State v. Bryan (50 Fla. 293, 1905)

Shackleford, C. J.,

(after stating the facts.) The first eight grounds of the demurrer interposed by the respondents to the information attack the form thereof and question whether or not the same has been properly brought or will lie. Our attention has been called by the respective counsel to a number of authorities bearing upon these grounds and we have had the benefit not only of carefully prepared briefs relating thereto but of elaborate oral arguments as well. Although these points are replete with interest and we appreciate the able and thorough manner in which they have been presented to us by the respective counsel, we have determined that no extended- discussion thereof by us is either advisable or necessary, especially so since counsel for the respondents, while raising and strenuously arguing these points of practice and procedure, have requested us in the event the act is sustained to render a decision upon the merits of the case, and for the further reason that an examination Of these points has led to an investigation of the entire case presented by the record, and as it has been argued by counsel, and we have reached a conclusion thereon, thei’efore we have decided to dispose of the ease on its merits, with only brief reference to these preliminary matters. Jacksonville Electric Light Co. v. City of Jacksonville, 36 Fla. 229, text 262, 18 South. Rep. 677, S. C. 51 Am. St. Rep. 24, 30 L. R. A. 540.

As we said in our Advisory Opinion to the Governor, 49 Fla. 269, 39 South. Rep. 63, text 64, “The duties to be performed by such board (the State Board of Control) are important and essentially governmental in character. The office is continuous and permanent, and remains to be filled, though the incumbents may die or resign.” It necessarily follows, then, as was said by this court, speaking through Mr. Justice W.ESTCOTT, in the very able and exhaustive opinion rendered by him in State v. Gleason, 32 Fla. 190, text 224 et seq.: “An information in the nature of a quo warranto may be filed at the discretion of the Attorney General in a case of this character. The proper process 'issues on demand of the proper officer of the State, as a matter of cours,e, and there is no more necessity for an application to this court for this writ than there would be for a summons in a Circuit Court when the State is about to commence an action of debt against one of her debtors. No reasons are offered why the writ should issue, no information is communicated by affidavit or otherwise, and there is no power in this court to refuse issuing the writ. Why ask leave? It is the admission that this court has a discretion, whereas none is conceived to exist.’ 8th Missouri, 331.

Under the laws of this State, the Attorney General is as much the representative of the State of Florida in the Supreme Court, as the King’s Attorney General is his representative in the Court of King’s Bench; indeed, more so, as in the Court of King’s Bench there are for certain causes representatives of the King’s other than the Attorney General; while here, it is his sole duty to 'appear in and attend to, in behalf of the State, all suits or prosecutions, civil or criminal, or in equity, in which the State may be a party, or in anywise interested, in the Supreme Court of this State.’ Acts of 1845, page 5.

The office of Attorney General is, in many respects, judicial in its character, and he is clothed with a considerable discretion. The appropriate and proper function of courts is to hear causes that the citizens of the State may see proper to institute, and there are but few cases in which they can exercise a discretion to refuse to hear them. The Attorney General being intimately associated with the other departments of the Government, being as well the proper legal adviser of the Executive as the Legislative department of the Government, it is highly proper, whenever the right to a public office is to be tried, that he should be clothed with a discretion in the premises which should be exercised at least independently of the courts in actions of this character. A careful review of the cases in the books will show that the records disclose that in almost every case of this kind there is more or less political feeling, and the case at bar discloses no less, and indeed much more, of this than is usual. Is it to be said that it is a function appropriate to a court to weigh the motives of contending political factions, examine into their various political theories, attempt to enter into their breasts, and determine motives? Are they to measure with microscopic analysis, and ascertain whether there is passion and prejudice, and after ascertaining that there is, to fix by judicial determination just how much of each, or either, or both, is necessary to remove a case from judicial scrutiny?

The court cannot criticize the motives of a party acting as an officer; it may, in some cases, exercise a discretion where a relator clothed with no official discretion asks its aid. In him are vested no public rights, no governmental discretion, and he seeks a judicial tribunal as an individual, and should not be permitted to inquire into rights to franchise unless the public good is promoted thereby.

This discretion is vested in the Attorney General; if he exercises it improperly, there is another tribunal, the people, or their grand inquest, the Assembly, to punish him.” Also see Robinson v. Jones, 14 Fla. 256; State v. Jones, 16 Fla. 306; Lake v. Palmer, 18 Fla. 501, text 506, et seq.; State v. Anderson, 26 Fla. 240, text 251, et seq., especially 253, 8 South. Rep. 1; Buckman v. State, 34 Fla. 48, text 56 et seq., 15 South. Rep. 697, S. C. 24 L. R. A. 806.

The statutes now in force relating to the institution of proceedings upon writs of quo warranto in this State are found in the Revised Statutes of 1892, and are as follows:

“1781. Power of court to make parties. — In all proceedings upon writs of quo warranto, or upon information in the nature of such writs, or in civil actions instituted to obtain the remedies obtainable by such proceedings, where the Attorney General institutes the action and does not. make all the persons claiming title to the office parties, it shall be within the power of the court to make parties defendant of all persons claiming the office and not made parties by the Attorney General. But the said persons so desiring to be made parties shall be required to set forth by petition under oath a prima facie case of right and title to the office before the court can be reqxiired to make the order, and to give security to the satisfaction of the court for the payment of all costs which may be awarded against them.

1782. Right of claimant upon refusal of Attorney General. — Any person claiming title to an office which is exercised by another shall have the right, upon refusal by the Attorney General to institute proceedings in the name of the State upon such claimant’s relation, or upon the Attorney General’s refusal to file a complaint setting forth his name as the person rightfully entitled to the office, to file an information, or institute an action in the name of the State against the person exercising the office, setting up his own claim. In this case, the court is authorized and required to determine the right of the claimant to the office if he so desires. However, in this as well as in all other proceedings of this character, no person shall be adjudged entitled to hold an office except upon full proof of his title to the office.”

