In an opinion written by the chief justice filed I December 1945, in which all members of the court concurred, it was decided that Chapter 23226, Laws of Florida, Special Acts of 1945, offended against Sections 13 and 17 of Article XII and Section 12 of the Declaration of Rights of the Constitution of Florida, also against the fifth and fourteenth amendments of the Constitution of the United States.

Upon re-examination of the record, after reargument pursuant to an order granting a rehearing, and upon reflection, it has occurred to this writer that if the decision is not at least modified the door may be closed to any rearrangement of special school districts until the constitution, at least of the State of Florida, is amended — that is, if redistricting is attempted where any one of the school districts of a given county has issued bonds or constructed buildings or accumulated funds. This conclusion seems inescapable because if all the districts are not free of debt, devoid of funds, and without school buildings and equipment, then a consolidation or rearrangement would give rise to the technical objections presented in this case, which in substance are that the surrender of moneys to the common fund or buildings to the common use or the consolidation of indebtedness would run afoul of constitutional inhibitions. *Page 538

It should be said now that these comments are in no sense a retort to the views of the chief justice, for such would come with ill grace from this writer, who agreed with him, but that this is a sincere effort to ascertain if the act under assault can be held valid, as it is presumed to be, or if struck down whether it meets that fate only because of its unfortunate construction, thereby leaving the door ajar to further legislation authorizing consolidation and alteration of school districts in a manner harmonious with our organic law.

Discussed so much that it now appears trite is the importance of shunning any attempts to make fundamental law so rigid that it becomes an obstacle and an obstruction to the march of progress. I apprehend that as much danger may lurk in interpretations rendering constitutional provisions brittle as in those which would make them too limber, that there should be flexibility, although no elasticity. In no field for the operation of governmental activity is there more opportunity for real harm from an interpretation of the constitution too unyielding than in the school system, a condition evolving from an advancement in education itself and in transportation facilities.

Conceived for the purpose of assuring instruction to children everywhere, however remotely domiciled, school districts were provided so that even the most secluded community or settlement would have the advantage of a schoolhouse and a school-teacher, that this entity, the school district, would endure, its assets intact. Now the picture has changed considerably with the perfection of the highway and the advent of the school bus. The student who yesterday walked a mile to his schoolhouse, where all grades and all subjects were perhaps taught by a single teacher, today rides comfortably and safely in the same time to a school where he is instructed by persons specifically equipped to teach a certain grade or a certain subject. Focusing our attention on Florida, and especially on Miami and Miami Beach, the problem of adjusting educational facilities to shifting populations and augmented and concentrated real estate values become immediately manifest.

This brings us to the preface of the chief justice's pronouncement. *Page 539 In it he pointed out that the assessed valuation of the ten districts of Dade County intended by the act to be consolidated into one district ranged from $1,800,000 to $174,700,000; that the bonded debt varied from nothing (in one district) to $6,269,000; that the "unexpended balance" on hand varied from nothing (in seven districts) to $1,500,000; that the lowest number of pupils in any district was 165, the highest 20,995. In view of these disparities it was thought that Section 2 of the act, Chapter 23226, supra, could not be upheld because it provided that all assets of the ten districts would become the property of one, the consolidated district; that all debts would become its primary obligation.

Taken literally the schoolhouse and equipment of an original district would become the property of the new district; lands formerly in a district which had assumed no tax burden to retire bonds would become taxable for the obligations already incurred by other districts; districts which had no cash balance would participate in funds of other districts which had. Theoretically those districts surrendering to the common fund their cash assets, those taxable for debts they did not incur, those having structures and furnishings absorbed in the consolidated district would be deprived of their property without due process of law. (Section 12, Declaration of Rights of the Constitution of Florida; the fifth amendment and Section 1 of the fourteenth amendment of the Constitution of the United States.) Too, it might be argued, as indeed it has been here, that the legislature undertook by Section 2 of Chapter 23226, supra, to authorize diversion of "District School Funds" contrary to the provisions of Section 13 of Article XII of the Florida Constitution and that all the proceeds of bonds issued by the certain special tax school districts would not, because of their delivery to the common fund, be used exclusively for the public free schools within the districts issuing the bonds, contrary to Section 17 of Article XII of the Florida Constitution.

It seems to this writer, after mature study, that these objections are more apparent than real, more academic than practical. Patently if a district which has in it a school building and equipment is absorbed in another district, the *Page 540 property is not physically moved from one to the other; obviously it only becomes available to students who have formerly resided without that district. By the same token, equipment and housing in the other districts with which it is incorporated become accessible to pupils residing in it.

A somewhat different situation presents itself with reference to cash balances of the various original districts, but even this condition does not seem an insurmountable obstacle to consolidation. It would be merely a matter of bookkeeping to insure that the unexpended balances of those districts boasting cash on hand should be credited on the indebtedness against property in the respective areas composing those districts.

