Collier v. Gray , 116 Fla. 845 ( 1934 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an application for a temporary restraining order pending an appeal from an order made by Honorable J. B. Johnson, Judge of the Circuit Court for Leon County, denying an application by D. B. Collier, a citizen of Manatee County, Florida, for an injunction to restrain Honorable R. A. Gray, as Secretary of State, from continuing to advertise in newspapers in various counties in the State a proposed constitutional amendment, said to have been submitted at the last general session of the Legislature, and from expending any public funds upon the preparation, mailing or certifying the supposed proposition to the Boards of County Commissioners of the State of Florida for the purpose of having the same printed upon the official ballots to be used at the November election.

From the order denying the injunction, which does not appear to have been recorded except by the notice of the entry of the appeal, D. B. Collier appealed to this Court. The appeal was taken on September 29, 1934, the same day that the order denying the injunction was made.

This Court is by the present application petitioned to exercise the power of granting to the complainant an injunction to restrain the Secretary of State from performing the very same public service which the Circuit Court refused to restrain him from performing.

The application is signed by twenty-two attorneys at law as solicitors for appellant.

The Court is requested to exercise the power under Section 5 of Article V of the Constitution which authorizes it to issue "all writs necessary or proper to the complete exercise of its jurisdiction."

This short cut to an expeditious determination of Mr. Collier's appeal is an anomalous proceeding and seems hardly to be justified by the exigencies of the situation. It is true that the appeal may not be determined in due course before the election, as to the notices they have doubtless already been published, so the expense to be saved which justifies the taxpayer in seeking an injunction is the cost of printing the proposition on the ballots and the supposed confusion which a wrongful submission of the proposed amendment to a vote of the electors would entail. See Crawford v. Gilchrist, 64 Fla. 41, 59 So.2d Rep. 963.

In that case an application for a supersedeas was denied. A temporary injunction was granted against the Secretary of State, who on appeal applied for a supersedeas. The Court, considering that the public was vitally interested, decided to hear and determine the case on its merits, questions of law only being involved.

In this case the injunction was denied, so this Court is urged to issue the necessary writ in order that it may completely exercise its jurisdiction. If this argument is considered at all it follows that we will be required to consider the case on its merits as it is obviously too narrow a ground to consider only the fact that the election will be held and all the money spent for ballots before the record in the appeal can in due course reach this Court and the cause be submitted on briefs.

The solicitors for appellant and the Attorney General have in view of the public interest requested the Court to dispose of the cause on the merits upon the application for a pendentelite injunction under Section 5 of Art. V. Const.

The proposed amendment to the Constitution, as the same has been advertised and will be printed on the ballots unless this Court grants the injunction sought, reads as follows as the same appears in the transcript of the record:

"BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF FLORIDA:

"That the following amendment to Article V of the Constitution of this State relating to the Judiciary by adding thereto additional Section 45 as hereinafter set forth, be and the same is hereby agreed to and shall be submitted to the qualified voters of the State of Florida, for ratification or rejection at the next ensuing general election, that is to say, that an addtional section to be designated as Section 45 of Article V of the Constitution of Florida be adopted to read as follows, to-wit:

"Section 45.

"(a) There shall be no more than fifteen judicial circuits of the State of Florida to be appropriately designated, numbered and defined by a suitable law enacted by the Legislature for that purpose in accordance with the amendment; provided that no judicial circuit as defined by law hereunder shall embrace less than fifty thousand inhabitants according to the last preceding State or Federal Census; and provided further that no judicial circuit existing at the time of the ratification of this amendment shall be affected, altered or abolished, except in the manner provided in this amendment for carrying the same into execution, nor shall any existing Circuit Judge or State Attorney be disturbed in the tenure of his office until the expiration of any commission held by him on the date this amendment is ratified.

"(b) It shall be the duty of the Legislature at its next regular session after the amendment shall have been ratified to pass suitable laws to carry this amendment into effect, and to make effective the reapportionment and reduction of judicial circuits and Circuit Judges hereby contemplated.

"(c) There shall be one Circuit Judge to each Judicial Circuit, but additional Circuit Judges for Judicial Circuits may be provided for by law as authorized by Section 43 of the amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any one judicial circuit shall not exceed one Circuit Judge for every fifty thousand inhabitants, or major fraction thereof after this amendment shall have been put into effect.

"(d) In Circuits having more than one Judge the Legislature may designate the place of residence of any such additional Judge or Judges.

"(e) The reapportionment of Circuits and Judges thereof hereby provided for shall become effective sixty days after the Act providing for same shall have become a law."

