Number:
INFORMAL
Issued
The Honorable Stephen R. Wise
Senator, District 6
3520-2 Blanding Boulevard
Jacksonville, Florida 32210-5253
Dear Senator Wise:
You ask whether additional school districts may be created within a charter county.
Based upon the following discussion, I am of the opinion that absent a constitutional amendment to Article IX, section 4, Florida Constitution, additional school districts may not be created within a county.
Article IX, section 4(a), Florida Constitution, provides:
"Each county shall constitute a school district; provided, two or more contiguous counties, upon vote of the electors of each county pursuant to law, may be combined into one school district. In each school district there shall be a school board composed of five or more members chosen by vote of the electors in a nonpartisan election for appropriately staggered terms of four years, as provided by law." (e.s.)
The word "shall," according to its normal usage, has a mandatory connotation.[1] Thus, the only exception recognized by the Constitution from the mandate that a county constitutes a school district is for two or more contiguous counties to form a single school district. No provision is made for the division of a county into multiple school districts. It is an established principle that if the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner.[2]
Thus, the county, regardless of whether a charter or noncharter county,[3] and the school district are bound by the provisions of the Constitution and in the absence of a constitutional amendment authorizing the same, may not create additional school districts within a single county.[4]
I hope that the above informal comments may be of assistance.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/tjw
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[1] See, e.g., Drury v. Harding, 461 So. 2d 104 (Fla. 1984); Holloway v. State, 342 So. 2d 966 (Fla. 1977); Concerned Citizens of Putnam County for Responsible Government, Inc. v. St. Johns River Water Management District, 622 So. 2d 520 (Fla. 5th DCA 1993) (although not fixed construction of word "shall," it is normally meant to be mandatory in nature); State, Department of Education. v. Glasser, 622 So. 2d 1003 (Fla. 2d DCA 1992). And see State ex rel. McKay v. Keller, 191 So. 542 (Fla. 1939); Mugge v. Warnell Lumber & Veneer Company, 50 So. 645 (Fla. 1909) (established rules of construction applicable to statutes apply also to the construction of Constitutions).
[2] See Weinberger v. Board of Public Instruction of St. Johns County, 112 So. 253 (Fla. 1927); In re Advisory Opinion of Governor Civil Rights, 306 So. 2d 520 (Fla. 1975); Op. Atty. Gen. Fla. 84-20 (1984).
[3] See Art. VIII, s. 1(g), Fla. Const., which provides that counties operating under a charter shall have all powers not inconsistent with general law, or with special law approved by vote of the electors.
[4] I would note that the Legislature in s. 30, Ch. 69-216, Laws of Florida, amended s. 230.23(11)(d), Fla. Stat. (1967), which authorized the creation of elementary or high school tax areas within a school district. The statute, as amended, prescribed a procedure whereby a district school board in certain counties could create tax areas within the district for the purpose of funding capital projects within the area. See Op. Att'y Gen. Fla. 69-95 (1969). This provision was subsequently repealed by s. 33, Ch. 72-221, Laws of Florida.