State Ex Rel. Cunningham v. Davis

166 So. 289, 123 Fla. 41

• Court: Supreme Court of Florida
• Decided: February 25, 1936
• Status: Published

Opinions

Davis, J.

Senate Bill No. 724 (now Chapter 16848, Acts of 1935, General Laws of Florida, is in controversy in this proceeding the complainant being (as set forth in the alternative writ of mandamus issued herein) that although the said bill duly “passed” the Senate and the House of Representatives on or before the legislative calendar day of May 31, 1935, that said bill was not, as required by Section 17 and 28 of Article III of the Constitution of Florida “signed by. the presiding officers of the respective Houses and by the secretary of the Senate and the clerk of the House of Representatives” nor “presentad to the Governor” until on or after the calendar day of June 1, 1935.

A motion to quash the alternative writ of mandamus has been heretofore overruled (but without opinion) on the authority of State, ex rel. Landis v. Thompson, 121 Fla. 561, 164 Sou. Rep. 192, decided November 14, 1935. By a return filed by the respondent ministerial officers of the Legislature the fact is admitted that the regular 1935 session of the Florida Legislature did not in fact adjourn sine die on the calendar day of May 31, 1935, as set forth on the face of its purported legislative journals of that day’s session; that on the contrary it continued its actual sitting as a legislative assembly much beyond that calendar day, indeed, into the calendar day of June 1, 1935, and afterward; that although all legislative action on said Senate Bill No. 724, up till and including its final passage as a legislative Act, occurred in the Legislature, on or before the calendar day of May 31, 1935, that nevertheless the Legislature’s enrollment of the bill as a “passed” bill, its formal authentication by the attaching to it of the signature of the presiding officers of the Senate and of the House of Representatives, the attestation of the Secretary of the Senate and of the Clerk of the House of Representatives and the actual presentation by the Legislature of the enrolled bill to the Governor for his consideration and approval, in purported compliance with Sections 17 and 28 of Article III of the State Constitution, did not in truth and in fact transpire or occur until on or after the calendar day of June 1, 1935.

So the proposition of constitutional law now required to be decided on the pleadings in this case is: “Did the 1935 regular session of the Florida Legislature, whose constitutional authority to legislate and ordinarily function as a law-making body admittedly expired at midnight on May 31,1935, according to Section 2 of Article III of the Florida Constitution, nevertheless, by virtue of the intendments of Sections 12, 17 and 28 of the same Article possess implied constitutional authority to remain undissolved as a legislative assembly until June 1, 1935, and afterward, in order to carry out its constitutional duty to make a proper journal of its proceedings already lawfully had during its sixty days term of existence, as well as to formally authenticate and present to the Governor all bills it had constitutionally passed during its regular session?” In other words, did the 1935 regular session of the Legislature retain authority to continue to sit unadjourned sine die on and after June 1, 1935, for a sufficient period of time to complete and approve, nunc pro tunc as of May 31, 1935, the journals of its regular legislative proceedings that required completion and approval, as well as to have its officers enroll, sign and cause to be presented to the Governor in constitutional form, any unauthenticated legislative Acts it may have constitutionally “passed” during its regular sixty days of legislative session ?

In State, ex rel. Landis, v. Thompson, 164 Sou. Rep. 192, supra, we definitely held that, on direct attack, this Court can inquire into whether the Legislature has attempted to exceed its jurisdiction as a Legislature by remaining in unadjourned session beyond its allotted constitutional number of days. And to that end this Court held that it would entertain appropriate judicial proceedings to determine whether that which purports to be a record of legislative action taken during a regular constitutional session of the Legislature, is, in truth and in fact, a record duly made' by the Legislature under such circumstances as to import to it a conclusive verity as such record, or is some other sort of.record not entitled to be judicially noticed as conclusive record evidence within the range of our judicial knowledge when brought to the Court’s attention. : We now reaffirm what was held in that case. And in so holding, we now proceed to the subordinate inquiry whether or not the particular relief in this case should be awarded in view of the showing made and admitted to be true on the face of the pleadings herein which establishes the fact that no law-making action with reference to Senate Bill No. 724 was taken after May 31, 1935, by the 1935 regular session Of the Legislature save and except'-to have the bill as already passed on or before May-31-, 1935, duly enrolled and signed on Saturday, June 1, 1935, by the legislative officers in the presence of the Legislature which still remained in actual session on that date for that purpose, as well as for the' purpose, of duly presenting (before it actually dissolved as a Legislature) the enrolled and authenticated bill to the Governor of the State for his approval or rejection in the manner contemplated by the constitutional provisions on the subject, to' which we have heretofore made reference. ", -