That resolution originated in the Senate and was known as "Senate Joint Resolution No. 582."

It appears to have passed that body by the requisite three-fifths vote required by the Constitution on May 19, 1933.

After the resolution was proposed in the Senate it was amended, so the Senate Journal discloses, by adding as Sub-Section "d" the following:

"In Circuits having more than one Judge, the Legislature may designate the place of residence of any such additional Judge or Judges."

The resolution was agreed to as amended, the vote being thirty-seven yeas. No vote was cast in the negative.

The resolution was duly transmitted to the House on the following day and was entered in full upon the Journal of that House. It had been previously entered in full in the Senate Journal without Sub-Section "d" above quoted. That entry appears on the Journal of May 11, 1933. When it came on for consideration on May 19th it was again entered on the Journal, when Senator MacWilliams proposed the amendment to be known as "Sub-Section d" above quoted. The Journal discloses that the amendment was agreed to. The Senate Journal entry is as follows:

"Senator MacWilliams offered the following amendment to Senate Joint Resolution No. 582:

"In typewritten bill add as Sub-Section 'd' the following: 'In Circuits having more than one Judge, the Legislature may designate the place of residence of any such additional Judge or Judges.'

"Senator MacWilliams moved the adoption of the amendment.

"Which was agreed to.

"And the amendment was adopted."

Other proposed amendments were rejected. The Journal entry then continues as follows:

"Senator MacWilliams moved that the rules be further waived and Senate Joint Resolution No. 582, as amended, be read a third time in full and put upon its passage.

"Which was agreed to by a two-thirds vote.

"And Senate Joint Resolution No. 582, as amended, was read a third time in full.

"Upon the passage of the Joint Resolution, as amended, the roll was called and the vote was:"

The names of the Senators voting for the Resolution as amended are omitted from this statement of the proceedings. The Journal recites that Senate Joint Resolution as amended passed by the required constitutional three-fifths vote of all members elected to the Senate for the 1933 Session of the Florida Legislature and that the resolution as amended was ordered referred to the Committee on Engrossed Bills. The "Sub-Section 'd,' " constituting the amendment to the Resolution, was again entered on the Journal in the report of the Committee on Engrossed Bills and Senate Joint Resolution No. 582 contained in that report was ordered certified to the House of Representatives.

The Senate Joint Resolution with the amendment "Sub-Section 'd' " as offered by Senator MacWilliams and adopted by the Senate as "Senate Joint Resolution No. 582" was entered in full on the House Journal of May 22, 1933.

Now Section 1 of Article XVII of the Constitution provides that either branch of the Legislature at a regular session thereof may propose amendments to the Constitution and "if the same be agreed to by three-fifths of all the members elected to each House, such proposed amendments shall be entered upon their respective Journals with the yeas and nays."

That requirement was literally observed by the Senate, the yea and nay vote appearing on the Journal on the same day that the Resolution was entered.

The point in this case arises, so it is contended, out of the confusion arising from the entries in the House Journal.

The House Journal shows that when the Resolution was received from the Senate, containing "Sub-Section (d)" as the same was adopted by the Senate and entitled "Senate Joint Resolution No. 582," it was entered in full on the Journal of the House, read the first time by its title and referred to the Committee on Constitutional Amendments. See House Journal 1933, p. 666.

From then on the alleged confusion and departure from constitutional requirements occurs which it is contended renders the action of the members of the Legislature nugatory and of no effect insofar as the particular proposed constitutional amendment is involved.

The House Journal of June 1, 1933, discloses that under the title of Consideration of Special Order Calendar a Resolution entitled "Senate Joint Resolution No. 582" was entered on the Journal. That resolution so entered on that date was not "Senate Joint Resolution No. 582," as the same was transmitted from the Senate on May 20th and spread on the House Journal of May 22, 1933, in that it omitted the "Sub-Section d" as it was amended on motion of Senator MacWilliams.

The resolution as it was entered on the House Journal of May 22, 1933, was exactly as it was transmitted from the Senate and passed by that body.

The resolution as it appears on the House Journal of June 1, 1933, omits as stated the amendment offered in the Senate by Senator MacWilliams and adopted by the Senate. The resolution as entered on the House Journal of June 1, 1933, contained as Sub-Section (d) Sub-Section (e), as appears in the Senate Joint Resolution, and omits as stated the MacWilliams amendment.

