Amos v. Gunn (84 Fla. 285, 1922)

Browne, C. J.

It appears from the record, and it is not controverted, that House Bill No. 702, published as Chapter 8411 of the Laws of Florida, Acts of 1921, was not signed by the presiding officers of the Senate and House of Representatives until after the expiration of the constitutional period of sixty days during which -a legislative session may last, and after the legislature adjourned sine die on the 3rd day of June, 1921.

This presents the question of the validity of the act, in which is involved whether or not in its passage through the two houses of the legislature, from the time of its introduction in the House to its signature by the presiding officers, all the constitutional requirements for making a bill a law, were complied with.

To decide this, we must consider and determine these two questions:

(1) Are the signatures of the presiding officers of the-two houses of the legislature essential before'a bill can become a law!

(2) If such signatures are essential, must the bill be signed before the legislature adjourns sine die?

To both of these queries, we are compelled to answer, yes.

The clause of the constitution on this subject is: “all bills or joint resolutions so passed shall be signed by the presiding officer of the respective houses.” Art. Ill, Sec. 17, Constitution of Florida.

This is as mandatory as any other constitutional provision controlling the valid enactment of a law, and we have no hesitancy in declaring that the signing of a bill by “the presiding officer of the respective houses,” is essential to the valid enactment of a bill into a law.

From saying that this provision of the constitution is mandatory, it must not be inferred that we regard any of the provisions of that great charter of liberties as merely directory, as we fully agree with what was said in the case of Hunt v. State, 22 Tex. App. 396, 3 S. W. Rep. 233. “But notwithstanding these decisions are by able courts, the great weight of authority seems to be the other way, holding that the courts nor any other department of the government are at liberty to regard any provision of the Constitution as merely directory, but that each and every of its provisions must be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes. Judge Cooley, in his great work on Constitutional Limitation, upon this subject says: ‘The courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution.’ ” .

Judge Cooley also has this to say on the mandatory character of constitutional provisions: “If, therefore; a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it.

And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great is that which is done.by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” Cooley’s Const. Lim. (6 Ed.). 180.

We come now to the second question: when shall the presiding officers perform this duty?

The signing of a bill by the presiding officer of either house is a legislative act, and after the expiration of the period of sixty days to which it is limited by the constitution and after the adjournment of the legislature sine die, neither the legislature, nor any membér thereof, including the presiding officers, can perform any act required by the constitution to be done in the passage of a bill.

If the duty of the presiding officer to sign bills properly passed by the body over which he presides, is not a legislative act, but merely a ministerial one it follows, (1) that a writ of mandamus would lie to require him to sign a bill,, and (2) that an injunction would lie to restrain him from signing a bill upon an application showing that he was about to sign an unconstitutional measure.

Such a construction would make the proceedings of the legislature subordinate to the judicial power. This proposition needs only to be stated to be its own refutation.

If the presiding officer of either house of the legislature may lawfully withhold his signature from a bill that had been regularly and properly passed by the house over which he presides, until after the sine die adjournment of the legislature, it would be within his power to defeat the passage of any bill by holding it until after the adjournment and then refusing or failing to sign it.

On the other hand, if this duty is one that must be performed during the session, and the presiding officer should refuse to sign it, he could be required to do so, or deposed from office-and another “presiding officer” elected, who would have authority and whose duty it woirld be to sign the bill.

One construction deprives the legislature of the power to control its presiding officers and lodges in either of them the power to defeat a bill otherwise regularly, lawfully and constitutionally passed.

The other permits the legislature to control its presiding officers and to require them to perform their duties.

The necessity for the presiding officers to sign an act before the constitutional term of the legislature has expired, seems to have been recognized by the presiding officers of the Senate and House of Representatives in signing House Bill No. 702, because, while it is admitted that each of these officers signed the bill at least twenty-four hours after the legislature adjourned sme die, the Speaker certified that it had “passed the House of Representatives this 28th day of May A. D., 1921,” and the President of the Senate certified that it “passed the Senate this 2nd day of June A. D., 1921.”

The use of the terms: “this 28th day of May,” and “this 2nd day of June,” means that these were the days and dates when the presiding officers affixed their signatures thereto.

If the President of the Senate and the Speaker of the House had construed the constitutional requirement to mean that they could sign the bill any time after the adjournment óf the legislature sme die, the certificate of the Speaker of the House would have been and to this effect, “passed the House of Representatives the 28th day of May, A. D. 1921, “and “signed by me this 4th day of June A. D. 1921.” And so of the signature of the president of the Senate.

The cases cited on both sides of the question under consideration, are not determinative, and no useful purpose would be served in discussing them. In some, the provisions of the constitution differ from ours, in others a different situation was presented, and in two instances where the courts at one time held one way, later decisions seem to adopt or at least to favor a different rule.