To decide this question we first consider and. discuss what was heretofore held by this Court in the cases of Amos v. Gunn, 84 Fla. 285, 94 Sou. Rep. 615, and State, ex rel.: Landis, v. Thompson, 121 Fla. 561, 164 Sou. Rep. 192.

In neither of the cited cases was any question of interpretation of the precise limitations imposed by Section 2 of Article III of the Constitution involved. The whole, scope of inquiry in the Amos v. Gunn case was whether or; not a legislative bill once duly passed by the Legislature during its allotted constitutional term of sixty days of law-; making session was required by Sections 17 and 28 of Article III of the Constitution to be subsequently enrolled and, signed by the legislative officers and presented to the Governor for his approval or rejection, while the Legislature, was still in undissolved session.,

And in that proceeding this Court originally (and on: rehearing) in perhaps the most able and exhaustive series of opinions ever written by Justices of this Court on a controverted proposition of constitutional legislative procedure, reviewed the authorities pro and con on the proposition whether or not a legislative bill duly passed by ‘the Legislature in constitutional session is likewise required tobe enrolled and authenticated by the legislative officers and by the Legislature presented to the Governor while the Legislature still sits as a legislative body for the performance of the act of authentication and presentation to the Governor in accordance with the commands of the Constitution.

In deciding that case, this Court (on rehearing) adopted, the opinion of Mr. Justice Ellis to the effect that:

“1st. The provision contained in Section 17, Article, III, of the Constitution requiring the presiding officers and, the clerks of each House of the Legislature to sign all bills and joint resolutions passed is mandatory.

“2nd. That such signing of bills and joint resolutions must be done in open session of the House over which the officer signing is then presiding and to which the clerk signing is attached.

“3rd. That no bill passed by the Legislature can become a law until it has been presented by the Legislature to the Governor.

“4th. That such presentation can be made by the Legislature only while in session.

“5th. That the enrolled bill on file with the Secretary of State showing upon its face to have been signed by the presiding officers of the two Houses and their respective clerks before the Legislature adjourned and to have been approved by the Governor is prima facie evidence that all mandatory provisions of the Constitution as to the requirements to be observed by the Legislature in the passage of the bill, signing by the officers and presentation to the Governor, have been complied with.

“6th. That such prima facie evidence may be overcome by reference to the journals of either house, which, if they affirmatively show such mandatory provisions were not complied with, the so called Act of the Legislature must fail.

“7th. That the approval by the Governor of a bill which has passed the Legislature, is a certification by him that the bill after its passage was presented to him while the Legislature was in session.

“8th. That the Governor’s approval of a bill passed by the Legislature constitutes an executive record which imparts the same verity, is as solemn and dignified an act and entitled to the same faith, credit and respect as the records of a court or those of the Legislature.

“9th. That the silence of the journals of the Legislature upon the question of whether the bill passed by the Legislature was signed by the presiding officers of the two Houses and their clerks does not overcome the prima facie evidence of regularity afforded by the enrolled bill on file with the Secretary of State, bearing upon its face the approval of the Governor and the signatures of the presiding officers of the two Houses of the Leigslature appearing to have been attached before the Legislature adjourned.”

To that opinion we still adhere and so holding, we here and now approve and reaffirm the principles of law that were therein set forth in the opinion of Mr. Justice Ellis as the views of a majority of this Court in the premises.