A more serious problem arises with reference to levy of taxes in the whole district to pay the bonded debts in varying amounts of the individual districts composing it, or rather nine of them, and especially the one having no such obligations. We can easily understand the justness of the complaint of a property owner in a district unindebted, or indebted in a comparatively small amount, against assessing his property for its share of the combined debt of the other districts; but here again we see how he may well be protected against such a contingency. The original areas of the districts that had outstanding unpaid bonds could be taxed as if no consolidation had been effected, and the proceeds of each could be earmarked and allotted to the respective issues. This would be somewhat awkward, but after all, this is precisely what is being done prior to consolidation, and, in fact, we are not so much concerned with any clumsiness which may result, it being our duty to hold the act valid if we can and there being no responsibility on the part of the judiciary for the manner in which it was drafted. Thus would an individual property owner be safeguarded; thus would the bondholder escape any diminution of his security, for it would remain as it was, or was anticipated, at the time the bonds were issued. This would be no novel procedure, as will be realized from a study of cases dealing with taxation to discharge bonded debts where the boundaries of cities had been contracted.

If such a plan were followed, the property of a taxpayer in *Page 541 a given district would not be taxed to discharge obligations which he had no voice in contracting, or to put it in constitutional language, he would not be deprived of his property without due process of law. If such a course were followed, bonds would not have been issued for any purpose save "exclusive use of public free schools within . . . such special tax school district," and to cap the discussion we think that such an application of the act would remove it from the category of laws violating Section 13 of Article XII, supra, because "authorizing the diversion or the lending of any . . . District School Funds . . ."

As was observed in the beginning, if no such general plan can be effectuated the school districts of a county may well become static, once they have erected buildings or incurred indebtedness or accumulated funds. This would be detrimental, if not ruinous, to an educational program because it would preclude the school authorities from keeping apace with progress. Applied to the very county from which this appeal has been brought to us, the result is immediately apparent. Three or four decades ago Miami Beach was but a mangrove swamp; Miami, a village. Miami Beach is now one of the wealthiest playgrounds in the world; Miami, a progressive and thriving metropolis. The need for a readjustment of districts so that the schools of the county will reap the full benefit of that vast geographical and economic change is clear. It now seems incongruous that districts created long before the county reached its present state of development could not be changed without transgressing the constitutional rights of the citizens and taxpayers of that county.

We think that the act may be put into effect practically, if somewhat awkwardly, so that the students will get full advantage of educational opportunities and so that the rights of taxpayers and citizens will be safeguarded.

This would seem harmonious with the pronouncement of this court by Mr. Justice Whitfield in Hunter v. Owens, Tax Assessor, 80 Fla. 812, 86 So. 839, where, among other statements, he said that "in testing the validity of a statute with reference to the facts and circumstances upon which it is to operate, the validity . . . does not depend upon the preponderance *Page 542 of evidentiary considerations; but the statute stands unless it conclusively appears that there are or can be no conceivable circumstances upon which it can validly operate or that under no circumstances can it operate or be effective to accomplish the intended purpose, without violating organic rights." Of like effect was an expression of this court in Seaboard Air Line Ry. Co. v. Watson, 103 Fla. 477, 137 So. 719, where it was written that a statute may be unconstitutional when applied in a particular case, but constitutional when properly applied. In Ball et al. v. Branch, 154 Fla. 57, 16 So. 2d 524, Mr. Justice Terrell assembled the rules by which the court is governed in deciding the constitutionality of an act and enumerated them as follows: "(1) the presumption that it is valid, (2) that all doubts must be resolved in favor of its validity, (3) that if there is any reasonable theory upon which its validity can be upheld it is the duty of the courts to resolve that theory in favor of its validity, and (4) if confronted by two theories of interpretation one of which results in striking it down while the other results in upholding it, it is the duty of the court to adopt the latter interpretation if consistent with reason." It has been said by this court, too, that we should not construe or apply a statute to make it conflict with the constitution when a construction or application may as well be adopted giving it a contrary effect. In re Seven Barrels of Wine, 79 Fla. 1, 83 So. 627.

So it seems that by its application and by its operation the statute under assault may, if we reason along the course charted by these authorities, be held not to violate any constitutional rights of the persons who here complain and others in like situation. If any effort is made to apply it otherwise, they may seek redress when that occasion arises.

Appellants insist that the act as a whole violates Sections 10 and 11 of Article XII because it attempts to reduce the number of school districts in Dade County to one, although these provisions contemplate that there shall be more than one in each county. The first of the sections reads, "The Legislature may provide for the division of any county . . . into convenient school districts . . ."; the second, "Any incorporated town or city may constitute a School District." *Page 543 (Italics supplied.) Use of the plural in the former, appellants urge, meant that there must be at least two districts, and this, so they continue, is emphasized by the provision that a city might constitute one district, for, to quote their brief, "the framers of the Constitution knew [1885] that in Florida a county would always be divided into urban and rural areas."

This argument is a bit too hypertechnical to lead to the conclusion that these sections (10 and 11) of Article XII contain a limitation upon the power of the legislature to authorize a county to constitute one school district.

