State ex rel. Milton v. Dickenson

Taylor, C. J. (after stating the facts.) Section 27, of Chapter 4684, laws enacted in 1899, to enforce the provisions of which this proceeding was instituted, provides as follows: “It shall be the duty of the board of county commissioners in each county in which, there is a company or battery of State troops to provide each company or battery with an armory suitable for its. meetings and drills and the safe storage of arms and equipments.” The first contention of the motion to quash the alternative writ is that the provision of this section of the law-is void because it violates the provisions of sections 5 of Article IX of the Florida constitution, which reads as follows: “The legislature shall authorize the several counties and incorporated cities or towns in the State to assess and impose taxes for county and municipal purposes, and for no other purposes, and all property shall be taxed upon the principles established for State taxation. But the cities and incorporated towns shall make their own assessments for municipal purposes upon the property within their limits. The legislature may also provide for levying a special capitation tax, and a tax on licenses. But the capitation tax shall not exceed one dollar a year, and shall be applied exclusively to common school purposes.” The limitation imposed by this section of the organic law upon the legislature in its grants of authority to the counties to assess and impose taxes is, that such taxes must be for none other than county purposes. As the expense of building or renting armories for State troops must necessarily be met by taxation, if follows that the validity of a law imposing the burden of supplying such armories upon the counties must depend upon the question whether or not it is a county — 627 — purpose. And this brings us to the question,-is a company of State troops, regularly enlisted as a part of the militia of the State, in any sort or sense such a county institution of the county where its members individually reside, as that the erection or maintenance of its armory in such county can properly be termed a county purpose? Section 1 of Article XIV of our constitution provides as follows: “All able-bodied male inhabitants of the State between the ages of eighteen and forty-five years, that are citizens of the United States, or have declared their intention to become citizens thereof, shall constitute the militia of the State; but no male citizen of whatever religious creed or opinion shall be exempt from military duty except upon such conditions as may be prescribed by law.” Section 2 of the same article provides that “the legislature may provide by law for organizing and disciplining .the militia of the State, for the encouragement of volunteer corps, the safe keeping of the public arms, and for a guard for-the State prison.” Section 3 of the same Article provides for the appointment by the Governor, by and with the consent of the Senate, of two Major-Generals and four Brigadier-Generals of militia. Section 4 of the same Article provides that “the Governor shall have power to call out the militia to preserve the public peace, to execute the laws of the State, to suppress insurrections, or to repel invasion.” Section 16 of Article IV of our constitution provides that “the Governor shall appoint all commissioned officers of the State militia, including an Adjutant General for the State. The Adjutant-General shall be the chief officer of the Governors staff, with the rank of Major-General. His. duties and compensation shall be prescribed by law. Section — 628 — -4 of Article IV of the constitution provides that ‘‘the Governor shall be Cominander-in-Chief of the military forces of the State, except when they shall be called into the service of the United States.” From these provisions of our organic law It will be ■seen that that instrument recognizes and provides for the militia as a State institution, of which the chief executive -of the State is made the commander-in-chief, and it is ■designated therein as being “the militia of the State” mud every able-bodied male inhabitant of the State, regardless of the county of his residence, between the ages '■of eighteen and forty-five years, who are citizens of the United States, or who have declared their intention to ’become citizens thereof, are made members thereof; and it is made the duty of the legislature to provide by law for the proper disciplination thereof; and, as part and parcel thereof, to encourage, volunteer corps. The arms with which they are equipped are also recognized as being the public property of the State. The provisions of section 2 of said Article XIY, providing for the State militia. also -seem to contemplate that the legislature may from the body of the militia of the State supply a guard "for the State, prison. If the State prison were fixedly established in any particular county and a company of "State militia were organized in such county exclusively of residents thereof, and such company were assigned to duty as a guard for such State prison, there could be no question 'hut that the expense of housing and mainten■an.ee of such guard would be properly chargeable to the "State. And this duty of acting as a guard for the State ■prison seems to be contemplated by the constitution as being one of the functions of the militia of the State. 