It is unnecessary for us to discuss the changes which have been made in our statutes since the opinion in Gleason v. State, supra, was rendered. Suffice it to state, as was said by this court in State v. Anderson, supra, text 251, in referring to the case of Gleason v. State, supra, “There is nothing in our jurisdiction as defined by the present Constitution (1885) that renders the above decision inapplicable or without controlling authority now.” We would add- that none of the changes made in our statutes since that decision was rendered have lessened or impaired its force or applicability upon the points now under consideration. It still remains not only the leading case in this court upon the subject of proceedings upon writs of quo warranto, but as was admitted by the respective counsel, if we understood them correctly, one of the leading cases in the United States. It is, then, the settled law in this State, as it was at common law, that “an information in the nature of a quo warramto may be filed at the discretion of the Attorney General in a case of this character,” and that “there is no more necessity for an application to this court for this writ than there would be for a summons in a Circuit Court when the State is about to commence an action of debt against one of her debtors.” State v. Gleason, supra, text 224, 225; State v. Anderson, supra, text 253. “This discretion is vested in the Attorney General; if he exercises it improperly, there is another tribunal, the people, or their grand inquest, the Assembly, to punish him.” State v. Gleason, supra, text 226.

Upon the Attorney General, then, rests the responsibility for the filing of this information, for its form, nature and contents, including all of its allegations. This authority and responsibility so vested in him cannot be delegated by 'him to any person or persons, or even cast upon this court. See Shortt’s Informations, Mandamus and Prohibition, Amer. Ed. by Heard, star pages 112 et seq. and authorities cited in notes; 23 Amer. & Eng. Ency. Law (2nd ed.) 601 et seq. and authorities cited in notes; 17 Ency. of Pl. & Pr. 428, 441, 442, 444, 448, and notes; High’s Extraordinary Remedies (3rd ed.) Section 697, and notes; 1 Spelling’s Injunctions and Other Extraordinary Remedies (2nd ed.) Sections 1834 et seq. and notes. It would seem that the proper practice in a proceeding of this character is to institute it in the name of the State upon the relation of the Attorney General. Gleason v. State, supra.

The requirement in section 37 of Article 5 of the Constitution of 1885, being in substance the same as the one in force at the time the decision in Gleason v. State, supra, was rendered, is as follows: “The style of all process shall be ‘The State of Florida,’ and all prosecutions shall be conducted in the name and by the authority of the State.”

iWe shall treat this information as brought in the name of the State upon the relation of the Attorney General, though in a somewhat informal manner, considering the mention of the so-styled relators as mere surplusage and in no way affecting the validity of the information, nor in any way affecting the absolute control of the case by the Attorney General in his official capacity. See Shortt’s Information, Mandamus and Prohibition, Amer. Ed. by Heard, star page 112, note 1; Commonwealth v. Fowler. 10 Mass. 290; Goddard v. Smithett, 3 Gray (Mass.) 116; Commonwealth v. Allen, 128 Mass. 308; Attorney General v. Adonai Shomo Corp. 167 Mass. 424, 45 N. E. Rep. 762; High’s Extraordinary Remedies (3rd ed.) Sections 697, 703; 17 Ency. Pl. & Pr. 462.

Assuming, then, without further discussion and without passing upon the points raised by the first eight grounds of the demurrer, that the proceedings in the instant case have been properly instituted and that the inf ormation is in sufficiently proper form' to warrant our consideration of the case on its merits, for the reasons already stated, without more ado, we pass to the consideration ■ of the merits.

The ninth and only remaining ground of the demurrer is that “Chapter 5384 of the laws of Florida assailed as unconstitutional is not obnoxious to the constitutional provisions set forth in the information.”

This brings us face to face with the act in question and we must determine whether or not it is sufficient to withstand the attack made upon it in the information and the amendment filed thereto and treated by the respective counsel as forming a part thereof. This we shall now proceed to do, taking up for consideration the grounds of attack upon the constitutionality of said act in the order in which they appear in the information and- the amendment. Before doing this, however, it may he well for us to remember and 'bear in mind throughout this discussion that “No rule of constitutional construction is better settled than that if there be a doubt whether a legislative enactment is strictly constitutional, or that if it be not clearly opposed to constitutional restrictions, the courts will not hold the enactment to be invalid. If the courts were to hold otherwise they would become mere lawmakers, undertaking to place obstacles in the way of legislation which had not been plainly placed there by the people in framing the Charter itself, and deny to the people represented in the Legislature a power they had not denied to the legislative department.” ’Cheney v. Jones, lá Fla. 587, text 607. As was said in Holton v. State, 28 Fla. 303, 9 South. Rep. 716, 2nd head-note, “A liberal rule of construction should be applied when the constitutionality of legislative enactments is questioned; and every reasonable doubt should be resolved in favor of the constitutionality of the act assailed.” Also, as was said in State ex rel. Turner v. Hocker, 36 Fla. 358, text 368 et seq. 18 South. Rep. 767, “In passing upon the constitutionality of statutes generally, no matter from what standpoint the attack thereon may be made, it is a well-settled and cardinal rule that nothing but a clear violation of the Constitution will justify the courts in overruling the legislative will; and where there is a reasonable doubt as to the constitutionality of an act it must be resolved in favor of the act, and it should be upheld. It is further well-settled that 'constitutional provisions for the government of the legislative department in the enactment of laws, like those quoted above, are mandatory, and that it is the duty of the courts to adjudge the law invalid and void in cases where it is clear, beyond reasonable doubt, that these provisions have been violated or ignored; but these provisions should receive, not a technical construction, but a reasonable one; and looking to the evils intended to be remedied thereby, only such legislative acts should be overthrown as are clearly and obviously offensive in their spirit and meaning. See the numerous cases cited in the notes to Davis v. State, 61 Amer. Dec. 331.” Also see to the same effect County Commissioners of Duval County v. City of Jacksonville, 36 Fla. 196, 18 South. Rep. 339, 29 L. R. A. 416; State v. Canfield, 40 Fla. 36, 23 South. Rep. 591, 42 L. R. A. 72; Webster v. Powell, 36 Fla. 703, text 715, et seq., 18 South. Rep. 441; State ex rel. Attorney General v. Burns, 38 Fla. 367, text 388, 21 South. Rep. 290.