The House Journal of June 1st discloses that Mr. Robineau moved to "strike out everything after the resolving clause and insert in lieu thereof" a resolution which he offered. That motion was agreed to by a three-fifths vote. Thereupon Mr. Robineau moved to "Strike out everything to resolving clause and insert in lieu thereof the following: 'A Joint Resolution proposing an amendment to Article V of the Constitution of the State of Florida relating to the Judiciary by adding thereto an additional Section to be known as "Section 46 of Article V"; providing for the establishment of Judicial Circuits of this State, providing for the appointment of the Judges and State Attorneys therefor, and providing for the creation of an Intermediate Appellate Court, composed of Circuit Judges, to be called The Court of Appeals, and fixing the jurisdiction of such of the Courts hereby provided for' ";

The motion to adopt that amendment was agreed to by a three-fifths vote. Mr. Worth then offered another amendment as follows:

"In Section 46-A, at the end of line 22 thereof, insert the following: intermediate or final."

That amendment was adopted by a three-fifths vote. So the House, in lieu of the resolution which was entered on the Journal as of June 1st, 1933, as "Senate Joint Resolution No. 582," adopted a different proposition from that which was spread on the Journal of June 1, 1933, entitled as there entered, "Senate Joint Resolution No. 582." The House Resolution was ordered referred to the Committee on Engrossed Bills. The Committee reported.

The House Journal of June 2, 1933, discloses that the Senate refused to concur in the House Amendment to "Senate Joint Resolution No. 582."

On that date there is again entered on the House Journal the same resolution as was entered on that Journal of June 1st as "Senate Joint Resolution No. 582," but which was not that resolution as adopted by the Senate. There is then entered on the Journal the amendments to which the House had agreed.

Thereupon the House agreed not to recede from its amendments.

The House then agreed to the appointment of a Committee of Three to confer with a like Committee of the Senate to adjust the differences existing between the two bodies as to the amendment to Senate Joint Resolution No. 582.

Thereupon on June 2, 1933, the House received a message from the Senate informing the House that it had appointed a Committee of Conference on Senate Joint Resolution No. 582. There was then entered on the Journal of the House a resolution in the same words as theretofore entered on the same day as Senate Joint Resolution No. 582, but which was not the same resolution as that adopted by the Senate and transmitted to the House and spread upon the Journal of the House on May 22, 1933. On the 2nd day of June the Senate by message advised the House that the Senate had changed the personnel of its Conference Committee on the Senate's part on Senate Joint Resolution No. 582. Thereupon there was again entered on the Journal the inaccurately copied resolution. Then on the same date the House Journal discloses that the Senate advised the House by message that the Senate had adopted the Joint Conference report on Senate Joint Resolution No. 582. The inaccurately copied resolution was again entered upon the House Journal. The Journal then contains an entry to the effect that the Conference Committee had agreed that the House of Representatives do recede from its amendment.

Then follows an entry upon the Journal of the proposed House amendment which had been adopted on motion of Mr. Robineau. Then the House Journal of June 2, 1933, contains for a second time the report of the Joint Conference Committee on Senate Joint Resolution No. 582 recommending that the House of Representatives do recede from its amendment. Then follows again the proposed House amendment as offered by Mr. Robineau and adopted by the House.

On motion of Mr. Scofield the report of the Joint Conference Committee on the Senate Joint Resolution was agreed to by a three-fifths vote.

It was then stated that the "question recurred on further consideration of Senate Joint Resolution No. 582 as originally introduced." The Journal states that the Resolution was read in full.

The Journal then contains the entry of the inaccurately copied resolution, omitting the MacWilliams amendment to the resolution as it was adopted by the Senate and transmitted to the House and by it entered upon its Journal. The Journal then contained the folowing entry: "The question recurred on the final adoption of Senate Joint Resolution No. 582 as originally introduced." The roll call was made and the yea and nay vote shown. There were ninety-three yeas and no nays and the Journal recited that "Senate Joint Resolution No. 582 was adopted, title as stated, by the constitutional three-fifths vote of all members elected to the House of Representatives for the 1933 session, Florida Legislature."

The same was ordered certified to the Senate.

On the same date, June 2nd, the House Journal shows that the Committee on Enrolled Bills to whom was referred Senate Joint Resolution No. 582 had examined the same and found it correctly enrolled, and presented the same for the signatures of the Speaker and Chief Clerk of the House. Later on the same day the Committee reported that the Resolution had been presented to the Governor for his approval.