'Their other functions and dirties are summarized in sec629 lion 4 of Article XIV above quoted as being subject to. the call, not of a count}’ or any local official, but of the-Governor, to preserve the public peace, to execute thé laws of the State, to suppress insurrection, or to repel invasion, not confinedly in any particular county or locality, but anywhere within the borders of the State. In a democratic form of government like ours the military establishment may be said to be the dernier resort of governmental authority, that is never called upon except when all other civil authority fails and becomes powerless to preserve public order. It is the .strong arm of, and represents the might of governmental sovereignty, and is a power that should never be surrendered to an agency of the State, such as a county or municipality, but should be held, as our constitution seems to contemplate, subject to be wielded solely by the supreme sovereign arm of the State. Said chapter 4684, laws of 1899,. entitled “an act to provide for and encourage the organization of a corps of volunteer militia for service as a land force,” &e., provides that there shall be organized in this State, for service as a land forre, a body of militia composed of such able-bodied males between the ages of eighteen andi forty-five, that are citizens of the United States, as may volunteer and take the oath of enlistment. It provides further that the applicant for enlistment shall be physically examined and shall take an oath of enlistment, and the certificate of physical fitness and oath of enlistment shall be forwarded promptly to the Adjutant General by the commander of the organization in which the applicant enlists. It provides further that the body of the militia thus enlisting shall be known as the “Florida State Troops,” and shall be the first to be called into service by ^he Commander-in-Chief to preserve the — 630 — .public peace, to execute the laws of this State, to suppress insurrection or to repel invasions, and shall be the first troops subject to any call of the President of the United States for the militia to execute the laws of the Union, suppress insurrections and repel invasions. Section 4 of the same act provides that the Governor shall be the ■commander-in-chief of such Florida State Troops, and 'shall appoint all commissioned officers thereof, including .an Adjutant General, and all officers so appointed shall hold office for four years. Section 40 of said act provides that the State troops, or any portion thereof, when called out to aid the civil authorities, shall be considered for the time being in actual service, and shall be governed by such articles, rules and regulations as may be promulgated by the Adjutant General for the government and discipline of the State troops. Section 42 of said act provides that "When an invasion of, or insurrection in, the State is made or threatened, or whenever there exists a riot, mob, unlawful assembly, breach of the peace, or resistance to the execution of the laws of the State, or imminent danger thereof, and the civil authorities are unable to suppress the same, it shall be the duty of the commander-in-chief, or in case he can not be reached and the emergency will not admit of awaiting his order's, if shall be the duty of the Adjutant General to issue an order to the officer in command of the nearest "body of State troops, commanding such officer to call out the trcops under his command, and to proceed with all possible promptness to suppress the same.” From this and the other provisions of law, statute and organic, referred to and quoted, it will be seen that the only duty or function that a body of State troops can be called upon, or are under any duty to perfornf, in any given — 631 — ■county, is dependent in such county upon the happening there of any of the extraordinary contingencies that justify resort to military force, and their duties and functions are not confined exclusively to the county where its individual members reside, but can be called into play in any other county of the State wherever the same contingency may arise. No body of the State militia, in other words, has any prescribed function or duty to perform exclusively in or for any particular county in the State, that it is not under equal obligation to perform in or for any other county of the State wherever the exigency may arise for its exercise. And whenever and wherever it is so called upon to act it is there as the representative of the State’s supreme sovereignty, and not as that of the ■county in which it acts. The place of residence of its individual members has nothing whatever to do with fixing its status either as a State or county institution. The conclusion reached is that the militia of the State, and every part thereof, is essentially and necessarily a State institution, or rather an arm of the State government, resort to which can only be had upon the failure of all other governmental authority; and that it can be, and should be, in the very nature of:, things, wielded only by . the supreme sovereign power of the State; that it is in no sense such a county institution or establishment as that any particular county can exclusively be either authorized or required to impose taxes for its, or any part of its, maintenance. It is essentially a State institution, taxation for the support and maintenance of whcib can be imposed only by the State, and when so imposed sueh taxation is required by, section 1 of Article IX of our constitution to be at a uniform and equal rate upon all the taxable property throughout the State, and can not — 632 — for such purpose be confined to or burdened upon the property in any one county to the exclusion of any or all of the other counties of the State. Hubbard v. Fitzsimmons, 57 Ohio St. 436, 49 N. E. Rep. 477; Wasson v. Commissioners, 49 Ohio St. 622, 32 N. E. Rep. 472; Sanborn v. Commissioners of Rice County, 9 Minn. 273; Taylor McBean & Co. v. Chandler, 9 Heisk. (Tenn.) 349; Stetson v. Kempton, 13 Mass. 272; Hutchinson v. Ozark Land Co. 57 Ark. 554, 22 S. W. Rep. 173; Board of Commissioners of Jackson County v. State ex rel. Shields, 155 Ind 604, 58 N. E. Rep. 1037. It follows from what has been said that section twentty-seven (27)- of Chapter 4684, laws enacted in 1899, imposingthe duty upon the board of county commissioners in each county in which there is a company or battery o,f State troops to provide each company or battery with an armory for its meetings and drills and the safe storage of its arms and equipments, violates the provisions of sections one and five of Article Nine of our constitution, and is, therefore, null and void. The judgment of the ..court below is hereby affirmed at the cost of the plaintiffs, in error.