Having before us these principles, which must guide us in our investigation and determination, we now turn to the grounds of objection urged against the constitutionality of the act in question, and, as a matter of convenience, we shall number the grounds and divide them into separate sections.

I.

The first ground alleged in the information against the constitutionality of the act in question is as follows: “That the said act is in violation of the constitution of the State of Florida and the constitution of the United 'States and is void and of no effect and confers no powers, functions, franchises or privileges upon them (the officers named in the information) for that by act of Congress of July 2, 1862, the funds for the establishing and maintenance of the Florida Agricultural College was donated by the government of the United States for the certain purpose therein expressed as follows, to-wit: ‘to teach such branches of learning as are related' to agriculture and the mechanic arts, without excluding other scientific and classical studies and including military tactics in order to promote the liberal and practical education of the industrial classes in the several pursuits and professions of life.' And the act of the legislature, Section 279 of the Eevised Statutes of Florida in words accepted said donation for the same purpose; and for that the contract then and there and thereby entered into by and on the part of the State of Florida with the Government of the United States and the act of Congress upon the subject, which is the supreme law of the land, requires the said State to use the said funds for the maintenance of a college of the class expressed in the words and terms of the contract created in the transaction of the said donation and acceptance and according to the terms of the act of Congress; whereas under the requirements of the said act of the legislature, no student can be admitted to said Agricultural College except those who have passed a satisfactory examination at some high school, and through the twelfth grade as now established, or some other institution of learning having an equivalent of instruction to the twelfth grade, which excludes the persons and classes for whom said provision of said act of Congress was made. So that the said act is void as impairing the obligation of the contract and as conflicting with the said 'act of Congress.”

The act of Congress referred to in the above- quotation from the information is found in Vol. 12 of U. S. Statutes at Large, 503, et seq., 2 Fed. Stats. Annotated, 850 et seq., but we deem it unnecessary to copy this act here for the reason that the same was extensively discussed by this court in State ex rel. Attorney General v. Knowles, 16 Fla. 577, as was also Chapter 1766 of the Laws of Florida of 1870, of which Chapter section 279 of the Revised Statutes of Florida, of 1892 formed a part. In the statement and opinion in this case a full history of what was done under this Act of Congress ¡by the State of Florida, including all the amendments to Chapter 1766 adopted by the Legislature of Florida is set forth, and as to these matters we content ourselves by referring to said cited case. There, as in the instant case, the constitutionality of the Act of the Florida Legislature then in force in regard to The Florida Agricultural College was assailed largely upon the same grounds which form the basis of attack in the instant case. In the opinion rendered therein by Mr. Justice WEIS'TOOTT it was held that Chap. 3045 of the Laws of 1877, which amended Chap. 1766 of the Laws of 1870, was not unconstitutional, and the following language on page 616 et seg. was used by Mm: “The next general proposition as to this statute is that it impairs the obligation of a contract. The statute changes the trustees of this college. It substitutes the trustees named in the act of 1877 for those named in the act of 1872, as the act of 1872 substituted those named in it for those mentioned in the act of 1870. The ground upon which this view is based is that this is a private not a public corporation. The corporation is itself founded by the State through property derived from the government of the United States. These trustees are made by this legislation the agents of the State to collect and disburse property appropriated by the General Government to the State for a public purpose.

There, is not and never was any private property in the trustees in the funds. They were derived from the government. The founder of this institution was the government of the State of Florida, and the property which constituted its basis was public moneys of the State of Florida derived by it from the government of the United States in trust for the establishment of an institution of this character.

It never was the purpose of the State of Florida to give these trustees any private right to this property. Throughout the whole legislation they are shown to be simple public agents to manage a public property. The only right they have to it is by the legislation of the State, and every section of these acts shows that it was founded by public funds and for a public purpose, 5 Stew. & Port., 23; 4 Wheat., 518.

It may be true that any legislation of the State appropriating these funds to any other purpose than that public purpose named in the act of Congress, might have been in bad faith, but that is a matter which does not concern these trustees, nor does this fact change the nature of the institution.”

It will ibe borne in mind that the cited case was, as is the instant case, a quo warramto proceeding.

We are of the opinion that there is no force in this objection and that it is without merit. It is not pointed out to us in what manner any of the provisions of the act assailed as being unconstitutional defeats the purpose of the act of Congress. It is not charged directly in the information that any students have been or will be deprived of the right to receive the benefits of a college education contemplated by the act of Congress, the title of which act is “An Act donating Public Lands to the Several States and Territories, which may provide Colleges for the Benefit of Agricultural and the Mechanic Arts.” It surely cannot be seriously contended that the Legislature has not the right to provide proper educational qualifications for admission to the college so created by the Legislature under the provisions of this act of Congress. Undoubtedly some judgment and discretion were to be used by the Legislature in prescribing these qualifications, otherwise how could the institution in question be a college? As a matter of fact, the Legislature in Section 15 of Chapter 1766 of the Laws of 1870, brought forward into the Revised Statutes of 1892 as section 293, relating to the Florida Agricultural College, expressly conferred upon the faculty thereof the authority to “determine the basis of admission” to the college, thereby recognizing the fact that all pupils, regardless of age or qualifications, were not entitled to admission. This provision has never (been called in question, so far as we are informed, but has been silently acquiesced in ever since its enactment. If the faculty could be left by the Legislature unrestricted in determining “the basis of admission,” why could not the Legislature itself fix this basis, as it did in the act in question? Congress certainly did not intend that a State accepting the provisions of the act and establishing a college thereunder should admit thereto any children who saw fit to apply, whether in the kindergarten, primary or whatsoever department, in default whereof the contract so made between Congress and the State would be impaired and the act of Congress thereby violated. To so hold would be an utter absurdity, a.nd yet the contention of the relator logically leads to this reductio ad absurdum. But this is not all. On turning to Chap. 1 of Title 5 of the Revised Statutes of 1892, embracing sections 225 to 267 inclusive, to say nothing of the various acts amendatory that have been enacted into law’s since the adaption of the Revised Statutes, we find that the State of Florida has made most ample and liberal provisions for her public schools, so that every child within her borders has the opportunity of receiving full and adequate preparation for admission to the University of the State of Florida created by Chapter 5384 of the Laws of 1905, which act is 'here assailed as being unconstitutional. Also see Chapter 5206 of the Laws of 1903, being entitled “An Act to Define the Grades of Instruction which shall be Taught in the Uniform System of Public Schools of Florida, to Aid and Encourage the Establishment of Public High Schools and Rural Graded Schools, to Prescribe Conditions, Provide for Inspection, and to Make Appropriations Therefor.” We would further refer to Chapters 5381, 5382, and 5383 of the Laws of 1905, immediately preceding Chapter 5384. A mere reading of these laws will prove convincing that the State, acting through her legislative arm, is endeavoring to aid in every possible way the design contemplated by the cited act of Congress, “to promote the liberal and practical education of the industrial classes in the several pursuits and professions of life.” Wherein the act in question is “void as impairing the obligation of the contract and as conflicting with the said act of Congress” we utterly fail to see.