Proposed amendments to the Constitution are required to be agreed to by three-fifths of all the members elected to each House. When that is accomplished the proposed amendment is said to be submitted. When adopted by either House it becomes the proposal of that House to amend the Constitution and when adopted by the requisite vote of each House it becomes the proposition of three-fifths of all the members or more of each House. Such proposals are not the exercise of an ordinary legislative function nor are they subject to the constitutional provisions regulating the introduction and passage of ordinary legislative enactments, although they may be proposed in the form of an ordinary legislative bill or in the form of a Joint Resolution. A proposal to amend the Constitution may have a title, although it is not necessary. Whenever a title is used it is for identification, verification and convenience and may be considered an interpretation of the amendment. It may be referred to merely by its title and number and a requirement applicable to ordinary legislation that the section as amended shall be set forth at full length does not apply. The constitutional requirements that bills shall be read on different days or at different times does not apply. See 12 C. J. 693; Hollingsworth v. Virginia, 3 Dallas 378, 1 L. Ed. 644; Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. Rep. 3; Cooney v. Foote, 142 Ga. 647, 83 S.E. Rep. 537; Ann. Cas. 1916 B, 1001; Warfield v. Vandiver, 101 Md. 78, 60 Atl. Rep. 538, 4 Ann. Cas. 692; Green v. Weller, 32 Miss. 650; Commonwealth v. Griest, 196 Pa. St. 396, 46 Atl. Rep. 505, 50 L. R. A. 568; McCall v. Wilkins, 145 Ga. 342, 89 S.E. Rep. 219; Hays v. Hays,5 Idaho 154, 47 P. 732; Townsend v. Smith, 144 Ga. 792, 87 S.E. Rep. 1039.

Rules of proceedings for acting on proposed amendments may be adopted by each house of the Legislature insofar as not in conflict with the Constitution. Crawford v. Gilchrist,supra.

It is not necessary for the Governor to concur in a proposed amendment to the Constitution. See 6 Rawle C. L 29; Hatch v. Stoneman, 66 Cal. 632, 6 Pac. Rep. 734; People, ex rel. Stewart v. Ramer, 62 Colo. 128, 160 Pac. Rep. 1032; Koehler v. Hill,60 Iowa 543, 14 N.W. Rep. 738; Warfield v. Vandiver, supra; Carton v. Secretary of State, 151 Mich. 337, 115 N.W. Rep. 429.

While the procedure prescribed by the Constitution for proposals to amend the Constitution must be duly followed and none of the requisite steps may be omitted, yet unless the courts are satisfied that the Constitution has been violated in the submission of a proposed amendment they should uphold it. People, ex rel. Elder v. Sours, 31 Colo. 369, 74 Pa. Rep. 167; 102 A. S. R. 34.

The substance more than the form is to be regarded in considering whether the complete system prescribed by Article XVII of the Constitution for submitting proposals to amend the Constitution has been observed.

Constitutional provisions derive their force not from the Legislature, but from the people in whom, under our theory of government, the power is inherent, and in the exercise of such power to make changes in the Constitution there are practically no limits except those contained in the Federal Constitution when such proposals are made in the prescribed manner. Even in case some required form of procedure has been omitted by the Legislature in submitting a proposal to amend the Constitution, but the same had been advertised or the notices published and the people have approved it at an election the amendment becomes a valid part of the Constitution. See West v. State,50 Fla. 154, 39 So.2d Rep. 412.

The difficulties which lie in the way of the people to amend the Constitution seem to emphasize the reasonableness of the rule that too strict a construction of the modes of procedure prescribed by legislative regulations and forms for the exercise of the power to submit a proposal to amend is not advisable or consistent with our institutions where the Constitution itself has provided a complete system for that purpose. That doctrine may in some measure counteract the extreme view of the older school of statesmen who held that the Constitution was designed to check the propensity of the legislative department to intrude upon the duties and absorb the powers of other departments. The opportunity should be afforded the people, with the least amount of technical departmental obstructions consistent with the letter and spirit of the constitutional provisions on the subject, to express their desire as to a supposedly needed change in the Constitution.

With those views in mind it is consistent with the constitutional requirement that the proposed amendment be entered upon the Journal of each House to say that the entry of Senate Joint Resolution No. 582 in the Journal of the House of Representatives on May 22, 1933, page 666 of the Journal, was a complete compliance with the requirements of the Constitution.

That resolution, as it was transmitted to the House from the Senate on Saturday, May 20, 1933, and entitled Senate Joint Resolution No. 582, was the only proposal submitted in the House of Representatives to amend the Constitution in the matter dealt with by that proposition except the resolution offered by Mr. Robineau as referred to above and adopted by the House and from which it later receded.

