employed to control his actions. Prohibition is a preventive, rather than a corrective, remedy. It issues to prevent the threatened commission of a future act, not to undo a completed act nor to review or nullify an act which has already been performed. However, in public questions of great importance and interest, the Supreme Court may retain jurisdiction, and in a proper case grant prohibition. Even though the Attorney General may have exercised quasi-judicial powers in the interpretation of the statutes, and it is appropriate to issue a writ of prohibition to control

Discussion Notes

1. In interpreting the Oklahoma Constitution does the court encounter a problem with "negative implication"? See p. 177, Discussion Notes 2 and 3.

2. Would an official be immune from liability if she acted in reliance on an opinion of the Attorney General? See Peter E. Heiser, Jr., "The Opin

the performance of judicial and quasi-judicial activities, we choose not to issue a writ of prohibition but rather determine the opinions to be invalid and of no effect.15

Original Jurisdiction Assumed. Attorney General's Opinions Nos. 79-311 and 79-313B Held To Be Invalid And of No Effect. Writ of Mandamus and Writ of Prohibition Denied.

15 Oklahoma Ass'n of Mun. Attys. v. State, 577 P.2d 1310, 1312 (Okl.1978).

ion Writing Function of Attorneys General," Idaho Law Review 18 (Winter 1982): 21 n. 36.

3. On the range of issues arising when state attorneys general interpret state constitutions, see Thomas R. Morris, "State Attorneys General As Interpreters of State Constitutions," Publius: The Journal of Federalism 17 (Winter 1987): 133.

In 1976 the Florida Legislature enacted the following statute:

222.19 Surviving spouse as head of family; defined

(1) It is the declared intention of the Legislature that the purpose of the constitutional exemption of the homestead is to shelter the family and the surviving spouse and such purpose should be carried out in a liberal spirit and in favor of those entitled to the exemption.

(2) The head of family status required to qualify the owner's property for homestead exemption, permitting such property to be exempt from forced sale under process of any court as set forth in Article 10, Section 4 of the Florida Constitution, shall inure to the benefit of the surviving tenant by the entirety or spouse of the owner. The acquisition of this status shall inure to the surviving spouse irrespective of the fact that there are not two persons living together as one family under the direction of one of them who is recognized as the head of the family. Chapter 76-36, Laws of Florida 1976.

Does the legislature have the power to make such a declaration?

In Greater Loretta Improvement Ass'n v. Boone, 234 So.2d 665, 669-70 (Fla. 1970), the Florida Supreme Court noted, with respect to a different legislative "interpretation" of the state constitution:

The situation then, as it presents itself in connection with our constitutional provision, is at least that by the decision of the courts of Florida and other jurisdictions the word "lottery" may have either of several meanings, and that either is reasonable and possible. In

such a situation, where a constitutional provision may well have either of several meanings, it is a fundamental rule of constitutional construction that, if the Legislature has by statute adopted one, its action in this respect is well-nigh, if not completely, controlling. As stated in Fargo v. Powers (D.C.), 220 F. 697, 709, it is said:

If the constitutional provisions in question are susceptible of two constructionsone being that contended for by complainants, the other that taken by the Legislature-the action of the Legislature in adopting one of those constructions and enacting a statute carrying it into effect, as thus construed, must be deemed conclusive. That rule is: "That the acts of a state Legislature are to be presumed constitutional until the contrary is shown; and it is only when they manifestly infringe some provision of the Constitution that they can be declared void for that reason. In case of doubt, every presumption, not clearly inconsistent with the language or subject-matter, is to be made in favor of the constitutionality of the act. The power of declaring laws unconstitutional should be exercised with extreme caution and never where serious doubt exists as to the conflict."

In Jasper v. Mease Manor, Inc. (Fla. 1968), 208 So.2d 821, this Court sustained a statute defining the word "charitable" as used in the Florida Constitution even though such definition conflicted with earlier decisions by this Court. Similarly, in Ammerman v. Markham (Fla. 1969), 222 So.2d 423, this Court upheld a legislative definition of the terms "real property" and "dwelling house" as used in the Constitution even

though such definitions were in conflict with earlier decisions of this Court.

Although the question of whether various transactions constitute lotteries have been considered by the Florida courts many times, the writer's search has revealed no decision holding a statute unconstitutional because it violates the provision of the Constitution prohibiting lotteries. None are cited in appellee's brief.

When the Legislature has once construed the Constitution, for the courts then to place a different construction upon it means that they must declare void the action of the Legislature. It is no small matter for one branch of the government to annul the formal exercise by another of power committed to the latter. The courts should not and must not annul, as contrary to the Constitution, a statute passed by the Legislature, unless it can be said of the statute that it positively and certainly is opposed to the Constitution. This is elementary.

Ammerman v. Markham 222 So.2d 423 (Fla. 1969)

ADKINS, Justice.

This is a direct appeal from the Circuit Court of Broward County which held that Ch. 67-339, Laws of Florida, is unconstitutional under the Fla.Const.1885 to the extent that it purports to grant homestead exemption to owners of condominiums and cooperative apartments beginning January 1, 1969.

Under Florida Statutes January 1st of the tax year is the date on which property is to be valued, the date on which the inchoate tax lien arises and the date on which certain facts must exist to entitle taxpayers to the various tax exemptions allowed by law.

Art. X, section 7, Fla.Const. 1885 contains the following provisions:

Every person who has the legal title or beneficial title in equity to real property in this state and who resides thereon and in good faith makes the same his or her permanent home, or the permanent home of another or others legally or naturally dependent upon said person, shall be entitled to an exemption from all taxation, except for assessments for

special benefits, up to the assessed valuation of Five Thousand Dollars on said home and contiguous real property, as defined in Article 10, Section 1, of the Constitution,... but no such exemption of more than Five Thousand Dollars shall be allowed to any one person or on any one dwelling house, nor shall the amount of the exemption allowed any person exceed the proportionate assessed valuation based on the interest owned by such person. The Legislature may prescribe appropriate and reasonable laws regulating the manner of establishing the right to said exemption. (Emphasis added.)

