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The appeal herein is from the following decree of the Circuit Court:
"Heretofore this Court entered an order awarding a temporary injunction restraining the holding of the election as called by the Board of County Commissioners under and pursuant to the terms of Chapter 14217. Thereafter, F. W. Ditto and certain other citizens undertook to intervene, and were permitted to file an answer in this cause, and they having filed an answer and demurrer, the complainants moved to strike the same upon several grounds, and upon consideration thereof by the order and decree of this Court of date September 20th, 1929, the said answer was stricken, and the said demurrer was overruled and denied. And the complainants by their counsel, and defendants, Board of County Commissioners and the Clerk, by their counsel, having agreed that the decision of this Court granting a temporary injunction, and later striking the answer of the interveners and denying the motion to dissolve the injunction, amounts to a final termination of the cause, and that there is no matter of fact involved in it which makes it necessary to have a reference, and that the Court shall proceed to enter final decree upon the bill and answer, and the parties now being present in Court,
and the matter having been submitted on bill and answer, —
"It is therefore Ordered, Adjudged and Decreed:
"1. That the equities of this cause are with the complainants, and that the Act of the Legislature aforesaid is unconstitutional and void.
"2. That the defendants be and they are perpetually restrained and enjoined from holding the election under and pursuant to the terms of the Act of the Legislature aforesaid.
"3. That the Act of the Legislature aforesaid being unconstitutional and void, the Board of County Commissioners and the Clerk of the Court aforesaid, are directed and required to advertise and sell the bonds remaining unsold, as in their judgment is proper, and at such time as they find proper, to sell the same when a suitable market therefor can be had as if the Act of the Legislature aforesaid had not been passed."
The question to be determined is whether the evidence that the due publication of the required notice of the proposed local law was "established in the legislature" in the manner specifically prescribed by the constitution.
The courts have no substantive power to nullify duly authenticated legislative enactments. But in justiciable cases courts of competent jurisdiction may adjudicate that in the process of its enactment or in its provisions or in its effect or operation, a legislative enactment is in conflict with some express or implied provision of the State Constitution or with the dominant Federal authority within its sphere, and that as a consequence the enactment is inoperative either in whole or in part or as applied to the particular case. The constitution requires each House of the Legislature to keep a journal of its proceedings, and also mandatorily requires that in stated legislative proceedings
designated action shall be taken and that particular matters shall be entered upon the journal. This authorizes the courts in appropriate litigated cases to examine the legislative journals and to determine therefrom whether, in the enactment of a duly challenged statute, the constitution was complied with as to the matters required by the Constitution to be entered upon the journals. If in a justiciable case it be duly shown by the journal of either house of the Legislature that a bill was not read as required by the Constitution, or that the vote on final passage was not taken by yeas and nays and entered on the journal, or that a quorum was not present or that a majority of the members present (at least a quorum being present) did not vote for the passage of a bill, or that two-thirds of the members present (a majority of all the members being present) did not pass a bill vetoed by the Governor, or that two-thirds of the members elected to each House did not vote for the passage of the classes of bills referred to in Sec. 11, Article XVI, or that the requirements as to giving notice of proposed or special laws werenot complied with, or could not have been complied with as in Horton v. Kyle, 81 Fla. 274, 88 So. R. 757, or that the bill authenticated as a law is not the bill that was passed, State ex rel. Boyd v. Deal, 24 Fla. 293, 4 So. R. 899; Gwynn v. Hardee, 92 Fla. 543, 110 So. R. 343; or was passed without an enacting clause, In Re Advisory Opinion to Governor, 43 Fla. 305, 31 So. R. 348, and perhaps in other instances, the courts may examine the journals or other duly authorized and controlling records to determine therefrom whether the affirmative requirements of the Constitution as prerequisites to the introduction of a legislative bill or as to essential steps to be taken by the legislature in enacting a law, were duly complied with; and if not complied
with to so adjudicate, whereupon an enactment duly adjudged to have been not duly introduced or not duly passed, or to violate superior law, will be inoperative by the vital force of the Constitution.
