Can the Right to Declare An Act Unconstitutional Be Exercised by Officers of the Executive Department ?
In Barr v. Watts, 70 So. 2d 347, 350-51 (Fla. 1953), the petitioner filed a proceeding in mandamus to compel the State Board of Law Examiners to allow her to take the bar exam, pursuant to an applicable statute.
In its answer, the board asserted that the statute cited by Barr was "invalid as special and discriminatory legislation." Barr, 70 So. 2d at 348.
The Court held that the board did not have standing to defensively attack the constitutionality of the statute. In doing so, the rationale for the general rule from Atlantic Coast Line was reaffirmed.
In Barr, this Court wrote:
Under the circumstances, we do not feel bound by the dictum in the cited cases relied on by respondents, and re-affirm the rule of State ex rel. Atlantic Coast Line Railroad Co. v. State Board of Equalizers, supra, that is, that the "right to declare an act unconstitutional . . . cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution."
And, indeed, the chaos and confusion which would result from the application of such a rule would be immediately apparent.
We now have in this state to carry on the state's business almost 100 state agencies, boards and commissions, most of whose members hold office by virtue of executive appointment.
The people of this state have the right to expect that each and every such state agency will promptly carry out and put into effect the will of the people as expressed in the legislative acts of their duly elected representatives.
The state's business cannot come to a stand-still while the validity of any particular statute is contested by the very board or agency charged with the responsibility of administering it and to whom the people must look for such administration.
As indicated above, there is, of course, an exception to this rule--and that is, when the public may be affected in a very important particular, its pocketbook.
In such case, the necessity of protecting the public funds is of paramount importance, and the rule denying to ministerial officers the right to question the validity of the Act must give way to a matter of more urgent and vital public interest.
But in the absence of such controlling public necessity, we think that the public interest will be best served by channeling all such attacks on the validity of statutes through the duly-elected public officer whose duty it is to protect the public interest in this respect--the Attorney General of this state. State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (Fla. 1930), and cases therein cited. Barr, 70 So. 2d 347 at 350-51.