State, Ex Rel. v. Davis , 123 Fla. 41 ( 1936 )

I am unable to agree with the opinion and decision of the majority in this case because I think that, according to the allegations of the alternative writ and averments of the return the relators are entitled to a peremptory writ; that the relators have such an interest in the proceedings as to entitle them to question the legality of the enactment of Senate Bill No. 724 (which is claimed by the Attorney General's office to have been duly enacted at the regular session of the Legislature of the session of 1935 and numbered as Chapter 16848, Laws of Florida) and in pursuance of that end may in such proceedings as are here instituted require Honorable R.W. Davis, Jr., who was Secretary of the Senate, and Honorable Weldon G. Starry, who was Chief Clerk of the House of Representatives of the Regular Session of the Legislature of 1935, to correct and revise the respective Journals of the Senate and House of Representatives for the last three days of the legislative session, to the end that the said Journals as finally incorporated into the bound volumes "may present a truthful and accurate account of the proceedings of the two Houses" pursuant to the requirements of "House Concurrent Resolution No. 30 of the 1935 Session of the Florida Legislature."

That by such proceedings as here instituted, that is to say, by direct attack, relators may establish the fact that the document which purports to be the record of legislative proceedings is not in truth and in fact a true account of such proceedings; that the records in the office of the Secretary of State purporting to be authentic legislative records of the last three days of the regular session of the 1935 Legislature are not in truth and fact a record of the last days of the regular session before it became"functus officio," and that certain entries in the purported journals of the last three days of the regular session relating to Senate Bill No. 724 were false in that the acts and transactions therein recited to have occurred on May 31, 1935, did not occur upon that day, but did occur upon the following day when the regular session had ceased to exist and be a "legislative body by operation of the Constitution." See State, ex rel. Landis, v. Thompson, 121 Fla. 561, 164 South. Rep. 192.

The allegations of the alternative writ are such in relation to certain pretended acts and transactions of the regular session of the Legislature that being established show that the certain constitutional duties required to be performed by the Legislature in regular session in the matter of the attempted enactment of Senate Bill No. 724, Chapter 16848, were not in truth performed by that body while in regular session, or during the period of time fixed by the Constitution for regular sessions, but were attempted to be done by an assemblage of persons in the State Capitol who may have been legislators, but after the constitutional period of time fixed by the organic law for regular sessions of the Legislature and after the Legislature as a lawmaking body had become dormant or functus officio; that such facts as alleged in the alternative writ being established, Senate Bill No. 724, Chapter 16848, did not become effective as a constitutionally enacted statute.

I think the "answers and returns" of the respondents, Robert W. Davis, Jr., and Weldon G. Starry, are insufficient and in substance are admissions of the allegations of the alternative writ; that the relators upon the face of the proceedings in this case are clearly entitled to the peremptory writ under the doctrine announced in the case hereinbefore cited, State, ex rel. Landis, v. Thompson.

This brings me, therefore, to the consideration of the question whether members of the Legislature may after the full sixty days have expired during which the Constitution empowers them to be in regular session by merely remaining in the Capitol perform certain constitutional duties in the matter of exercising the power and performing the acts necessary to the production of a statute, the bringing into existence of a legislative enactment.

I think that proposition cannot be logically supported nor can any such theory be supported under a Constitution such as ours.

The opinion of the majority; prepared by Mr. Justice DAVIS, presents, in his usual vigorous and facile way, possibly the best reason for upholding such a proposition that could be found in the books, if any such attempt may be found among them, but I am unable to agree with his reasoning and am impelled to place my views of record.

The term, "`rump' session of the Legislature," used in the able concurring opinion of Mr. Justice DAVIS in the case of State, exrel. Landis, v. Thompson, 121 Fla. 561, 164 South. Rep. 192, to distinguish an assemblage of persons in the Capitol building, who, as members of the legislative branch of the government, assembled there after the expiration of the time designated and fixed by the Constitution during which as members of the legislative branch of the government they were authorized and empowered to be in session for the transaction of legislative business, from the duly organized constitutional session of the legislative branch, is, in my judgment, an unfortunate use of words tending to produce confusion of thought.

It is so because the term is unknown in the science of American government; inconsistent with its institutions, foreign in origin, and a political impossibility under our Constitution. The term is confusing also because, while it impliedly condemns the assemblage as constitutionally without power to transact any legislative business, it yet retains by remote intimation the suggestion of some elements existing in a constitutional legislative session.