We are firmly of the opinion that the presiding officer of either house of the legislature has no authority to sign a bill after the adjournment of the legislature sine die.

It is unfortunate that this situation has arisen, but this court has nothing to do with the manner in which the legislature performs its duties, and if it adjourns without having completed them, amopg which is to see that its presiding officers have signed all bills that have duly and properly passed both houses, it has allowed the bill to die, and this court cannot breathe into it the breath of life.

We are keenly alive to the seriousness involved in courts nullifying what purports to be a law enacted by the legislature, but we are as keenly alive to the sériousness involved in giving life by judicial sanction to such enactments when in their passage through the legislature all the constitutional requirements have not been observed. The rights of persons and property and human liberties, are not apt to be affected by legislative non-action, or by the failure of proposed legislation, but they may be seriously impaired if the courts sanction lax methods in attempting to enact laws, and treat as unessential, constitutional provisions governing the legislature and its officers in the enactment of laws.

The view which we take of this case precludes the determination of other questions involved.

As the requirements of Article III, Sec. 17 of the Constitution of Florida were not complied with, the act never became a law, and the judgment of the chancellor is affirmed.

Taylor and Ellis, J. J., concur.

■Whitfield and West, J. J., dissent.

Whitfield, J.,

dissenting. — The real question presented is whether an act that appears by the journals of each house to have been duly passed by the legislature and that appears by the enrolled bill to have been duly approved and signed by the Governor, is invalid because the bill that was duly passed, was enrolled, and was signed by the legislative officers and received by the Governor the day after the legislature adjourned sine die, the Governor having ten days after the adjournment within which to approve or to veto the bill. The complainant below had the burden of showing the invalidity of the Act.

If the mere failure of the legislative officers to sign a bill before final adjournment of the legislature, destroys an act that was duly passed by the legislature and duly approved by the Governor, then the powers of the legislative and executive departments of the State government may be rendered important by a mere ministerial inadvertance. Certainly the provisions of the constitution that all bills *' shall be signed by the presiding officer of the respective Houses and by the Secretary of the Senate and the Clerk of the House of Representatives,” does not contemplate such a result. It merely imposes a duty to sign all duly passed bills. By express provision of the constitution "every bill that may have passed the legislature” and that may be duly approved by the Governor, "shall be a law.” This clearly shows the required signing of bills by the legislative officers is for purposes of identification and authentication. State v. Glenn, 18 Nev. 34, 1 Pac. Rep. 186; Evans v. Browne, 30 Ind. 514; 95 Am. Dec. 710.

The duty of the legislative officers to sign all bills that have been duly passed by both houses of the legislature is absolute; but the constitution does not provide that the bill shall not become a law until it is so signed as in State ex rel. Attorney General v. Mead, 71 Mo. 266, and Hamlett v. McCreary, 153 Ky. 755, 156 S. W. Rep. 410; Douglas v. Bank, 1 Mo. 20, 410, and such signing is not a part of the passage of a bill, and the Governor alone is empowered to approve or disapprove such bills, therefore the required signing can be only for purposes of authentication. And since, the constitution does not require such signing to be done in open session, as in State ex rel. McClay v. Mickey, 73 Neb. 281, 102 N. W. Rep. 679, or that the signing shall be noted in the journals as in Hunt v. State, 22 Tex. App. 396, 3 S. W. Rep. 233, it may properly be done the day after the adjournment of the legislature if it were inadvertantly. omitted to be done before adjournment, no wrong doing being involved. See Houston & Texas Central R. R. Co. v. Odum, 53 Tex. 343. The authentication by signing the bill in this case satisfied the Governor who approved the bill that had “passed the legislature.” See Cottrell v. State, 9 Neb. 125, text 129, 1 N. W. Rep. 1008; State v. Glenn, supra; Lankford v. Somerset Co., 73 Md. 105, 20 Atl. Rep. 1017, 11 L. R. A. 491; Dow v. Beidelman, 40 Ark. 325, 5 S. W. Rep. 297; State ex rel. Railroad Commission v. Missouri Pac. R. Co., 100 Neb. 700, 161 N. W. Rep. 270; Taylor v. Wilson, 17 Neb. 88, 22 N. W. Rep. 119. In People v. Rose, 167 Ill. 147, the bill was enrolled and signed by the legislative officers some days after the legislature adjourned. The Constitutional provisions are similar to ours.

