The opinion
Brown, J.
(concurring). — As stated in the opinion of Mr. Chief Justice Terrell, Section 1 of Chapter 16170 is nothing more than a broad declaration of policy. It does not of itself purport to delegate any authority. However, Section 2 of said Act provides that the State Board of Education shall have power to fix and determine a maximum salary scale to be paid to teachers, and Section 3 provides that:
“The State Board of Education in addition to such general power of supervision as is now provided by law, and without limiting the same, shall have the following several additional specific powers and duties,” — which is followed by seven paragraphs, designated by the letters
“A”
to “G,” respectively. One of these paragraphs, paragraph “E,” is as follows:
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“To fix and enforce standards of maximum costs, minimum requirements of equipment, qualifications of drivers, distance traveled and pupil-miles per bus in the transportation of school children.”
It will be noted that said paragraph “E” does not delegate to the State Board of Education the power to select or appoint bus drivers, but we have already held that this power can be exercised by the .county boards of public instruction.
The case of Board of Public Instruction v. Kennedy, 109 Fla. 153 , 147 So. 250 , was one involving the liability of the County Board of Public Instruction of Okaloosa County, in an action at law by Kennedy, a bus driver, for a balance due for services rendered by him under contract with said board. This Court held that the county board of public instruction had authority to contract for such services, and if such contract was breached and payment not made therefor as agreed, an action at law would lie against such county board. In that case Mr. Chief Justice Davis, speaking for the Court, said:
“A board of public instruction created under the laws of the State of Florida has the right, within the limits of its statutory authority, to contract with teachers and other persons, for the rendition of personal services required to be utilized in and about the operation or maintenance of the public schools,
when appropriate to carry out the plan or system provided for by law.
And in the event any lawfully made contract for personal services is breached, or the services rendered under it are not paid for as agreed, an action at law therefor will lie against the board, and judgment on the cause of action that has accrued may be rendered against it, as in the case of other public bodies corporate, which may become liable to judgment in an action
ex contractu.”
(Emphasis supplied.)
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So the main question involved in this case, as I see it, i. e., the power of the board of public instruction to select or appoint bus drivers, as an incident to the maintenance of the public school system in the county, has already been settled by this Court. That power carries with it the responsibility and duty of making a wise and prudent selection. Therefore the county board is not bound to appoint any and all bus drivers who may be recommended by the county superintendent of public insrtuction.
The rule, quoted in the majority opinion, which was adopted by the State Board of Education, which gives the county superintendent of public instruction the power to recommend, is, I think, correctly construed in the foregoing opinion of Mr. Chief Justice Terrell, and is in line with our previous opinion and decision in the case of Board of Public Instruction of Okaloosa County v. Kennedy,
supra.
In this connection see also the opinion of Mr. Justice Buford in the case of Burnett v. Allen, 114 Fla. 489 , 154 So. 515 .