Even if it be assumed that students below the twelfth grade as mentioned in the assailed law have a legal right to admission to the University of the State of Floxdda, which, howevei*, has not been made to appear to us, that right could be enforced by appropriate proceedings, notwithstanding the provisions of the act in question upon the subject, and the provisions so contained in the act could not make the entire act unconstitutional or void. See Hart v. Bostwick, 14 Fla. 162, text 171; Ex parte Pitts, 35 Fla. 149, 17 South. Rep. 76; State ex rel. Attorney General v. Dillon, 32 Fla. 545, 14 South. Rep. 383, 22 L. R. A. 124; English v. State, 31 Fla. 340, 12 South. Rep. 689; Donald v. State, 31 Fla. 255, 12 South. Rep. 695; State ex rel. Moody v. J. T. & K. W. Ry. Co., 20 Fla. 616.

We would also call attention to the case of State v. The Vicksburg & Nashville R. R. Co., 51 Miss. 362, wherein that court had occasion to pass upon and construe certain acts of the Legislature of that State dealing with proceeds derived from the sale of lands donated to the State by the act of Congress of 1862, which is the act with which Chapter 5384 is said to conflict in the instant case. In the opinion rendered in the cited case the court said, page 366, in speaking of the investment to be made of the trust fund derived from the sale of the lands, “The discretionary power of the legislature over the subject is full. The foregoing observations are applicable in the main as respects the college, or colleges that may become the beneficiaries. The legislature is free to establish one or more colleges of the character described in the act of Congress, and make them the recipients of the interest for their support, or it may, as it has done, bestow it upon the universities. Tliese universities are public eleemosynary corporations, which dispense the bounty of the State, their founder, to such persons as it directs. They were created by the State, and are supported by public funds, and are instrumentalities in the scheme of education. Both of them are subject to change and modification by the legislature. Against the State, neither of them can set up a vested right to property, or corporate franchises. Their governing boards are appointees of the State without right or power to continue the succession. The State could withdraw the interest of the fund from them, and found another institution and make it the recipient of it.” This opinion is instructive upon several points in the instant .case and we shall have occasion to refer to it again.

II.

The second ground of unconstitutionality stated in the information is: “That the said act impairs the obligation of the contract of the State of Florida with the people who donated to the Board of Trustees of the Florida Agricultural College who were agents of the State for the purpose of locating -said college, $15,000 and one hundred acres of land in consideration of the location of the Agricultural College at Lake -City, as hereinbefore mentioned in that the said act provides for the removal of the Florida Agricultural College from Lake City without any cause for such removal, and also -takes from them their property in the -premises without due process of law.”

We are of the opinion that there is even less merit in this specification than in the first objection, which we have just discussed, and -a part of what we said there has equal applicability 'here. The quoted extract from the able opinion of Mr. Justice SIMRALL in State v. The Vicksburg & Nashville R. R. Co., supra, is especially in ■point. Also, as was well said by counsel for the respondents, “The existence of -a contract is essential to its obligation, and, if there be no contract, there is no obligation of it to be violated.” See 8 Cyc. 991; Lobrano v. Nelligan, 9 Wall. 295; Bryan v. Board of Education of the Kentucky Conference of the Mehthodist Episcopal Church, South, 151 U. S. 639, 14 Sup. Ct. Rep. 465. Also see the excerpt quoted above from State ex rel. Attorney General v. Knowles, 16 Fla. 577, text 616 et seq., which also seems to us to be directly in point. We quote further from page 617 in that opinion, “It is insisted that the obligation of a contract with W. H. Gleason is impaired by the act of 1877, in that it directs a removal of the college. This question is entirely independent of the question raised in this case, which is the right of the trustees to hold and exercise a public trust against the provisions of a statute naming other persons trustees in their stead. Because they have made a contract with some one else cannot extend their powers or rights.

The question whether a city or town has made a contract with A, B or 0 is entirely distinct from the question whether the Legislature may not change the affairs of a public municipal corporation.

What has been said disposes of the further objection, on the ground that these respondents are deprived of their property without due process of law.”

