Chapter 11272 Laws of 1925 is a special act of the Legislature by which a special tax district in Volusia County is sought to be created.

In this proceeding the State of Florida through the office of the Attorney General attacks the validity of the act upon the ground that the governing board of the special tax district, which is to consist of five members and in whom is vested the powers of a body corporate, to contract and be contracted with, sue and be sued, acquire, hold and convey real and personal property, and to borrow money and issue notes and bonds and other evidences of indebtedness which become an obligation of the district requiring the levy and collection of a public tax upon the properties within the district to discharge, cannot lawfully exist because the act provides that the terms of office of the members of the board shall be six years, which is in violation of the provisions of Section 7 Article XVI of the Constitution which prohibits the Legislature from creating any office the terms of which shall be longer than four years.

The majority opinion concedes that the "Commissioners being officers of the District, all provisions in the Act for *Page 341 their appointment for terms of six years must be held to be violative of Section seven of Article Sixteen of the Constitution, mandatorially requiring that no office be created for a longer term than four years."

The Legislature attempted by the act in question to create five offices the terms of office of which should be six years each. The five officers were to constitute the governing body of the district and in the governing body the powers mentioned were to be vested. Two of the Commissioners from Sub-Districts 1 and 3 should, under the terms of the Act hold office for four years and their successors should be appointed for six years, but the commissioners from sub-districts 2 and 4, three in number, should hold office for a term of six years and their successors should be appointed for a term of six years.

Now if "all provisions in the Act" for the appointment of Commissioners "for terms of six years must be held to be violative" of the Constitution there remains in the act only those provisions for the appointment of the two Commissioners from Sub-districts 1 and 3 for four years after which no provision remains for the appointment of their successors because the provisions for the appointment of their successors require six-year terms for them, while no provision is left for the appointment for any length of time of either one of the remaining three commissioners originally or for the appointment of their successors.

Assuming that two of the Commissioners, those to be appointed from sub-districts 1 and 3, may hold office on the original appointment for four years, the two offices thus created for that period would not under the act constitute the governing body of the district nor even a quorum of that body and as the attempt to create three more officers, with terms of office of six years from the very beginning, was void as in violation of the Constitution it *Page 342 follows that the governing body of the District could not be created.

For such a defect in Chapter 7921 Laws 1919 this Court declared the whole act to be unconstitutional and void. See State ex rel. Swearingen v. Jones, 79 Fla. 56, 84 South. Rep. 84.

The majority opinion declares however that in "view of Section Twenty and Section Twenty-one relative to the interpretation and the elimination of any unconstitutional parts of the Act, we think all provisions relative to six-year terms and appointments may be regarded as eliminated and the Act held valid as providing the appointment of all Commissioners for terms of four years." Even if the Legislature has the power to authorize the court to write into an act words that would cure unconstitutional and void clauses and sections of an act, Chapter 11272,supra, makes no such amazing attempt to so delegate legislative power.

Section 20 merely provides that the provisions of the act be liberally construed if and when necessary, while Section 21 merely provides that when any clause or section of the act may be declared invalid for any reason such invalid clause or section may be eliminated and the remaining portion or portions thereof shall be and remain in full force and be valid as if such invalid clause or section had not been incorporated therein.

The inhibition which the Constitution places upon the Legislature is in the matter of the creation of offices. Offices must not be created the terms of office of which shall be more than four years. By the act in question the Legislature attempted to create offices with terms of office longer than four years. Such attempt was void and must be eliminated from the act. When eliminated there is no remaining portion thereof as to Commissioners for the District left to be in full force and valid. *Page 343

The interpolation of words in the act to supply the unconstitutional and consequently void portions of the act is not justified either by the terms of the act or any judicial authority and such interpolation of saving words is in direct conflict with the decision of this Court in Swearingen v. Jones, supra.

Harper v. Galloway, 58 Fla. 255, 51 South. Rep. 226; Cooley's Constitutional Limitations, 7th Ed., 211, and Sinking Fund Commissioners v. George, 104 Ky. 260,47 S.W. Rep. 779, do not uphold such doctrine. The constitutional provisions upon the subject are essentially different from the provision of the Constitution of this State. Those authorities may support the very generally accepted doctrine that where an act of the legislature may still be workable and carry out the purpose of the Legislature, notwithstanding one or more unconstitutional and void clauses, such clauses may be ignored and the remaining valid portions of the act remain in force, but no authority exists, under our form of government, in the courts to substitute sections, clauses or portions of their own phraseology that would be valid for sections, clauses and portions declared by the court to be unconstitutional and void.

I think the demurrer to the information should be overruled and Relator's demurrer to the answer should be sustained.