The term "Rump Parliament" was one applied to a remnant of a Parliament which assembled in the year 1648 in London, England, during the reign of Charles I. It had made certain concessions to the King which offended the army. The armed body interfered, expelled about ninety-six Presbyterian members, leaving about fifty or sixty which were afterwards known as the "Rump." That illegal and unconstitutional body committed the abhorrent crime of regicide, which ever afterwards was condemned as an ineradicable blot upon the history of England, and then proceeded to set up a new government called the commonwealth. It but followed the tendency usually observed in all illegal or unconstitutional assemblages parading in the name of sovereign power.

There is no place, therefore, in my thought, for the term "session of the Legislature," however qualified by adjective or phrase, as applied to any assemblage of men and women members of the legislative branch of the government held outside of the period of time definitely fixed by the Constitution for the exercise by them of the sovereign power of legislation and all matters pertaining to legislative functions. Nor does such an assemblage of legislators recognize the applicability of such term to such an assemblage, for it is commonly known and reported that as the hour of the constitutional session approaches for its constitutional dissolution some members resort to the puerile expedient of stopping the clocks placed in their respective halls in simulation of an arrest of time, as if to anoint by this fanciful procedure the consciences of some of their fellows who know that no authority exists under the Constitution for a prolongation of their legal session beyond the constitutional period of sixty calendar days to which their regular sessions may extend. Sec. 2, Art. III, Const.

The conclusion of the majority that the constitutional termination of the legislative session at midnight on May 31, 1935, did not preclude an assemblage of the members of the Legislature the following day and other days indefinitely in order to prepare a journal of its proceedings, cause all bills passed to be signed by the presiding officer of the respective House and Secretary of the Senate and Clerk of the House of Representatives and to be presented to the Governor, rests upon several hypotheses, none of which is supported by any historical or judicial reference and all depend upon the assumption that the exertion of the legislative power consists only in submitting a proposition or bill, discussing its merits and voting upon its passage; that keeping a journal by each House, recording therein the yea and nay vote on the final passage of every bill, the signing of the same by the presiding officers of each House, and their clerks or secretaries and the presentation of the bill so passed to the Governor, constitute no part of the sovereign power of legislation, but are the mere mechanics of legislative action, which the Constitution imposes upon the members of the Legislature to operate to the end that a proper record of legislative activities may be preserved and the constitutional mandates be obeyed.

The majority opinion seems to admit, however, that in order to operate such mechanical devices or discharge such purely ministerial duties there must be no dispersing of the members of the Legislature after the constitutional expiration of the period of time during which the "Regular sessions of the Legislature may extend," but they must continue together at the place where they were when the period of time during which they could be in constitutional session expired, because if they dispersed and went out to their meals or to their respective boarding houses or hotels or to their homes they could not again assemble in constitutional session unless recalled into extra session by the Governor.

Now the Constitution does not require the sessions of the Legislature to be terminated by a motion duly adopted to adjournsine die. A majority of the members of each House constitutes a quorum of the House to do business, but a smaller number may adjourn from day to day. Art. III, Sec. 11, Const. And neither House may, without the consent of the other, adjourn for more than three days. Art. III, Sec. 13, Const. At the expiration of the constitutional period of sixty days, to which the regular sessions of the Legislature may extend, the session stands adjourned under the Constitution. No motion is necessary to confirm the passage of time, or give sanction to the constitutional limitation.

The majority opinion admits the "death of the Legislature by constitutional limitation at midnight" of the sixty day period. That is an incorrect expression. The "Legislature," a branch of the government, does not die. It continues in existence. The members continue to hold office to be recalled in extra session, if the Governor deems proper so to do, but the regular session does die. If it is dead, then it has no life to perform mechanical or ministerial duties.

If the session could after death, that is, after its legal and constitutional end, correct journals, cause its presiding officers to sign bills which were passed during the session, and present the same to the Governor, how could he return the bill to the House in which it originated should he immediately exercise his power of veto? Or if the members of the Legislature continued in assemblage within the room in which they were when the regular session died constitutionally, and remained there without food or rest for two or three days winding up the mechanics or discharging so-called minsterial duties, and presented a bill to the Governor two or three days after the constitutional death of the session and then immediately dispersed for much needed rest, recreation, food and drink, how will the curtailment of the Governor's ten days time after adjournment which he has in which to veto a bill so presented be explained? Will the Constitution be construed to be amended in such cases by the extension of the ten days from the constitutional adjournment by so many days as the session corpse has utilized to operate the mechanics of its creations when alive?