We also find from the statement and opinion in the cited case that, under Chapter 1766 of the Laws of 1870, and the act supplementary thereto being Chapter 1905 of the Laws of 1872, certain persons named therein as trustees of the Florida Agricultural College were empowered and authorized, among other things, to “determine upon the location of the college at some healthy and conveniently accessible point, which location shall be as near the centre of the State as possible;” in accordance with section 10 of Chapter 1766, the trustees proceeded to complete the organization and establishment of the college and to select a site for the location of the college buildings. “To this end they advertised for propositions from different localities desiring the location of the college for contributions to aid in its construction, and received from ffm. H. Gleason an offer of over two thousand acres of land, situate at Eau Gallie, on condition that the college should be permanently located at that place. The trustees accepted this offer, and a contract was made with Mr. Gleason, by which the land was conveyed to the college, and the location of the college was fixed at Eau Gallie, where the trustees commenced the construction of buildings.” Chapter 3045 of the Laws of 1877 “provided for a change of the entire management and control of the Florida State Agricultural College, ¡by removing the trustees or directors created by Chapter 1905, and substituting others in their stead; and also a change of the organization of the officers and committees, and the removal of the college from Eau Gallie, where it had been located under the contract with Mr. Gleason.” See especially section 4 of Chapter 3045 of the Laws of 1877, which reads as follows:

“Sec. 4. It is hereby further enacted, That the said Board of Trustees provided for and established by this act shall have power to remove said Agricultural College, now located at Eau Gallie, on Indian River, in Brevard county, to any point that in their judgment will be for the best interests of the State of Florida; Provided, That the point which may be selected for its location shall be easily accessible and as near the centre of the State as practicable.”

Under and by virtue of the power and authority conferred upon them by 'Chapter 3045, which act was held constitutional in the cited case, the new trustees proceeded to remove'the Florida Agricultural College from Eau Gallie and to locate the same at Lake City. Section 289 of the Rev. Stats, of 1892, simply provides that “The college shall remain at its present location unless the same be changed iby statute,” the “present location” not being named therein.

If any contract was made and entered into by the municipality of Lake City or by certain people who donated to the Board of Trustees of the Florida Agricultural College $15,000 and one hundred acres of land, in consideration of the location of said college at that point, this contract must have been made with the Trustees, and it would seem that what was said- by this court in the cited case of State ex rel. Attorney General v. Knowles, supra, disposes of this second objection to the constitutionality of Chapter 5384 adversely to the contention of the relator.

However, putting the most favorable construction possible upon the contention of the relator which forms the basis for this second objection, and assuming that a contract was made by the State of Florida, whether acting through the Legislature or the Trustees of the College, with said municipality or the donators, in order to secure the location of the college at Lake City, then what follows? What kind of right are involved, public or private? If the latter, as would seem to be the case, then quo warranto is not the proper remedy for the trial of exclusively private rights. It is available only where the public, in theory at least, have some interest. 23 Amer. & Eng. Ency. Law (2nd ed.) 610, and authorities cited in note 6.

The opinion rendered by. this court in Florida, C. & P. R. Co. v. State ex rel. Town of Tavares, 31 Fla. 482, 13 South. Rep. 103, 34 Amer. St. Rep. 30, 20 L. R. A. 419, is in point. That case was ¡brought to this court by writ of error to a judgment of the Circuit Court awarding a peremptory writ of mandamus requiring the plaintiff in error to locate its depot at a particular point in the town of Tavares. In the opinion rendered therein we said, page 508, “There is no better settled elementary principle in the law of mandamus than that the writ will never lie to enforce the performance of private contracts.” We also quoted and approved the following language from Marsh v. Fairbury, Pontiac and Northwestern Eailway Company, 64 Ill. 414: “The location of railroad depots has much to do with the accommodation of the wants of the public. And when once established, a change of affairs may require a change of location, in order to suit public convenience. We cannot admit that an individual is entitled to call for the interference of a court of equity to compel a railroad company to locate unchangeably its depot at a particular spot to subserve the private advantages of such individual. Eailroad companies, in order to fulfill one of the ends of their creation — the promotion of the public welfare — should be left free to establish and re-establish their depots wheresoever the accommodation of the wants of the public may require. To grant the relief asked for by the complainant, we would regard as against public policy.”

We further quoted and approved the following from People ex rel. v. Chicago & Alton R. R. Co., 130 Ill. 175: “It is in recognition of the paramount duty of railway companies to establish and maintain their depots at such points, and in such manner, as to subserve the public necessities and convenience, that it has been held by all the courts, with very few exceptions, that contracts materially limiting their power to locate and re-locate their depots, are against public policy, and therefore void.”

Also see the other quotations and authorities cited in the opinion.

With how much more force does this reasoning apply in the instant case. If the Legislature had the power to appoint trustees and authorize them to change the location of the college previously established at Eau Gallie, under a contract made with Win. H. Gleason to locate said college permanently at that point and to remove it to any point that, in their judgment, would be best for the interest of the State, why might not a subsequent Legislature appoint other trustees and confer a like power upon them? If Chapter 3045 of the Laws of 1877 was not unconstitutional for that reason, how can we hold Chapter 5384 of the Laws of 1905 to be unconstitutional, when a like attack is made upon it? Surely if the Florida Agricultural College, or the University of Florida, to call it by its name as changed by Chapter 5272 of the Laws of 1903, is a public institution, it is subject to legislative control as other public institutions, and the State in legislating concerning it is but dealing with its own property in the way that will in its judgment best subserve public interests. Moreover, actuated by a spirit of fairness toward the donors, who had made contributions of land' and money in order to secure the location of the college at Lake City, the Legislature expressly provided in Chapter 5384, that in the event none of the institutions of learning created thereby should be located at Lake City, the State Board of Education should refund to the City of Lake City the fifteen thousand dollars and the one hundred acres of land so donated by it.

We deem further discussion of this objection superfluous, and so pass to the third objection urged.

III.

The third ground of unconstitutionality urged is: “That it is provided by Section 1, Article 3 of the Constitution of the State that the legislative authority of the State shall be vested in a Senate and a House of Representatives which shall he designated the Legislature of the State of Florida; whereas in and by the said act the Legislature has attempted to delegate its powers of making laws in the matter of the removal of the said Florida Agricultural College and the location of the University thereby created; the said institutions having been located by law. Section 289, Revised Statutes of Florida.”

We have already practically disposed of this objection in discussing the second objection.