When an enactment, though duly introduced and passed, contains provisions that violate paramount law, as by containing subjects forbidden by the Constitution, Secs. 16 and 30, Article III, In Re Executive Communication Relative to Appropriation Bill, 14 Fla. 283, 285, or by containing provisions that violate or conflict with the Constitution or with dominant Federal authority, the courts may in proper cases adjudicate such conflict with the paramount law, and the enactment will be inoperative to the extent of the conflict, whether it be the whole or a severable part of the enactment or only as the enactment is applied to the case being litigated, for a statute may be valid in part or may be validly applied in one case and not in a case of a different nature or consequence.
Article II of the Constitution provides:
"The powers of the government of the State of Florida, shall be divided into three departments; Legislative, Executive and Judicial; and no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by this Constitution."
The judicial department is not given a substantive power to review and to approve or disapprove a decision of the legislative department that it may exercise a particular governmental power or that such power may be exercised in a particular manner; but in adjudicating rights in a justiciable case a court of competent jurisdiction may determine, in so far as the rights being
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The appeal herein is from the following decree of the Circuit Court:
"Heretofore this Court entered an order awarding a temporary injunction restraining the holding of the election as called by the Board of County Commissioners under and pursuant to the terms of Chapter 14217. Thereafter, F. W. Ditto and certain other citizens undertook to intervene, and were permitted to file an answer in this cause, and they having filed an answer and demurrer, the complainants moved to strike the same upon several grounds, and upon consideration thereof by the order and decree of this Court of date September 20th, 1929, the said answer was stricken, and the said demurrer was overruled and denied. And the complainants by their counsel, and defendants, Board of County Commissioners and the Clerk, by their counsel, having agreed that the decision of this Court granting a temporary injunction, and later striking the answer of the interveners and denying the motion to dissolve the injunction, amounts to a final termination of the cause, and that there is no matter of fact involved in it which makes it necessary to have a reference, and that the Court shall proceed to enter final decree upon the bill and answer, and the parties now being present in Court,
and the matter having been submitted on bill and answer, —
"It is therefore Ordered, Adjudged and Decreed:
"1. That the equities of this cause are with the complainants, and that the Act of the Legislature aforesaid is unconstitutional and void.
"2. That the defendants be and they are perpetually restrained and enjoined from holding the election under and pursuant to the terms of the Act of the Legislature aforesaid.
"3. That the Act of the Legislature aforesaid being unconstitutional and void, the Board of County Commissioners and the Clerk of the Court aforesaid, are directed and required to advertise and sell the bonds remaining unsold, as in their judgment is proper, and at such time as they find proper, to sell the same when a suitable market therefor can be had as if the Act of the Legislature aforesaid had not been passed."
The question to be determined is whether the evidence that the due publication of the required notice of the proposed local law was "established in the legislature" in the manner specifically prescribed by the constitution.
The courts have no substantive power to nullify duly authenticated legislative enactments. But in justiciable cases courts of competent jurisdiction may adjudicate that in the process of its enactment or in its provisions or in its effect or operation, a legislative enactment is in conflict with some express or implied provision of the State Constitution or with the dominant Federal authority within its sphere, and that as a consequence the enactment is inoperative either in whole or in part or as applied to the particular case. The constitution requires each House of the Legislature to keep a journal of its proceedings, and also mandatorily requires that in stated legislative proceedings
designated action shall be taken and that particular matters shall be entered upon the journal. This authorizes the courts in appropriate litigated cases to examine the legislative journals and to determine therefrom whether, in the enactment of a duly challenged statute, the constitution was complied with as to the matters required by the Constitution to be entered upon the journals. If in a justiciable case it be duly shown by the journal of either house of the Legislature that a bill was not read as required by the Constitution, or that the vote on final passage was not taken by yeas and nays and entered on the journal, or that a quorum was not present or that a majority of the members present (at least a quorum being present) did not vote for the passage of a bill, or that two-thirds of the members present (a majority of all the members being present) did not pass a bill vetoed by the Governor, or that two-thirds of the members elected to each House did not vote for the passage of the classes of bills referred to in Sec. 11, Article XVI, or that the requirements as to giving notice of proposed or special laws werenot complied with, or could not have been complied with as in Horton v. Kyle, 81 Fla. 274, 88 So. R. 757, or that the bill authenticated as a law is not the bill that was passed, State ex rel. Boyd v. Deal, 24 Fla. 293, 4 So. R. 899; Gwynn v. Hardee, 92 Fla. 543, 110 So. R. 343; or was passed without an enacting clause, In Re Advisory Opinion to Governor, 43 Fla. 305, 31 So. R. 348, and perhaps in other instances, the courts may examine the journals or other duly authorized and controlling records to determine therefrom whether the affirmative requirements of the Constitution as prerequisites to the introduction of a legislative bill or as to essential steps to be taken by the legislature in enacting a law, were duly complied with; and if not complied
with to so adjudicate, whereupon an enactment duly adjudged to have been not duly introduced or not duly passed, or to violate superior law, will be inoperative by the vital force of the Constitution.
