent.
An inspection of Sec. 15 of Art. IV as above quoted discloses that the responsibility for suspending all officers that are appointed or elected (and that are not subject to impeachment) for malfeasance, misfeasance, or neglect of duty in office, the commission of any crime or for drunkenness or incompetency is vested in the Governor. Members of the County Boards of Public Instruction in this State are statutory elective officers (Sec. 252, Comp. Gen. Laws of Florida, 1927, being Sec. 217, Rev. Gen. Stats.), and are covered by this provision of the Constitution.
The term "subordinate school officer" as used in Sec. 3 of Art. XII of the Constitution has no reference to constitutional or statutory officers appointed by the Governor or elected by the people. It was doubtless intended to apply to so-called school officers designated by the County or State Board of Education, such as supervisors and attendance officers.
Both Sec. 15 of Art. IV and Sec. 3 of Art. XII were submitted and adopted simultaneously and in the terms in which they are now clothed. This being the case we must assume that each provision was approved with due knowledge of its effect and influence on the other. The interpretation here enunciated finds for both provisions a reasonable field of operation and we think must be the reasonable and proper one.
We are, therefore, of the opinion that the power to suspend members of the Board of Public Instruction in any county in this State for the causes enumerated in Sec. 15 of Art. IV of the Constitution is exclusively an executive function, that the State Board of Education has no authority in the premises, nor can such authority be exercised jointly by the Governor and the State Board of Education.
Respectfully,
GLENN TERRELL, J. B. WHITFIELD, W. H. ELLIS (Dissents) LOUIE W. STRUM, ARMSTEAD BROWN, RIVERS BUFORD, GT:LH Justices of Supreme Court of Florida.