It is true, as we have said and is contended by the relator that section 289 of the Revised Statutes of 1892, provides that the Florida Agricultural College shall remain at its present location unless the same be changed by statute. This location, as we have seen, had been fixed by the trustees at Lake City, as its previous location had been fixed by' former trustees at Eau Gallie. Chapter 3015 of the Laws of 1877 had appointed other trustees and empowered them to remove the college “to any point that in their judgment will be for the best interests of the State of Florida; provided, that the point which may be selected for its location shall be easily accessible and as near the centre of the State as possible.” Acting under the authority so vested in them by said Chapter the trustees appointed therein, in the exercise of their judgment and discretion, located the college at Lake City, and, in that way Lake City secured the location of the college. If Chapter 3015 of the Laws of 1877 was held to be constitutional, as it was by this court in State ex rel. Attorney General v. Knowles, supra, how can we hold Chapter 5381 of the Laws of 1905 unconstitutional because it authorizes and empowers the State Board of Control created thereby and the State Board of Education, at a meeting of both of said boards to be held in joint session at the Capital, to determine the place of location of the University of the State of Florida? If the former act was constitutional, .jvhy is not the latter? Said Chapter 5384 expressly repeals section 289 of the Revised Statutes of 1892. It cannot be successfully contended that the Legislature did not have the power to repeal this section. In fact, the section so repealed expressly provides that the location of the college might be changed by statute. Is not Chapter 5384 a statute? While it does not undertake to designate the location of the University of the State of Florida, created thereby, as undoubtedly might have been done therein by the Legislature, we fail to see wherein it is rendered unconstitutional by the delegation of the selection of the location to the two Boards named therein.

As was said by this court in Ex-Parte Wells, 21 Fla. 280, text 323, “We do not mean to admit by what we have said that it is ‘always essential that a legislative act should be a completed statute which must, in any event, take effect as a law at the time it leaves the hands of the legislative department. A statute may be conditional and .it may be made to depend upon a subsequent event’.” Also see the discussion therein as to the discretion vested in the Governor by certain acts of the Legislature which were attacked as being unconstitutional. We refer also to Railroad Commissioners v. Pensacola & A. R. Co., 24 Fla. 417, text 471 et seq., 5 South. Rep. 129, 12 Amer. St. Rep. 220, 2 L. R. A. 504, and Storrs v. Pensacola & A. R. Co., 29 Fla. 617, text 620 et seq., 11 South. Rep. 226, as .throwing light upon the delegation of certain powers by the Legislature, in the matter of regulating rates, to the Railroad Commissioners. The following authorities may also prove instructive upon this point: Cooley’s Constitutional Limitations (7th ed.) 164 et seq., and authorities cited in notes; People v. Dunn, 80 Cal. 211, 22 Pac. Rep. 140; Field v. Clark, 143 U. S. 649, 12 Sup. Ct. Rep. 495; The Cargo of the Brig Aurora v. United States, 7 Cranch (U. S.) 382; Territory ex rel. Smith v. Scott, 3 Dak. 357, 20 N. W. Rep. 401; Advisory Opinion, 138 Mass. 601; Hildreth v. Crawford, 65 Iowa 339, 21 N. W. Rep. 667; The Governor v. McEwen, 5 Humph. (Tenn.) 241; Matter of New York Elevated R. R. Co., 70 N. Y. 327; People v. Harper, 91 Ill. 357; Hurst v. Warner, 102 Mich. 238, 60 N. W. Rep. 440; Stone v. Farmers’ Loan & Trust Co., 116 U. S. 307, 6 Sup. Ct. Rep. 334, 388, 1191; 8 Cyc. 830 et seq., especially 833 and authorities cited in note 96. We think it clearly apparent from an examination of the foregoing cited authorities, to say nothing of the numerous others to which we have referred, that the Legislature has not delegated or attempted to delegate its legislative powers to the two Boards, as urged in the objection we are now considering. If the act in question be unconstitutional for the reasons urged in this objection, it necessarily follows that many other laws which have been enacted, some of which have been on the statute books for many years, are unconstitutional for like reasons. To mention only a few, we refer to section 769 of the Revised 'Statutes of 1892, Chapter 4348 of the Laws of 1895, conferring certain powers upon the State Board of Health; certain sections of Chapters 4 and 5 of Title II of the Revised Statutes of 1892, and the various amendments thereof, conferring certain powers upon the boards of medical examiners and pharmacists mentioned therein; Section 429 of the Revised Statutes of 1892, originally enacted in 1855, conferring certain powers upon the Trustees of the Internal Improvement Fund; Chapter 4893 of the Laws of 1901, creating and conferring certain powers upon the “Capitol Improvement Commission,” Chapter 5472 of the Laws of 1905 creating and conferring certain powers upon the “Governor’s Mansion Commission;” Section 15 of Chapter 1766 of the Laws of 1870, brought forward into the Revised Statutes of 1892 as section 293, relating to the Florida Agricultural College empowering the faculty thereof to “determine the basis of admission, the length of complete and partial courses of study, the studies to be pursued, and the text books used,” &c. Still other acts could be added to the foregoing, but we have referred to a sufficient number to serve our purpose.

IV.

We now come to the fourth ground of unconstitutionality alleged in the information, which is: “That in the said act of Congress donating to the State the said fund for the establishment and maintenance of the Florida Agricultural College, and in the act of the Florida Legislature accepting the same, it is provided that military tactics shall be taught in the said college; and whereas in and by the said act of the Legislature, Chapter 5384, it is provided that military tactics shall only be taught in the University, including the Agricultural College, in the event it shall be so determined by the said joint board therein mentioned.”