This brings us to the proposition whether or not the provisions of Section 2 of Article III confining the duration of a regular session of the Legislature to not exceeding sixty (consecutive) days, operates also as a constitutional limitation on the authority of the Legislature to formally sit unadjourned sine die for the purpose of authenticating and presenting to the Governor for his consideration and approval “bills” that may have been regularly passed during its sixty constitutional days of law-making session but the authentication and presentation of which to the Governor in accordance with Sections 17 and 28 of Article III of the Constitution it was not able to completely accomplish during the period of days comprehended within the limitation prescribed by Section 2 of Article III for the duration of its regular session.

The foregoing proposition is not concluded by anything that has been heretofore decided either in the case of Amos v. Gunn, supra, or in the case of State, ex rel. Landis, v. Thompson, supra.

In the Amos v. Gunn case the allegations of the pleadings showed that the legislative bill involved had been regularly passed during the sixty day regular session of the 1921 Legislature. But it was further alleged without any matter of record being referred to in support of such allegation that due to some inadvertence in- its handling thereafter, it was never enrolled, nor signed by the presiding officers and clerks of the two Houses in the presence of the Legislature before it actually dissolved, nor by the Legislature itself presented to the Governor for his approval. In consequence of such stated omission, it' was contended that the bill was "never constitutionally authenticated in the manner contemplated by the Constitution, nor properly presented to the Governor. By reason of such defaults it was thereupon asserted that the bill was undeniably void.

This Court, conceding that the bill would be unconstitutional if not signed by the presiding officers and by the clerks of the two Houses of the Legislature in the presence of the Legislature and by the Legislature presented to the Governor while the Legislature was still undissolved, nevertheless refused to strike the bill down, because of the showing that the bill was there being attacked collaterally in an injunction proceeding wherein the officials accused of the alleged acts of misconduct were not made parties, and further because of the conclusive presumption of proper authentication and presentation of the bill to the Governor that attached to the Governor’s signature to the enrolled bill when he signed it and placed it on file in the Secretary of State’s office.

In the State, ex rel. Landis, v. Thompson case the principal holding was that in a direct, not collateral proceeding, this Court would require to be judicially corrected any putative legislative record within- the range of judicial knowledge if on its face it appeared to have been made within constitutional authority during an authorized legis lative session, but was in truth and in fact not a genuine legislative record that it purported to be.

The rationale of that decision was that if the Legislature has no constitutional power to further legislate, or to further act as such with regard to any legislative proposition after its constitutional term of sixty days has run out, that then, by the same token, no mere record it may make of its non-constitutional sitting as a Legislature after it becomes functus officio can rise to any greater evidentiary dignity in the consideration of the courts than the unconi stitutional sitting itself could rise. Accordingly it was held that since the courts are bound under the law to take judicial notice of legislative records, but notice only of constitutionally made records of the Legislature, as importing absolute verity in their contents, they are necessarily invested with inherent power 'to use their appropriate judicial processes to expunge from the range- of their judicial observation in an appropriate case any purported legislative journal entries that were not made in contemplation of law as a record of what the Legislature did during a constitutionally authorized sitting as a legislative assembly.

So until the present case, no controversy has arisen, nor.' has any controversy been decided by this Court, involving the implied power of the Legislature to, in effect, “hold over” not under the direct authority of Section 2 of Article III of the Constitution, but under the implied authority of Sections 12, 17 and 28 of Article III aforesaid, for the purpose of executing its mandatory duty to carry out that which' the organic law in those sections requires to be made of record and put in due form as a duly approved authentication of all legislative acts that have been properly passed within the limitations of Section 2 of said Article III and other sections and articles of the Constitution.