The next challenge is directed at Section 3 of Chapter 23226 providing that three trustees shall be elected from the district, which is of course coextensive with the county, but that no two of them shall "come from any one district for which a county commissioner is provided for by law." The restriction, patently proposed to prevent all trustees from being resident in the most populous area of the dirtrict or county, is said by appellant to violate Section 10 of Article XII. There it is written that "the Legislature may provide for the division of any county . . . into convenient school districts; and for the election biennially of . . . trustees . . ." It is appellants' thought that any person in the district otherwise eligible for election could not be made ineligible by reason of the location of his domicile; that the restriction is not warranted because it "violates the majority rule," to quote the brief. But I cannot see that it does. It is true that only one person may "come from" any one commissioner's district, but there is no restriction on the expression of a choice by all the electors in the whole district. Obviously this provision was designed to give the entire territory better representation than if the trustees were elected "at large," in which event all of them might be, and probably would be, resident in a section where the number of voters was greatest.

The constitution does not grant power to the legislature, only limits it. It is difficult, if not impossible, to find expressed or implied limitation in the simple words just quoted, which mean in effect that the legislature may provide for the election of trustees. The only qualifications seem to be the *Page 544 number of them, the frequency of the elections, the term of the office, and the supervisory capacity of the trustees chosen.

The last question which seems to merit discussion and decision — the fifth and only remaining question has been determined by what has been said in dealing with the others — is the one involving the charge that the act contravenes Section 21 of Article III of the constitution. Unquestionably the law is a local one, and no application for its passing was published, so its validity is dependent on compliance with the mandate that it be approved at an election "in the territory affected." This "territory affected," say appellees, is Dade County; this "territory affected," insist appellants, is the ten separate and distinct districts of Dade County.

I am well aware of the possibility that a majority of the voters in a given district may disapprove of the plan of consolidation and that the desire of a majority of electors in a relatively lightly populated district might be overwhelmed by the total vote of the entire county, but the principal concern is the education of the child; the plan to this end is countywide; and the county as a unit is the "territory affected" as contemplated by this provision of the constitution. Although the decision in Nabb v. Andreu, 89 Fla. 414, 104 So. 591, is not precisely in point because of a difference in the set of facts, the principles there and here are so similar that the former is most persuasive to the conclusion that separate elections and approvals in all ten districts were not indispensable to the validity of the consolidation. Nothing in such a ruling seems shocking or suggests that a minority may thus be oppressed by a majority. When the high purpose, the education of youth, is regarded as the chief objective it is readily seen what mischief could result from a contrary decision. It could well be that this very purpose would be hampered, if not thwarted, because the over-all program for a large population did not meet with the approval of a comparatively small group in a thinly populated section.

Needless to say, the courts are as much concerned with the constitutional guarantees of the few as of the many, but if the provisions of the act in question are applied as we have suggested, these basic rights will not be jeopardized despite *Page 545

the apprehensions of the citizens in the least populous or least indebted districts.

The writer has not dwelt so far on the provision, much complained about by appellants, with reference to the new district becoming "primarily liable for all the bonds and other obligations of the several districts so consolidated and subject to be taxed for the payment thereof . . ." There is no desire to slight this important provision in the act; so this thread of the discussion should now be joined with the others before conclusion is reached. There was no attempt on the part of the Legislature to detail how this tax should be spread. It has already been remarked that the entire district should not be taxed indiscriminately to meet the obligations of the individual parts of it or, to use the other language of the act, to make the whole primarily liable for the total outstanding indebtedness in the strict sense of those words. Of course there will be a primary responsibility on the part of the new district to see that the obligations are retired — in the manner I have indicated. This provision of the act (Section 2) cannot be held constitutional if the language is taken literally, but if the law is made to operate as I have already pointed out, it will not then be unconstitutional.

When the consolidated district comes into being the former districts at once lose their identity. As a consequence, there must be a successor to which holders of outstanding bonds can look for the disbursement of interest and sinking funds, and for the levy of taxes to maintain and replenish those funds. This responsibility falls upon the new district, or its representatives, and again the requirements of the act will be followed and the inhibitions of the constitution obeyed if this mandate of the former is construed as a prime obligation to see to it that provision is made from time to time for the discharge of indebtedness of the original districts. And if this is done in such fashion no cause appears for just complaint either from creditor or debtor or taxpayer.

In fine, this writer is convinced that the act by its application and operation can be saved; that, as apprehended at the outset, the way to re-formation is not barred; that further legislation on the subject is not imperative. *Page 546

Chief Justice CHAPMAN and Mr. Justice BUFORD adhere to the original opinion; while Messrs. Justices TERRELL, BROWN, ADAMS and SEBRING concur in the opinion of Mr. Justice THOMAS prepared after rehearing, so the judgment of the lower court determining Chapter 23226, Laws of Florida, Acts of 1945, to be constitutional and denying injunctive relief is affirmed and the declaratory findings and interpretations of the lower court otherwise, are modified to conform with this opinion.

TERRELL, BROWN, ADAMS and SEBRING, JJ., concur.

CHAPMAN, C. J., and BUFORD, J., dissent and adhere to the original opinion.