When the House receded from the action it took on the Robineau resolution there was no other proposition before the House on that subject but Senate Joint Resolution No. 582 as correctly enrolled on the Journal of that House on the 22nd day of May at page 666. The mere fact that several times thereafter the resolution was improperly copied in the Journal could not in the slightest degree affect the substance or verbiage of the resolution as the same had been submitted by the Senate. It is idle to contend that the carelessness of some attache of the House or Clerk whose duty it was to make correct entries in the Journal changed the proposition as submitted by the Senate in words and substance by merely incorrectly copying the Senate proposal at other places in the Journal at different times. The recording of the proposal in the Journal is required by the Constitution to be done but once. All other efforts to correctly enter it in the Journal were a work of supererogation and an unnecessary expense and an increasing of the cost of the State for printing. The futile effort to enter the proposal at the various times mentioned showed upon its face a mere clerical misprision in copying the resolution.

Each time that it was considered it was referred to as Senate Joint Resolution No. 582, which, as pointed out above, was a sufficient reference to the proposal as it was submitted by the Senate.

The phrase "as originally introduced" twice used in the Journal of June 2, 1933, in connection with the statement that the question recurred on further consideration of Senate Joint Resolution No. 582 and the further statement that "The question recurred on the final adoption of Senate Joint Resolution No. 582" was inaccurate language in that the word "introduced," a term used in connection with the introduction of bills in the business of ordinary legislation, does not accurately describe a proposal to amend the Constitution.

The proposal is complete when voted on and adopted. No significance whatever attaches to the contents or verbal expressions which may have been used in writing or orally by the individual member or members who first submitted the proposal. When the Senate finally agreed to the proposal which then assumed the form of a Resolution and was named and numbered for identification as Senate Resolution No. 582 it became a definite proposal to amend the Constitution so far as the Senate could submit such a proposal. When it came to the House of Representatives in due course of business and was duly and correctly entered on the Journal of the House it was not an "introduction" in the House in the sense that a bill in ordinary legislative activities is introduced. It was merely a proposal to amend the Constitution as to which the House would agree or not agree. So the term "as originally introduced" added little if anything to the identity of the proposal as the same was submitted by the Senate and was then before the House.

Section 1 of Article XVII of the Constitution dealing with amendments requires that if the proposal "be agreed to by three-fifths of all members elected to each House, such proposed amendments shall be entered upon their respective Journals with the yeas and nays," etc.

The contention that the entry on the Journal of each House of the proposal to amend must be on the same page or paragraph of the Journal in which the yea and nay vote is recorded is to insist upon a technical construction of the language of the Constitution justified by neither logic nor the advancement of the people's rights or understanding by by the members of the particular House of their own action.

All that is required is that the members of each House shall have before them the definite proposal and that they agree to it by the requisite vote to constitute a proposal to amend. The entry on the Journal of the proposal satisfies the first requirement and the entry of the yea and nay vote when the proposal is adopted satisfies the second.

The resolution which is being published by the Secretary of State is the same resolution which is designated in the Journals of each House as Senate Joint Resolution No. 582 and correctly entered upon the House Journal of May 22, 1933.

We have read with much care and deep appreciation the briefs of the learned counsel for the appellant, but we are constrained to hold in the light of the views above expressed that the authorities cited in the brief of appellant are not applicable to the facts as presented in this case.

We do not agree with the Attorney General that the many superabundant and wholly unnecessary entries in the House Journal referring to Senate Joint Resolution No. 582 produces any ambiguity as to the action taken by the House on the Senate's proposal to amend. To say that an ambiguity exists in this case as to the action of the House would, it seems to us, attribute to a superabundant and wholly unnecessary clerical action too much of importance and influence.

In the view we have of the case it is unnecessary to refer to the "Engrossed Resolution" as evidence of the action of the two Houses.

The Constitution relating to amendments does not deal with Engrossed Resolutions. The proposal to amend when entered upon the Journal of each House and agreed to by each House by the requisite vote, becomes automatically a proposition to amend the Constitution, and we presume that the Secretary of State when he comes to publishing notices of such proposals will, even if he uses an Engrossed Resolution as evidence of what action was taken, also check it with the Journal entries.

We deem it unnecessary in this case to resort to the "Engrossed Resolution" as supplementary evidence of the action taken by each House.

In this view of the question presented we conclude that the injunctions should be denied and the decree of the Chancellor affirmed. So ordered.

Injunction denied and decree affirmed.

WHITFIELD and TERRELL and BUFORD, J. J., concur.

DAVIS, C. J., and BROWN, J., dissent.