Section 2 of Article III of the Constitution as construed and applied in our recent opinion in the case of State, ex rel. Landis, v. Thompson, 164 Sou. Rep. 192, supra, undoubtedly operated as a definite limitation on the authority of the 1935 regular session of the Legislature to remain in session for the purpose of transacting any legislative business or performing any law-making function, whatever its character after midnight on the day of May 31, 1935. This is so, because at that time the 1935 Legislature became functus officio as a law-making body and was no longer entitled under the Constitution to originate, consider, agree to, or vote upon any “bill” or resolution which at that time remained in the status of a mere legislative proposal.

But it does not follow from the rationale of that decision nor from anything implied in its holding, that the “days of session” limitations of Section 2 of Article III of the Constitution are to be construed and applied so as to defeat the Legislature’s performance of its mandatory duties under Sections 12, 17 and 28 of the same article to properly authenticate and make a record of all “bills” it may have already completely “passed” during the sixty days’ term of its constitutional existence as a law-making body. -

Sections 17 and 28 of Article III of the Constitution, as was held in Amos v. Gunn, 84 Fla. 295, 94. Sou. Rep. 615, supra, clearly contemplate that the specific duties imposed by such sections on the Legislature as such, shall be performed while the Legislature is still in actual session and undissolved as a legislative body. Indeed, it was definitely so held by a majority of this Court on the rehearing granted and had in that case. But there is nothing in that opinion nor is there anything contained in any other opinion of this Court, which implies that the Legislature’s obedience to Sections 17 and 28, or with Section 12 of said Article III of the Constitution, must be fully accomplished during the sixty days of lawmaking session authorized by Section 2 of Article III of the Constitution, so long as such compliance is had while the Legislature remains in actual session and undissolved as a parliamentary body for the purpose of fully completing the constitutional duties specifically imposed upon it to make a proper record of what it may have constitutionally done, as well as to constitutionally authenticate and thereupon present to the Governor all bills that it may have already constitutionally passed before its ordinary powers as a lawmaking body became functus officio under Section 2 of Article III at the end of the limited sixty days therein specified.

The constitutional duty of enrolling and signing a bill and thereupon presenting it to the Governor for his approval, is a duty that in the nature of things can only be carried out by the Legislature after such bill has been completely passed. Prior to final passage of a legislative bill no enrollment nor authentication of it as contemplated by Section 17 of Article III of the Constitution can be had. Nor can it be presented by the Legislature to the Governor in accordance with Section 28 of the same Article, because only a bill that has been duly “passed” and “signed by the presiding officers,” etc., of the Legislature after passage is authorized to be by the Governor received for his consideration. Thus, as it was stated in Amos v. Gunn, supra, “The Governor has no power to approve a document as a bill which has passed the Legislature unless it has been presented to him by that body with the signatures thereon of the presiding officers and clerks of the two Houses * * *” (84 Fla. text 344).

By the same course of reasoning, the Legislature has no constitutional authority to have a bill presented to the Gov ernor with the signatures thereon of the presiding officers and clerks of the two Houses, until after it has first been completely and irrevocably passed by it. Hence every legislative compliance with the constitutional requirement of authentication and presentation of bills “passed” is an act .that, in its very essence, is nothing more than the making: nunc pro time as of the date of passage, a proper constitutional record of that which has already been completely disposed of in limine by the legislative will. The performance of such acts is therefore not the exercise of any legislative prerogative that can be accomplished only during the .sixty days limited by Section 2 of Article III, but is the simple performance of. an implicit constitutional duty that devolves upon the Legislature at all events by reason of its .already exerted legislative prerogative whenever it has, been lawfully exercised in the form-of an affirmative vote passing the bill while the Legislature is in ordinary lawmaking session for the purpose.

Section 2 of Article III of the Constitution is unquestionably a constitutional limitation upon the time a regular session of the Legislature once' convened, may continue in actual session thereafter as a lawmaking body for the pur-’ pose of exercising its legislative prerogative of enacting laws. Such legislative prerogatives comprehend the introduction, consideration, and passage of bills and joint resolutions, the appointment of committees and the consideration and disposition of the reports thereof relating thereto' prior to the final passage, etc. But said Section 2 of Article III of the Constitution is not by any means a limita-: tion'that operates to restrain the Legislature from accomplishing full compliance with definitely imposed non discretionary legislative duties, as distinguished from the exercise of its prerogative lawmaking powers, even though; “holding over” unadjourned sine die may be required for that purpose beyond the specified number of days allotted by Section 2 of Article III of the Constitution for the exercise of lawmaking prerogatives.