The duties imposed by Sections 12, 17 and 28 of Art. III of the Constitution are not merely mechanical or ministerial duties. They constitute part of the limitations upon the power of legislation imposed by the people to insure an orderly, careful and circumspect exercise of the power. Such was the ratiodecidendi of the opinion and decision in the case of Amos v. Gunn, 84 Fla. 285, 94 South. Rep. 615.

The power of legislation is the supreme power of a State. Blackstone so recognizes it in the definition of municipal law which he gives. A rule of conduct prescribed by the supreme power of a State prescribing what is right and prohibiting what is wrong. See Sherwood's Blackstone's Com.

It is the power to prescribe rules of conduct for the people, regulating their reciprocal obligations and rights, the acquisition and defense of property and the protection of the inalienable rights of man. It is the power to direct the material and, by indirection or resultant effect, the spiritual destiny of the people. It is the power to build or destroy, to encourage or discourage; the power to promote the happiness of the people or to destroy it. Laws are the expressed will of the sovereign power and operate upon the lives of the people to promote their welfare or destroy their peace and happiness.

Beneficent and wise laws are the ultima Thule of the Supreme power in the cause of humanitarian objects and purposes, while ill considered, wicked or cruel laws are the de profundis of political degradation. We are accustomed to say that the powers of government are divided into three arms or branches: the legislative, the executive and judicial, which means that one power is to make laws, another is to interpret or explain them, and another is to enforce them. If there were no laws to govern a society there would be no field in which either the judicial or executive could function. There would be no laws to interpret, none to enforce. The will of the most sefish and powerful would reign, every man his own lawgiver, his own interpreter, and therefore his own executioner. There would be chaos worse confounded. The rule of the jungle beast would be established. Natural law would be man's only measure of activity in any enterprise.

Governments which derive their just powers only from the consent of the governed are established to protect the people in the possession of their unalienable rights to life, liberty and the pursuit of happiness, and the power to make laws in the execution of that design is the greatest and most sacred power of the sovereign authority.

In the establishment of governments like ours constitutions are written as the measure of power which the sovereign commits to its agencies. Is it unreasonable, therefore, to say that in committing the greatest of all powers of the sovereign — that of the power of making laws — to the legislative agency, the people in their written Constitution would circumscribe, define, limit the exercise of such power by prescribing an orderly, carefully considered and meticulous procedure according to which the power to make laws is exercised? That is exactly what the Constitution does by Sections 12, 17 and 28 of Art. III. According to such course only may legislation be brought into existence. To attempt it in any other way is anarchy.

The people in vesting the power to make laws in the legislative branch, Section 1, Art. III, prescribed with meticulous care how the power would be exercised. The regular sessions shall be held biennially, Sec. 2. A majority of each House shall constitute a quorum to do business, Sec. 11. Each House shall keep a journal of its proceedings, Sec. 12. The enacting clause of every law shall be in a certain form, Sec. 15. Each law shall embrace but one subject and matter properly connected therewith, Sec. 16. Every bill shall be read by its title on its first reading, or by sections if one-third of the members of the House require it, Sec. 17. Every bill shall be read on three several days unless two-thirds of the members present dispense with the rule, Sec. 17; every bill on its second reading shall be read by sections unless two-thirds of the members present in the House where the bill is pending dispense with the rule, Sec. 17; the vote on the final passage of every bill shall be taken by yeas and nays, Sec. 17; such vote shall be entered on the journal of each House, Sec. 17; all bills 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, Sec. 17. Every bill that may have passed the Legislature shall before becoming a law be presented to the Governor, Sec. 28; if the Governor does not approve it he shall return it to the House in which it originated, which House shall cause such objections to be entered upon its journal and proceed to reconsider it, Sec. 28; if the Legislature by final adjournment prevent such action by the Governor, the bill shall be a law unless the Governor within ten days after the adjournment shall file such bill with his objections thereto in the office of the Secretary of State, Sec. 28. Regular sessions of the Legislature may extend to sixty days commencing on the first Tuesday after the first Monday in April in every second year after the year 1887, Sec. 2; all of Art. III, Constitution.