This need not detain us long. While it is true as was held in Minneapolis Brewing Co. v. McGillivray, 104 Fed. Rep. 258, cited by the relator, that “The constitutionality of a statute is not determined by what has been actually done thereunder, but by what may be done by virtue of its provisions,” yet the facts in the instant case are so unlike those in the cited case as to render the latter of but little applicability, as an examination of the cited case will show. We shall not take the time to discuss the points of difference. While section 2 of Chapter 1766 of the Laws of 1870, section 2 of Chapter 1905 of the Laws of 1872, section 1 of Chapter 3045 of the Laws of 1877 and section 279 of the Revised Statutes of 1892, in speaking of “the design” of the Florida Agricultural College, all refer to the teaching of “military tactics” therein, yet, as we have already seen, section 15 of Chapter 1766 of the Laws of 1870, brought forward into the Revised Statutes of 1892 as section 293, confers upon the faculty the power of determining, among other things, “the studies to be pursued” therein. Section 21 of Chapter 5384 of the Laws of 1905 prescribes certain departments which the University of the State of Florida shall have and contain, “and such other departments as may from time to time be determined upon and added at any joint meeting of the State Board of Education with the said Board of Control,” then contains the further provision, “and shall include military tactics if the said joint Boards shall deem the same requisite and proper.” How this last quoted clause can render the act unconstitutional we are at a loss to understand. There is no allegation or even intimation in the information that the joint boards have determined that military tactics shall not be taught in the institution or that they contemplate so deciding. Even if they should so decide, we do not well see how the State could raise the question, especially in a quo warranto proceeding. The reasoning in State v. The Vicksburg & Nashville R. R. Co., 51 Miss. 361, text 366 et seq., is applicable, though in that case the proceeding was by bill in chancery. Also see State ex rel. Attorney General v. Knowles, supra, text 616 et seq.; Emigrant Company v. County of Adams, 100 U. S. 61; Mills County v. Railroad Companies, 107 U. S. 557, 2 Sup. Ct. Rep. 654; Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 4 Sup. Ct. Rep. 663.

However, be this as it may, if it is the legal duty of the State, whether acting through the Legislature directly, through the two joint boards named in the act, or through the faculty of the institution, to require military tactics to be taught therein, this duty can be enforced by appropriate proceedings, instituted by a prospective student desiring instruction in military tactics against the proper parties, and the provisions complained of in the objection under consideration cannot affect the validity of the entire act. See authorities already cited by us near the close of division 1 of this opinion.

V.

The fifth ground of unconstitutionality alleged against the act is: “That in and by the Constitution of the State of Florida the disqualification of persons for office in said State and the power of the legislature to enact laws excluding persons from offices in said State are prescribed and limited; but it is provided in and by the said act, Chapter 5384, that the Board of Control therein and thereby provided for shall consist of five citizens of the State; one from East Florida, one from South Florida, one from West Florida, one from Middle Florida and one from Middle South Floirda, who shall have been residents and citizens thereof for a period of at least ten years prior to their appointment; and that no member of said first Board should be appointed from any county in which any of the institutions named in said act were located, and no appointment upon such board shall ever be made from any county in which an institution created by the act may 6r might be located or situated, which provisions are contrary to and in violation of the constitution of said State.”

This ground is strenuously and ably argued by the relator, but it seems to us that, subjected to a rigid analysis, it has only a semblance oí force. The provisions of the Constitution which it is contended in the argument in support of this ground are violated by the act in question are section 27 of Article 3 and section 5 of Article 6, which read as follows:

“Section 27. The legislature shall provide for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution, and fix by law their duties and compensation.”

“Section 5. The legislature shall have power to, and shall enact the necessary laws to exclude from every office of honor, power, trust or profit, civil or military, within the State, and from the right of suffrage, all persons convicted of bribery, perjury, larceny, or of infamous crime, or who shall make or become directly or indirectly interested in, any bet or wager, the result of which shall depend upon any election; or that shall hereafter fight a duel or send or accept a challenge to fight, or that shall be a second to either party, or that shall be the bearer of such challenge or acceptance; but the legal disability shall not accrue until after trial and conviction by due form of law.”

In the consideration of this ground it may be well to bear in mind the difference between the State and the Federal Constitutions. This difference was well defined by this court in the second head-note in Cotton v. County Commissioners of Leon County, 6 Fla. 610, which is as follows : “In proceeding to define and determine the constitutional power of the legislative department, it is proper to note the characteristic difference which marks our Federal and State Constitutions. Whilst the former contains only specific grants of powers, the latter makes a general grant of all the political power of the people, restrained only by specific reservations. Hence in determining upon the validity of statutes the acts of Congress are to be construed with greater stringency, than the acts passed by our General Assembly.” Also see Chapman v. Reddick, 41 Fla. 120, text 133, 25 South. Rep. 673; State ex rel. Lamar v. Jacksonville Terminal Co., 41 Fla. 377, text 398, 400, 27 South. Rep. 225. Ex parte Henderson, 6 Fla. 279, also contains an interesting discussion generally of the point now under consideration. Also see Barber v. State, 13 Fla. 675, text 682; State ex rel. Florida Pub. Co. v. Hocker, 35 Fla. 19, 16 South. Rep. 614. In the light of these authorities, it is settled beyond cavil, as was said in Chapman v. Reddick, supra, text 133, that “Our State Constitution is a limitation upon the power; and unless legislation duly pased be clearly contrary to some express or implied prohibition contained therein, the courts have no authority to pronounce it invalid.”

The power of the legislature to pass laws regulating appointments to stautory offices is absolute unless restrained by some constitutional provision. See State ex rel. Attorney General v. Covington, 29 Ohio St. 102, and authorities there cited; Darrow v. State, 8 Colo. 417; State ex rel. v. Thompson, 38 West Va. 485, 24 L. R. A. 343; State ex rel. v. Dillon, 32 Fla. 545, text 568; Hanna v. Young, 84 Md. 179, 34 L. R. A. 55.

The only constitutional provisions bearing upon this subject and presented for consideration here have been set out in full above.