The requirement imposed by Sections 12, 17 and 28 of Article III of the Constitution with reference to the keeping of proper legislative journals covering the last days of a session of the Legislature, as well as the earlier days, the requirement of seeing to it that all bills passed by it during its allotted sixty days are subsequently signed in open session in the presence of the two Houses, and thereafter, by the Legislature through its appropriate agencies constituted for that purpose (as distinguished from its mere bificials acting on their own initiative) presented to the Governor for his approval, are not lawmaking prerogatives, but are non discretionary mandatory legislative duties which the Legislature not only has the power and authority to perform before it actually dissolves sine die as a Legislature sitting in regular constitutional session, but are - duties which, under the Constitution, the Senate and House of Representatives are bound to fully carry out before they are constitutionally warranted in actually adjourning sine die thereby bringing about their irrevocable dissolution as a legislative body. The fact that the individual legislators may in practice defeat their own legislative acts by their unconstitutional neglect to fully perform such duties before they actually disperse as a Legislature adjourned sine die, is no ground for holding that the duties themselves never existed.

The test of legislative power is constitutional restriction; what the people have not said in their organic law their representatives shall not do, they may do. Woodson v. Murdock, 22 Wall. 351, 22 L. Ed. 716. The Legislature is but an instrumentality appointed by the Constitution of this State to exercise a part of its sovereign prerogatives namely, the lawmaking power. In that capacity it holds and exercises governmental powers of the highest order. From the commencement of independent government in the United States to the present time the legislative powers of the several states have been vested in their respective legislatures. But without exception it has been provided in state constitutions that Legislatures shall be limited as to time in the exercise of their prerogative powers of lawmaking to stated regular or special sessions during which sessions only, said prerogative lawmaking powers can be constitutionally exercised.

When the Constitution fixes the period of permissible legislative activity, lawmaking sessions can' be held at no other times, and for no longer periods of time than the Constitution of State provides. But the limitations so placed by the Constitution upon the right of a Legislature to convene and sit as a parliamentary body for the exercise of its normal lawmaking legislative functions, have reference to a restriction on the exercise of prerogative lawmaking powers only, not on the carrying out of inescapable constitutional duties that may have arisen solely as an incident to a lawmaking power already duly exercised in limine.

Unless expressly or impliedly made applicable to the performance of legislative duties that are merely incidental to the proper recording or authentication of legislative acts evidencing a duly completed exercise of lawmaking power, organic limitations specifying a stated number of permissible days for the Legislature to be in session do not restrict absolutely the time of performance of such incidental duties. This is so, because limitations restricting the exercise of lawmaking powers permitted to the legislative de partment should not in reason be construed to defeat the performance by that department of mandatory incidental duties that are indispensable to be performed in order to effectuate its lawmaking power already exercised in due and proper reason.

. In the present proceeding it is established by the legislative journals and by the allegations of the return filed to the alternative writ of mandamus, that the Legislature of 1935 had fully exercised all of its lawmaking privileges and powers with reference to the final passage of Senate Bill No. 724 at the time the Legislature became functus officio as to its lawmaking powers at midnight on May 31, 1935. All that is shown by the pleadings to have been done by the Legislature after that time, so far as Senate Bill No. 724 was concerned, was that it remained together on June 1, 1935, in a “hold over” assembly declining to effectuate its own dissolution by sine die adjournment until it had first fully complied with Sections 17 and 28 of Article III of the Constitution by enrolling and authenticating said Senate Bill No. 724 that it had already constitutionally passed in an acknowledged proper “exercise” of its prerogative lawmaking power to enact it as a law during the sixty days’ period prescribed by Section 2 of Article III as the permissible “regular session” for such an enactment.