The legislative rules of procedure contemplate such signing before the legislative session ends, but do not forbid the signing to be done after adjournment; and such rules cannot operate to prevent the performance of duties expressly commanded by the constitution or to destroy organic functions. Simon v. State, 86 Ark. 527, 111 S. W. Rep. 991. No provision of the constitution was violated by the legislature or the Governor in enacting and approving Chapter 8411, and no authority is shown for nullifying the law.

Courts have no power to annul a law that has been duly passed by the legislature and duly sighed by the Governor when no provision of the constitution was violated in enacting the law, and its contents accord with organic law. . Detailed considerations confirm these conclusions.

Where the validity of the enactment of a statute is challenged, and the journals of the two houses affirmatively show that the bill was duly passed by the legislature, and the enrolled bill on file in the office of the Secretary of State shows that it is duly authenticated by the signatures of all the legislative officers who are by the constitution and by the legislative rules required to sign the enrolled bill and it also appears by such enrolled bill that it was approved and signed by the Governor and filed in the office of the Secretary of State within the time fixed by the constitution for executive action on such bills, if a demurrer may admit allegations that the bill was in fact enrolled, signed by the legislative officers and received by the Governor after the adjournment of the legislature for the session, the demurrer does not admit allegations that such enrollment and signing by the legislative officials and receipt of the bill by the Governor after the adjournment of the legislature, were unauthorized and render the approval of the bill by the Governor ineffectual to make it a law, since the stated conclusions are untenable in view of tbe provisions of the State constitution regulating the enactment and approval of statutes.

The essentials in the enactment of a law are (1) A bill containing the prescribed enacting clause and appropriate title and provisions; this is shown by the bill itself. (2) The passage of the bill by a viva voce vote of a majority of the members present in each House a majority of die members of each House being present, the yea and nay vote on final passage to be entered on the journal of each House. Bills making appropriations for claims the subject-matter of which shall not have been provided for by pre-existing laws must be passed by two-thirds of the members elected to each house of the legislature. This must appear by the journals. (3) The approval by the Governor of the bill that passed the legislature, or the failure of the Governor to act on the bill within the time prescribed by the constitution, or the passage of the bill over the Governor’s veto by a two-thirds vote of each house, the vote to be entered on the journal of each House. Approval by the Governor appears by the bill itself.

The constitution provides that every bill shall in each House be read on three several days, and be read by its title on its first reading and by its sections on its second reading unless two-thirds of the members present otherwise order, and that every bill (except a general revision of the laws), shall be read by its sections on its final passage, and that all bills that are duly passed “shall be signed by the presiding officer of the respective Houses and by the Secretary of the Senate and the Clerk of the House of Representatives,” and that before becoming a law every bill passed by the legislature shall be presented to the Governor. These proceedings are not by the constitution required to be noted on the journal. State ex rel. Turner v. Hooker, 36 Fla. 358, 18 South. Rep. 767; West v. State, 50 Fla. 154, 39 South. Rep. 412; Wade v. Atlantic Lumber Co., 51 Fla. 638, 41 South. Rep. 72; Rushton v. State, 58 Fla. 94, 50 South. Rep. 486.

In the absence of fraud and of controlling provisions of law, the due passage of a bill by the legislature is conclusively shown by the journals of the two houses of which the courts take judicial notice; and the signing of the bill by the legislative officers and the approval and signing of the bill by the Governor, are conclusively shown by the enrolled bills on file in the office of the Secretary of State of which journals and enrolled bill the courts take judicial notice. See State ex rel. Markens v. Brown, 20 Fla. 407; State ex rel. Attorney General v. Green, 36 Fla. 154, 18 South. Rep. 334; Amos v. Masley, 74 Fla. 555, 77 South. Rep. 619; State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South Rep. 767; Stockton v. Powell, 29 Fla. 1, 10 South. Rep. 688.

It clearly appears by the legislative journals, of which the court takes judicial notice, that House Bill No. 702, published as Chapter 8411, Laws of Florida, was duly passed by the House, that the yea and nay vote on final passage was duly entered on the House Journal, that the passage of the Bill by the House was duly communicated to the Senate with a transmission of the bill, that the Senate duly passed the bill with amendments, that the yea and nay vote on final passage of the bill in the Senate was duly entered on the Journal of the Senate, that the bill with the amendments were duly transmitted to the House, that the House concurred in the Senate amendments and the Senate was notified thereof. There was no reconsideration of the vote by which House Bill No. 702 as amended was finally and duly passed by' a recorded yea and nay vote in each house. This establishes the due passage of the bill by both houses of the legislature, and it is not questioned by the complainant. The Governor signed the bill within the time fixed by the constitution for executive action, and it therefore became a law when signed by the Governor. Sec. 28, Art. III, Const. There is no suggestion that Chapter 8411 is not in fact the same as House Bill No. 702 as finally passed by both houses and as signed by the legislative officers, and approved and signed-by the Governor. Their identity appears to be conceded in the bill of complaint.