When an enactment, though duly introduced and passed, contains provisions that violate paramount law, as by containing subjects forbidden by the Constitution, Secs. 16 and 30, Article III, In Re Executive Communication Relative to Appropriation Bill, 14 Fla. 283, 285, or by containing provisions that violate or conflict with the Constitution or with dominant Federal authority, the courts may in proper cases adjudicate such conflict with the paramount law, and the enactment will be inoperative to the extent of the conflict, whether it be the whole or a severable part of the enactment or only as the enactment is applied to the case being litigated, for a statute may be valid in part or may be validly applied in one case and not in a case of a different nature or consequence.
Article II of the Constitution provides:
"The powers of the government of the State of Florida, shall be divided into three departments; Legislative, Executive and Judicial; and no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by this Constitution."
The judicial department is not given a substantive power to review and to approve or disapprove a decision of the legislative department that it may exercise a particular governmental power or that such power may be exercised in a particular manner; but in adjudicating rights in a justiciable case a court of competent jurisdiction may determine, in so far as the rights being
adjudicated are involved, whether a power that has been exercised by the legislative department as it affects the particular case, properly appertained to that department or whether the power if properly appertaining to the department was exerted in the manner required by the Constitution, when the matter may be determined by reference to the State Constitution or to the dominant Federal law if applicable, or when the matter may be determined by reference to a record provided for or contemplated by the Constitution for that purpose imports verity and is identified or designated by the Constitution or under constitutional authority and that is of equal or superior legal force to the action that is challenged. See Ewing v. Trenton, 57 N.J.L. 318.
The organic provision that when a bill is enacted in the manner prescribed and is signed by the Governor or passed over his objections in the manner prescribed, "it shall become a law," contemplates an enactment in the manner commanded and within the limitations fixed by the Constitution, and that the provisions of the enactment shall not in terms or in its application violate any provision of fundamental law. When a statute is duly authenticated its due enactment is assumed by the courts whose province it is to interpret and apply the statute, if its provisions accord with controlling organic law. The courts have no power to review the proceedings of the Legislature in enacting a statute, for the purpose of determining its due enactment, unless the Constitution shows an intent that the courts shall exercise such power in litigated cases, as by making the validity of the enactment depend upon defined facts that are required to be evidenced by a record or file that is expressly designated by the Constitution or under its authority and importing verity as it affects the validity of a duly authenticated statutory enactment.
Original Section 21, Article III, Constitution of 1885, provides that:
"No local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or the thing to be effected may be situated, which notice shall state the substance of the contemplating law, and shall be published at least sixty days prior to the introduction, into the Legislature of such bill, and in the manner to be provided by law. The evidence that such notice has been published shall be established in the Legislature before such bill shall be passed."
Chapter 3708, Acts of 1887, Sections 94-5, Comp. Gen. Laws, 1927, provided for publishing and for proof by affidavit of the publication of notices of proposed local or special laws, and required the notice to "contain a short statement of the object desired by said special or local legislation." The statute did not require the affidavit of proof of publication to be entered upon the legislative journal or to be filed or recorded or preserved; and the requirement of Section 21, Article IV, that the Secretary of State "shall keep the records of official acts of the Legislature," and the provision of Chapter 1904, Acts 1872, Section 116, Comp. Gen. Laws 1927, that "all original acts and resolutions passed by the Legislature and all other original papers acted upon thereby together with the journals" shall be preserved in the office of the Secretary of State, did not require the proof of publication of notice to be entered upon the journal and did not identify or designate the record or file in which the proof of publication of notice of proposed local or special laws, should be made or kept so that the matter would not be at large and the courts could refer to the record pointed out
by the Constitution or by a statute under constitutional authority, therefore the courts were not authorized to enquire whether such proof of publication of notice was "established in the legislature" as required by the Constitution, the command being addressed to the Legislature and no definite specific record was required by the Constitution or under constitutional authority to be made of such proof of publication, so that in justiciable cases the courts could upon an inspection of such identified record importing verity, determine whether the requirements of the Constitution were complied with. See Stockton v. Powell, 29 Fla. 1, text 58, 10 So. R. 688; Rushton v. State, 58 Fla. 94, 50 So. R. 486; Vann v. State, 65 Fla. 160, 61 So. R. 323; State ex rel. Buford v. Fearnside, 87 Fla. 349, 100 So. R. 256; Jackson Lumber Co. v. Walton County,95 Fla. 632, 116 So. R. 771; Whitney v. Hillsborough County decided at this term.