Implied powers of the Legislature are as potent as expressly conferred powers. The express declaration of the power of the Legislature to cause any regular session to “extend to sixty days” in accordance with Section 2 of Article III of the Constitution, ex necessitate implies its right to exercise its prerogative lawmaking functions as a Legislature up until the very moment of its constitutional prorogation. This in turn implies that under Sections 12, 17 and 28 of Article III of the Constitution the 1935 Legislature was en titled to remain in session on June 1, 1935, undissolved as a parliamentary body adjourned sine die when it found such holding over and continuation of'its sittings to be indispensable to enable it to comply with the express commands of Sections 12, 17 and 28 of Article III as to Acts it had already constitutionally passed but which had not been duly authenticated as such and presented to the Governor, during the sixty days period prescribed by Section 2 of Article III.

We hold, therefore, that insofar as the 1935 Legislature actually held over in unadjourned sitting on June 1, 1935, or after that date for the sole purpose of fully complying with Sections 12, 17 and 28 of Article III of the Constitution as to acts of legislation already duly passed within the regular session period limited by Section 2 of said Article III, that it was constitutionally in unadjourned session for the limited and special purposes aforesaid, notwithstanding the limitations of Section 2 of Article III of the Constitution and that it continued invested with all necessary authority as a Legislature to fully accomplish compliance with the express commands of Sections 12, 17 and 28 of said Article III as to its journals and enrollment, signing and presentation to the Governor of- the bill that it had constitutionally passed prior to June 1, 1935, before it undertook to disperse as a parliamentary body adjourned sine die.

This we hold not only for the reasons hereinbefore set forth, but for the further reason that once the Legislature becomes functus officio as to its lawmaking power under Section 2 of Article III of the Constitution and thereupon actually disperses as a legislative body adjourned sine die, it then possesses no power to reassemble as a Legislature in any sort of session, although it still is the duly consti tuted Legislature of the State of Florida, and is, as such, subject to being recalled into extra session by the Governor.

The final act of enrollment, the authentication of Senate Bill No. 724, by the signing of it in the presence of each House by the presiding officers and clerks thereof, and its final presentation to the Governor by the Legislature, although each of such steps actually transpired on the calendar day of June 1, 1935, must, in contemplation of the Constitution relate back to the time final lawmaking action on the bill was definitely and irrevocably completed on or before May 31, 1935, the last day of the regular legislative session. Therefore such steps were properly made to appear of record nunc pro tunc on the official legislative journals evidencing the legislative proceedings of May 31, 1935. This is so, because that which was finally completed under constitutional authority on June 1, 1935 (as we have herein held was the case) is merely a continuation and subsequent carrying out of constitutional duties that arose, and were inescapably required to be performed as a result of what had already transpired as an exercise of lawmaking power that occurred on or before May 31, 1935. The record of the performance of such duties was therefore constitutionally incorporated into the record of the Legislature’s May 31, 1935, legislative day’s business and is not subject to the particular attack leveled against it in this proceeding.

To restate the proposition in simile: The death of the 1935 regular session of the Legislature by constitutional limitation at midnight on May 31, 1935, did not defeat performance of its constitutional duty under Section 12, 17 and 28 of Article III of the Constitution to make an orderly disposition of its remains by properly winding up its affairs as soon as practicable thereafter, so long as the assembly did not actually disperse as a parliamentary body and thereby put it beyond its power to reassemble for that purpose absent the call of the Governor into extra session.

The return of the respondents is adjudged sufficient so the alternative writ of mandamus must now be quashed. State, ex rel. Gillespie, v. Carlton, 103 Fla. 810, 138 Sou. Rep. 612; State v Seaboard Air Line R. Co., 92 Fla. 61, 109 Sou. Rep. 656.

Peremptory writ denied and 'alternative writ' of mandamus quashed.

Whitfield, C. J., and Terrell and Buford, J. J., concur. Ellis, P. J., and Brown, J., dissent.