Sec. 6, Art. X, Fla.Const.1885 provides that the Legislature shall enact such laws as may be necessary to enforce the provisions of the article relating to homestead and exemptions.

Ch. 67-339 amended Fla.Stat., sections 192.12 and 192.13, F.S.A. so as to provide homestead tax exemption to each owner-occupied condominium parcel and on each apartment occupied by a tenant-stockholder or member of a cooperative apartment corporation.... Sec. 3, of Ch. 67-339, provides as follows:

This act shall take effect on the first January 1st, after the house joint resolution amending section 7 of Article X of the constitution of Florida, which grants a homestead exemption up to five thousand dollars ($5,000.00) on each owner-occupied condominium parcel and on each apartment occupied by tenant-stockholder or member in the building owned by a cooperative apartment corporation, is approved by a majority of the qualified electors voting in an election or after a revised constitution of Florida is approved by a majority of the qualified electors voting in an election, which grants a homestead exemption up to five thousand dollars ($5,000.00) on each owner-occupied condominium parcel and on each apartment occupied by tenant-stockholder or member in the building owned by a cooperative apartment corporation.

The revised Constitution of 1968, Art. VII, section 6 of which grants homestead tax exemption to the plaintiffs' class was approved "by a majority of the qualified electors voting in an election" which was held in November, 1968. The Fla.Const. 1968 became effective on January 7, 1969, six days after the exemption status of the property was determined, and, therefore, does not apply to this case.

The sole question is whether Ch. 67-339 could constitutionally extend the provisions of the Fla.Const.1885 to the owners of cooperative and condominium apartments.

Art. X, Section 7, Fla.Const.1885 extends the homestead exemption from taxation to every person who has the legal title or beneficial title in equity to real property in this State, under the conditions specified therein.

At common law the term "real property" was deemed coextensive with lands, tenements, and hereditaments, corporeal and incorporeal. See Thompson on Real Property (1964), Vol. 1, Section 22, p. 93. The meaning and application of the term "real property" are generally declared by statute, and the term may be defined in different statutes or for different purposes. See 73 C.J.S. Property section 2, p. 152. For example, Fla.Stat., Section 421.03(12), F.S.A. defines "real property" for the purposes of the housing authorities law; Fla.Stat., Section 475.01(11), F.S.A. defines "real property" for the purposes of the real estate license law; Fla. Stat., Section 713.01(14), F.S.A. defines "real property" for the purposes of the mechanics lien law. These definitions vary, because the statutory definitions usually apply only to the term as used in the particular statutory provision.

In Overstreet v. Tubin, (Fla.1951), 53 So.2d 913, this Court defined "dwelling house" as used in the Fla.Const.1885 as "the whole structure of a multiple dwelling house, rather than each separate unit. . . ." This decision dealt with a duplex and granted the resident of each side a $2,500.00 homestead exemption.

99

In Gautier v. State ex rel. Safra (Fla.App.1961), 127 So.2d 683, the Third District Court of Appeal held that the definition of "dwelling house" set by this Court in Overstreet v. Tubin, supra, also applied to multi-unit condominiums.

The Legislature by enacting Ch. 67-339 intended to and did include cooperative and condominium apartments within the meaning of the terms "real property" and "dwelling house," as used in the Constitution.

In Jasper v. Mease Manor, Inc. (Fla.1968), 208 So.2d 821, the Court considered a statute defining the word "charitable" as used in Fla.Const.1885, Art. IX, Section 1, limiting tax exemption statutes to those

Discussion Notes

1. How common is it for state legislatures to "interpret" the state constitution?

2. Do the Florida cases provide a reasonable test for evaluating the constitutionality of state

properties used for “municipal, education, literary, scientific, religious or charitable purposes." The statute in question included within the exemption homes operated for aged persons without regard to such persons' financial dependence or independence. Earlier definitions by the Court of the word "charitable" as used in the Constitution were more limited. This Court, in sustaining the validity of the legislative act extending the definition, said:

The test for measuring such legislation against the constitutional restraints must be that of reasonable relationship between the specifically described exemption and one of the purposes which the Constitution requires to be served. The problem therefore differs significantly from that which has been presented in cases requiring judicial definition of the constitutional concepts in the absence of an explicit statute. Application in those cases of a more limited definition of charitable use, in the primary sense of relief for the indigent or helpless, does not require or justify rejection of the current statute on constitutional grounds. (Emphasis added.)

The framers of the Fla.Const. of 1885 had no concept of the condominium ownership of property. The Legislature modified the frozen common law concept of real property ownership and, in 1963, enacted a Condominium Act defining a condominium parcel as "a separate parcel of real property, the ownership of which may be in fee simple, or any other estate in real property recognized by law." See Fla.Stat., Section 711.04(1), F.S.A. Moreover, the Legislature has recognized the owners of condominium parcels and cooperative apartments as freeholders. Fla.Stat., Section 97.021(7), F.S.A.

This legislative approval of individual ownership of units in a multiple-dwelling structure bears a reasonable relationship to the purposes of Art. X, Section 7, Fla.Const. 1885. Ch. 67-339 is a valid legislative definition of "real property" and "dwelling house," as used in the Constitution, so as to extend homestead tax exemption benefits to owners of condominium and cooperative apartments beginning January 1, 1969.

legislative "interpretations" of the state constitution?

3. Is this an exception to the standard opinion that state legislatures cannot "overrule" the courts' interpretations of the state constitution?