The enrolled bill on file in the office of the Secretary of State of which the court takes judicial notice, contains the following endorsements.

“House Bill No. 702.

Passed by the House of Representatives this 28th day of May, A. D. 1921. '

Frank E. Jennings,

Speaker of the House of Representatives.

B. A. Meginniss,

Chief Clerk of the House of Representatives.

Passed the Senate this 2nd day of June, A. D. 1921.

W. A. McWilliams,

President of the Senate.

C. A. Finley,

Secretary of the Senate.

Examined and found correctly enrolled.

L. C. Crofton,

Chairman of Committee on Enrolled Bills.

I certify that this Act originated in the House of Representatives.

B. A- Meginniss,

Chief Clerk of the House of Representatives.

J. B. Shuman,

Enrolling Clerk of the House of Representatives.

Approved this 10th day of June, A. D. 1921.

Cary A. Hardee,

Governor. ’ ’

The legislature adjourned sine die June 3rd, 1921. See Acts of 1921, page 462; page 2792 Senate Journal of 1921; Page 3581 Journal of the House of Representatives of 1921.

The legislative rules of procedure provide that after a bill ,-shall have passed both houses it shall be enrolled as required by the statute (Sec. 82 Rev. Gen. Stats.), and that after the enrolled bill has been examined and compared with the engrossed bill by the joint legislative committee it shall he signed in the respective houses by the legislative officers, designated, and then the enrolled bill shall be endorsed by the secretary or clerk certifying in which house the bill originated, and then the bill shall by the legislative committee be presented to the Governor and a report of the day of s.uch presentation entered on the journals. It is in effect argued that these rules interpret the constitutional provisions relating to the signing of bills and to the presentation of the same to the Governor, and that non-compliance with the rule renders a bill inoperative as law, even though the bill, as duly passed, was, after the adjournment of the legislature, in fact enrolled, authenticated and signed by the legislative officers who are by the constitution and by the legislative rules required to sign it, and the bill is approved and signed by the Governor and filed in'the office of the Secretary of State within the time fixed by the constitution for executive action on the bill. The provisions of the constitution do not sustain this contention.

Where an act was duly passed by the legislative departrment and duly approved by the Executive department, the mere fact that the bill as passed, was,o» the clay after the-legislature adjourned, enrolled and signed by the legislative-officers who are by the constitution and by the legislative-rules required to sign all duly passed bills, does not authorized the judicial department to nullify the Act, when the-enrolling and signing of the bill after the1 presiding officers of' thg .'two; Hóuses hnd¡,their respective'.clerks-whicli is presentedtOKthe Governor in the manner which the usage, .the orderly con-, duct of legislative procedure and the rules under which the, two bodies- have ever acted and the express mandatory pro-, visions of the constitution requiring its presentation to the Governor marks the termination of - legislative 'action in regard to it.

When such bill receives the approval of the Governor and. is signed by him and filed with the Secretary of State it becomes an executive record importing verity as to the or-, derly presentation of the bill to him as one which had passed the legislature which fact is essential to its becoming a law.

The constitution definitely in most unequivocal terms, explicity and unreservedly requires certain procedure to be followed by the legislature in the passage of a bill or joint resolution, and those requirements are that on final passage the bill shall be read by sections, the yea and nay vote shall be taken, the presiding officers of the respective, houses and the secretary of the Senate and 'clerk of the House, of Representatives shall sign the same and the yea and nay vote on final passage in each house shall be entered on the respective journals. See Sect. 17 Art. Ill Constitu-, tion.

The reason for requiring the signatures of the presiding officers and clerks of the two Houses is clearly expressed in the ease of Field v. Clark, supra, by Mr. Justice Harlan,, whose aid, speaking of the Constitution- of the United States, “although the constitution does not expressly require bills .that have passed Congress to be attested by the, signatures of the presiding officers of the two houses, usage,the orderly conduct of legislative proceedings and the rules; und,ér:which,the two bodies have, acted since the organization of the government require that mode of authentication.” He then proceeds to say that such signing “in open session of an enrolled bill is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses through their presiding officers to the President that a bill thus attested has received in due form the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him.”

The constitution of Florida, as herein before stated, contains a provision identical in meaning with that of the Constitution of the United States as to the action the legislature shall take after a bill passes that body. In the case of the Federal Constitution the language is: “Every bill which shail have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States.7 7 The language of the Constitution of Florida is: “Every bill that may have passed the legislature shall, before becoming a law, be presented to the Governor.” In addition, the Constitution of Florida requires the signing by the presiding 'officer of the two Houses and their clerks.

It seems