Section 5 of Article 6 of the Constitution quoted in fall above does not deal with the general subject of disqualifications of persons for office, but it simply makes it the duty of the legislature to enact the necessary laws to exclude from every office within the State the persons falling within the classes therein named. It does not undertake to make such enumerated persons the only persons who may be excluded from offices to be established by the legislature. The constitutional duty to enact laws to exclude persons from office extends only to those referred to in the quoted section, and there the duty imposed by the Constitution in that respect stops. This section does not define or relate to jurisdiction, as did the one under consideration in Singer Manufacturing Co. v. Spratt, 20 Fla. 122, and in Ex-parte Cox, 44 Fla. 537, 33 South. Rep. 509. Neither does it undertake the regulation of any property right, as did the one under consideration in Hinson v. Booth, 39 Fla. 333, 22 South. Rep. 687. It grants no power or authority but simply prescribes a duty, requiring the Legislature to enact laws excluding from every office the persons enumerated therein, but the language used cannot be said to forbid the Legislature from enacting laws excluding other persons than those named from statutory offices. The principle of the maxim, expressio uni-us est exclusio alterius, should be applied with great caution to the provisions of an organic law relating to the legislative department, and we are of the opinion that it is not applicable here. See State ex rel. Lamar v. Jacksonville Terminal Co., supra, text 397 to 403 inclusive. As was said in State ex rel. Attorney General v. Covington, supra, text 118, in the consideration of this matter, “we have confined ourselves, as was our duty to do, solely to the question of legislative power, without any thought or inquiry as to the wisdom of the act, or the motives which induced it.”

Again, there being no inhibition in the constitution as to the creation of other offices than those named therein, but on the contrary there being an express recognition of such power in section 27 of Article 3 above quoted, the Legislature has the right to create such other offices and to prescribe the qualifications of the officers to be elected or appointed to such offices, so long as no provision of the constitution is infringed in so doing. Belles v. Burr, 76 Mich. 1, 43 N. W. Rep. 24; Plummer v. Yost, 144 Ill. 68, 33 N. E. Rep. 191, 19 L. R. A. 110; Hanna v. Young, 84 Md. 179, 35 Atl. Rep. 674, 34 L. R. A. 55. We have not been informed wherein the Constitution has been violated in the creation of the State Board of Control and the filling of the same by appointment by the Governor, as has been done by the act in question, otherwise than by the objections and argument in support thereof which we have just treated. This contention is not supported hy the authorities.

Section 27 of Article 3 of the Constitution imposes upon the Legislature the duty of providing “for the election by the people or appointment by the Governor of all State and county officers not otherwise provided for by this Constitution,” but the method of providing for such election or appointment is not prescribed, the only limitation being that the selection of such officers shall be by election or appointment. The constitution prescribes the qualifications of electors but not of persons who may be appointed or elected to such an office as the one under consideration. It seems to us, in the light of the cited authorities, that the Legislature was left absolutely free in the matter, to the extent that we have stated. The qualifications and exclusions mentioned in the act relate not to classes of persons, but to place and length of residence, and they do not in effect make the appointment to the office in question a legislative appointment; but, on the other hand, in compliance with the constitutional provision cited, such appointment is required to be made by the Governor, whose discretion of choice is not limited except as to reasonable and salutary requisites as to place and length of residence of persons to be appointed. There is nothing in the case of State ex rel. Clyatt v. Hocker, 39 Fla. 477, 22 South. Rep. 721, 63 Am. St. Rep. 174, cited by the relator, which is in conflict in any way with the views which we have just expressed. The case of State ex rel. Attorney General v. George, 23 Fla. 585, 3 South. Rep. 81, also cited by the relator, seems to us to militiate against his contention rather than to strengthen it, and we might well cite it in support of the conclusion which we have reached. As to the authorities from other courts cited by the relator we have given them a careful examination but find nothing therein sufficiently convincing to cause us to reach a different conclusion, our decisions being binding upon us.

It is further contended by the relator that the act is violative of section 15 of Article 4 of the constitution because it provides that members of the State Board of Control may be removed by the Governor, whereas said section provides that officers who have been appointed or elected may be removed by the Governor, for any of the causes therein named, by and with the consent of the Senate. We do not understand in what respect the act is in conflict with this constitutional provision. If the Governor should wish to remove one or more of such members, it is presumed that he would do so in the way prescribed by the constitution.

VI.

We have now reached the sixth ground upon which the act is assailed as being unconstitutional, which is: “That it is provided by Section 25, Article 3 of the Constitution of the State of Florida that the Legislature shall provide by general law for incorporating such educational, agricultural, mechanical, transportation, mercantile and other useful companies or asociations as may be deemed necessary; but it shall not pass any special law on any such subject, and any such special law shall be of no effect; provided, however, that nothing therein shall preclude special legislation on the subject as to a university, or the public schools, or as to a ship canal across the State; whereas the said act contains special legislation on subjects forbidden by said section of the constitution, to-wit: The Florida Female College, the Institute for the Blind, Deaf and Dumb, the Colored Normal School and other institutions not connected with the university, the public schools, nor a ship canal across the State.”

This section in its original form as found in the Constitution of 1885, ended with the word “necessary,” and did not contain the words “transportation” and “mercantile.” As 'amended under the joint resolution proposed by the Legislature in 1899, and adopted at the general election 1900, this section now reads as follows:

, “Section 25. The Legislature shall provide by general law for incorporating such educational, agricultural, mechanical, mining, transportation, mercantile and other useful companies or associations as may be deemed necessary; but it shall not pass any special law on any such subject, and any such special law shall he of no effect; Provided, however, That nothing herein shall preclude special legislation as to a university or the public schools, on as to a ship canal across the State.”

In support of this objection the relator contends among other things, that the exclusion of a university and the public schools from the provisions of the section by the proviso necessarily includes in the provisions of the section the Florida Female College, the Institute for the Blind, Deaf and Dumb and the Colored Normal School, all of which are made the subject of special legislation in the act in question, although none of such institutions are connected with the university, the public schools or a ship canal across the State. It now behooves us to pass upon this contention and to determine whether or not it is well founded. Assuming that none of these institutions can be said to come under the terms “A university” or “a ship canal across the State,” can they be held to be embraced in the term “the public schools?” Before undertaking to answer this question it may be Avell for us to first consider the circumstances which led to th,e adoption of the amendment to