These rules and regulations constitute the orderly procedure according to which the sovereign will may be expressed in the enactment of legislation. In sustaining legislation which has been attacked because, as it was alleged, the Legislature in regular session or in extra session had ignored any one or more of these constitutional requirements, this Court has invariably said that where the journal of the Legislature is silent upon the proposition except in the two instances of a defective title or the record of the yea and nay vote, it will presume that the Legislature observed the constitutional requirements and limitations in the exercise of the legislative power; that the members of the Legislature are under oath to support, protect and defend the Constitution and government of the State and are presumed to have observed and obeyed their oath of office; that it would require journalistic evidence or evidence as high in dignity as the legislative journals to overcome the presumption.

The courts are therefore concluded by the legislative judgment that it has complied with the requirements imposed by the Constitution. Stockton v. Powell, 29 Fla. 1, 10 South. Rep. 688; Ames v. Gunn, supra.

The converse of that proposition is true and has been declared by this Court since 1849. Courts of justice cannot act upon the presumption that powers conferred by the Constitution will be abused. Curry v. Marvin, 2 Fla. 411.

The courts would not presume that the Legislature had disobeyed any one of the constitutional mandates required to be observed in the exercise of the legislative power. If it were the rule or lawful to do so, then in the absence of a record showing to the contrary the failure to observe any one of the requirements would invalidate the attempted legislation.

The recited constitutional requirements are, in my view, all of equal dignity and importance. They must all be observed by the Legislature in the exercise of its power to enact laws with equal fidelity to the organic law and devotion to its expressed limitations.

The majority opinion, however, distinguishes between the recited constitutional elements in the process of making law, emphasizing the importance of some and reducing others to a mere mechanical or ministerial function which may be performed by persons designated by the members of the Legislature when in session or by the members of the Legislature after the expiration of the session, whether a majority of the membership of both Houses remain in the Capitol or not.

If a question of the presence of a quorum should arise in such case it could not be determined by those present, because there would be no power to determine it as that power exists only in the members in regular session.

The majority opinion refers to "legislative prerogatives." That is a phrase which has recently been used in discussions pertaining to the activities and powers of the Congress of the United States. I do not agree that the State Legislature has in the true sense of the word any "prerogatives." That word, as Judge Merrill E. Otis, of the United States District Court of Missouri, said, is in history associated with the exercise of a power for which there is no responsibility or accountability. Certainly the Legislature has no "prerogative" to enact laws in disregard of the limitations imposed upon it by the Constitution in the exercise of that great power. The Legislature is empowered only to enact statutes in discharge of that enormous responsibility in strict observance of the limitations, rules and manner of procedure specifically outlined and charted by the people in the Constitution.

If the members of the Legislature do not observe the constitutional instructions in the matter of its procedure in enacting laws why do they swear to support, protect and defend the government and Constitution of the State? If the Legislature is at liberty to ignore the least of these limitations, if indeed there are any degrees of importance in them, and the Court is foreclosed from reviewing the Act when it is properly presented, then this matter of legislation is worse than solemn mockery.

There cannot be a de facto session of the Legislature, which the so-called "hold-over session" is said by some persons to be, because it was either in regular session or it was not on June 1, 1935. The regular session had expired by constitutional limitations at midnight on May 31, 1935. The members of the Legislature who were present in the State Capitol on June 1, 1935, were not assembled in a "de facto" session. There cannot exist such an anomalous thing in a constitutional government. The assemblage is either in constitutional session or it is not. If it is not, then it is without power to do any act relating to the enactment of laws. State, ex rel. Landis, v. Thompson, 121 Fla. 561, 164 South. Rep. 192; State v. Tippett, 101 Fla. 1117, 134 South. Rep. 52.

To hold that there could be a de facto legislative session at which laws may be enacted or any act performed in relation to the enactment of laws as the Constitution requires to be done is to countenance revolution. See Norton v. Shelby County,118 U.S. 425, 30 L. Ed. 178, 6 Sup. Ct. Rep. 1121.

I am therefore of the opinion that the return to the alternative writ is insufficient and the peremptory writ should issue notwithstanding such return.

BROWN, J., concurs.