Section 21, Article III, as amended in 1928, House Joint Resolution No. 3, page 1597, Acts 1927, requires publication of notice of proposed special or local legislation and provides that:
"The evidence that such notice has been published shall be established in the Legislature before such bill shall be passed by having affidavit of proof of publication attached to the proposed bill when the same is introduced in either branch of the Legislature, and which such affidavit constituting proof of publication shall be entered in full upon the journals of the Senate and of the House of Representatives, which entries shall immediately follow the journal entry showing the introduction of the bill."
Chapter 13791 prescribes the method of publication and of proof of publication of notice of proposed local or
special legislation under the amended organic section and provides that the
"affidavit of proof of publication shall be attched to the contemplated law when it is introduced into the Legislature, and shall be entered in full upon the Journals of the House and Senate, as the case may be, immediately following the entry in the Journal showing the introduction of the bill. A true copy of the notice published or posted shall also be attached to the bill when introduced, but it shall not be necessary to enter the same in the Journal, but same together with affidavit of proof of publication shall accompany the bill through the Legislature and be preserved as a part thereof in the office of the Secretary of State."
In this case the journal entries as to the introduction of the local bill and of the affidavit of proof of publication and the determination of the Senate thereon are as follows:
"By Senator Gary —
"Senate Bill No. 636:
"A bill to be entitled an Act relating to the authority of the Board of County Commissioners of Marion County, Florida, to issue and sell the unsold portion of the four million five hundred and fifty thousand dollars ($4,550,000.00) of authorized County of Marion Highway Bonds; providing for the cancellation and abrogation of the authority of said Board of County Commissioners to issue and sell one-half of the one million dollars ($1,000,000.00) unissued and unsold portion of said bonds; providing for the submission to the qualified electors, who are freeholders in said Marion County, Florida, of the question of whether or
not the authority of the Board of County Commissioners of Marion County, Florida, to issue and sell the other one-half of the unsold portion of said bonds, shall be abrogated and rescinded; and providing for a special election to be held, to determine such election and prescribe the effect thereof.
"Which bill was read the first time by its title, and had attached to same when introduced in the Senate the following proof of publication which was ordered to be entered in full upon the Journal of the Senate:
"AFFIDAVIT OF PROOF OF PUBLICATION
"State of Florida,
"County of Marion.
"Before the undersigned authority personally appeared H. D. Leavengood, who on oath does solemnly swear (or affirm) that he has knowledge of the matters stated herein; that a notice stating the substance of a contemplated law or proposed bill relating to the authority of the Board of County Commissioners of Marion County, Florida, to issue and sell the unsold portion of the four million five hundred and fifty thousand dollars of authorized County of Marion Highway Bonds, has been published at least thirty days prior to this date, by being printed in the issue of April 16, 1929, of the Ocala Evening Star, a newspaper or newspapers published in Marion County, Florida; that a copy of the notice that has been published as aforesaid and also this affidavit of proof of publication are attached to the proposed bill or contemplated law, and such copy of the notice so attached is by reference made a part of this affidavit.
"(Signed) H. D. LEAVENGOOD.
"Sworn to and subscribed before me this 16th day of April, 1929.
"(SEAL)
"(Signed) MRS. J. H. GOOD,
"Notary Public, State of Florida.
"My Commission Expires February 15, 1930.
"And the Senate thereupon determined that the evidence that said bill has been published in compliance with Section 21 of Article III of the Constitution has been established in this Legislature."
The affidavit of proof of publication of notice as entered on the Senate journal immediately following the journal entry as to the introduction of the local bill, states that "a notice stating the substance of a contemplated law or proposed bill relating to the authority * to issue and sell the unsold portion of the four million five hundred and fifty thousand dollars of authorized County of Marion Highway Bonds, has been published at least thirty days *; that a copy of the notice *, attached to the proposed bill or contemplated law * is by reference made a part of this affidavit." The copy of the notice attached to the bill is as follows:
"NOTICE OF SPECIAL LEGISLATION
"Notice is hereby given to the citizens of Marion County, Florida, that the Legislature of the State of Florida, at its 1929 session, will be requested to enact a law requiring the Board of County Commissioners of Marion County, Florida, to refrain from offering for sale one million dollars par value of Marion County Road Bonds remaining unsold and undelivered of the $4,500,000 issue of Road Bonds of said county voted in the year 1925 upon the ratification of such law by
a majority of the qualified freeholders of said county, to be ascertained in an election to be called and submitted as shall be provided in said law, and upon the ratification of such law as aforesaid, that said Board of County Commissioners shall take appropriate legal action to rescind and abrogate said bonds.
"Marion County Taxpayers League.
"By J. E. Baxter, President."
The title of the local bill as introduced, substantially states the subject of the local law as enacted, and the "affidavit of proof of publication" entered on the Senate Journal "states the substance of the contemplated law," in that the affidavit proves the publication of a notice of a contemplated law or proposed bill "relating to the authority of the Board * * * to issue and sell the unsold portion of the * * * bonds," and the bill as passed "relates to the authority of the Board * * * to issue and sell the unsold portion of the * * * bonds." The bill as enacted contains provisions for the cancellation and abrogation of authority to issue and sell one half of the unsold portion of the bonds and for submission to electors of the county the question whether authority of the board to issue and sell the other one half of the unsold portion of the bonds shall be abrogated and rescinded; but such latter provisions so contained in the bill are matters properly connected with and "relate to the authority of the board * * * to issue and sell the unsold portion of the * * * bonds," therefore the "affidavit of proof of publication" sufficiently evidences the due publication of a notice stating "the substance of the contemplated law," as required by the Constitution.
The above quoted copy of the notice published that is "attached to the bill" and "preserved as a part thereof" as required by the statute, contains notice of a request
to enact a law requiring the board to refrain from offering for sale the remaining unsold bonds, upon the ratification of such law at an election to be called for that purpose. The contents of such copy of the notice are not so materially at variance from the affidavit of proof of publication of notice that is "entered in full upon the journal" of the Senate, as to have been misleading to the public of the county affected by the local law; and even if such copy of the notice attached to the bill and preserved as a part thereof, does not in effect "state the substance of the contemplated law" precisely as it is stated in the "affidavit of proof of publication" that is duly entered on the journal, such copy of notice so attached to the bill relates to the subject of the local bill and does not render ineffectual the determination of the Senate entered on its journal "that the evidence that said bill has been published in compliance with section 21 of Article III of the Constitution has been established in this Legislature." Besides this the bill as enacted contains a provision that:
"It is hereby found and determined by the Legislature that due and legal notice of intention to apply for the passage of this Act was published in the Ocala Evening Star, a newspaper published in Marion County, Florida, which notice was published in the issue of said newspaper dated April 16th, 1929, which notice the Legislature finds and determines was in compliance with Section 21 of Article III of the Constitution of the State of Florida as amended at the General Election in 1928."
Such determination by the Legislature is sustained by the Senate Journal entry of the "affidavit of proof of publication" of the notice containing a statement of "the substance of the contemplated law," (see Keene v. Lake
County, 125 So. R. 908) and by the subject matter and substance of the bill as enacted, and such legislative determination so sustained, is conclusive on the question of compliance with the provisions of Section 21 of Article III of the Constitution relative to the publication of notice of proposed special or local laws.
The Court being evenly divided in applying the principles announced herein to the contents of the proof of publication of notice, the decree of the chancellor holding the notice inadequate to sustain the act as a valid law is affirmed.
TERRELL, C. J., concurs.
ELLIS, STRUM AND BUFORD concur in part and dissent in part.
BROWN, J., dissents.