State ex rel. Attorney-General v. Green , 36 Fla. 154 ( 1895 )

Mabry, C. J.:

This case is here on writ of error from a final judgment of the Circuit Court of Escambia county quashing an information in quo warranto filed by the Attorney-General in said court against the defendant in ■error'. The information alleges, in substance, that since •the 7th day of June, 1895, the said'L. Hilton Green; without authority of law has used, exercised and enjoyed the franchise, functions and power's of councilman 'of precinct 14 of • the city of Pensacola, otherwise -designated as District Commissioner of district No. 14 -of the provisional municipality of Pensacola, by virtue ■of an election held in and for said city on the 4th day of June, 1895, in alleged compliance with the provisions of an alleged act of the Legislature of Florida, ■entitled, at the time of signing thereof by the Governor, ‘ ‘An act to provide for the creation of the city of Pensacola, now known as the Pro visional "Municipality ■of Pensacola, and for the government of the said city •of Pensacola, and to provide for its officers and their terms of office, and to provide for the support and maintenance of said government and improvement of the said city,” approved May 27th, 1895; that at said ■election said L. Hilton Green received the highest num ber of votes cast for the alleged office of councilman for said precinct, which is a precinct of said county entirely within the said city, or provisional municipality of Pensacola, and identical with" election district number 14 of the provisional municipality of Pensacola, under Chapter 4303 laws of Florida, under which provision is made for the election of a district commissioner, with powers and functions coextensive and identical with those usurped by L. Hilton Green. Further, that the signing and approval of said alleged act by the Governor was not effectual in law to authorize the said election, because, as shown by the Journals of the Legislature, said supposed act never becam e a law of the State of Florida,- and,because the title to the same is insufficient to make said act authoritative for holding said election, and because the supposed act was ineffectual to create the said proposed city of Pensacola, otherwise known as the provisional municipality of Pensacola. That said election was not conducted in accordance with the provisions of the general election law existing at the last State election, in this, that no publication was made of the names of the inspectors and clerks of election for fifteen" days; as required by section 174 of the Revised Statutes, and that all ballots cast at said election, and all that were cast for said L. Hilton Green, were in such form as provided by the election law existing at the last general election, and not otherwise, except that upon each ballot was the name of each person voted for by the elector for the several officers voted for at said election, all of which were deposited in a single balLot box, and that no proclamation was made after the completion of the-canvass as required by section 184 of the Revised Statutes. Also that said L. Hilton Green did not at said election receive any vote for said office in form conforming to that provided by the general election law existing at the time of the passage of the alleged act of May 27th, 1895, no official ballots were provided for or used at said election, and there was no ordinance regulating or providing for municipal elections in said city or provisional municipality of Pensacola.

The information further states that one John Cos-grove was the legal incumbent of the office of district commissioner of said district numbpr 14 at the time of said election, and as no one had been legally elected to succeed him in said office, he was legally entitled to use, exercise and enjoy the franchise, functions and powers of said office which had been usurped, in the manner stated, by the said L. Hilton Green.

A demurrer to the information was sustained by the Circuit Court, and no leave to amend being asked for,, the information was quashed.

The information, it will be seen, shows that an election was held under the act of May 27th, 1895, being-Chapter 4518, and that at said election the defendant in error received a majority of the votes cast for the office alleged to have been usurped by him. The legality of the election and the right of defendant in error to hold the office in question by virtue of the said election, is challenged here upon alleged grounds of infirmity in the passage of the law, and also the non-observance of certain requirements of the general election law of 1895.

It is claimed that the act of May 27th, 1895, Chapter 4513, is void, and conferred no authority to hold said election for the reason that the title of the act as passed by the Legislature and signed by the respective officers-thereof, differs materially from the title of the act approved by the Governor, as;shown by the enrolled bill in the office of the Secretary of State. The act in question was introduced in the Senate as “Senate Bill Ño. 288: A bill to be entitled an act to provide for the creation of the city of Pensacola, now known as the provisional municipality of Pensacola, Florida, and for the government of said city of Pensacola, to provide for the support and maintenance of said government and improvement of said city.” (Senate Journal, page 564). The bill was referred to a committee' and reported back to the Senate by the same title, and without giving in detail the Journal record of the bill as it passed through both Houses of the Legislature, it is sufficient to state that whenever referred to in the Journals of either House, up to and including the signing of the same by the presiding officers thereof, it is designated as Senate Bill No. 288, with the title stated. In the communication of the Governor to the Senate* informing that body of the approval of the bill he-designates it as “An act to provide for the creation of the city of Pensacola, now known as the provisional municipality of Pensacola, and for the government of the said city of Pensacola, and to provide for its officers- and their terms’ of office, and to provide for the support and maintenance of said government and improvement of said city.” The title to the engrossed and •enrolled bills found in the office of the Secretary of State is: “An act to provide for the creation of the city of Pensacola, now known as the provisional municipality of Pensacola, and for the government of said city of Pensacola, and to provide for its officers and dJieir terms of office, and to provide for the support and maintenance of said government and improvement of said city.” It will be seen that the italicised words in the title to the enrolled bill, signed by the •Governor, are absent from the title to the bill as it passed the two Houses of the Legislature, as shown ¡by their journal entries. It is claimed for the plaintiff in error that the journal record controls as to thé •evidence of what was the title of the bill while on its passage through both bodies, and that this evidence is superior to .that of the engrossed or enrolled bills found in the office of the Secretary of State. There are two ■conflicting views held by the decisions on this subject. Under constitutional requirements that journals of the proceedings of the legislative bodies shall be kept and published, it has been held in many decisions that where the journal entries, as to the legislative proceedings, are explicit, and conflict even with legislative, .acts regularly authenticated, the journals are superior, ,and the courts will be governed by them as to matters .dearly, explicitly and , affirmatively stated therein. The other view, maintained by high authority, is that the legislative act itself embodied in a bill engrossed and enrolled, and bearing the proper official signatures, is of higher dignity than the journals, and will override them. This court has placed itself on the side of those maintaining the view first stated (State ex rel. vs. Brown, 20 Fla. 407; State ex rel. vs. Deal, 24 Fla. 293; 4 South. Rep. 899; Mathis vs. State, 31 Fla. 291; 12 South. Rep. 681); and as there is ample authority1 to sustain this view, we will not now make any departure. It is generally held that the plain constitutional injunctions as to the mode and manner of enacting laws are mandatory, and the equally high authority that journals of the proceedings shall be kept, strengthens the view that the evidence of a compliance with such injunctions should be found in the-journals. The inconvenience and danger resulting incidentally from the rule that the journals when clear- and explicit as to matters proper to be incorporated therein will control, can be guarded against by a proper observance of the prescribed procedure and diligent attention to the making and preservation of the requisite journal evidence. But while the journáls will control, under the rules announced by this court, as to-the legislative proceedings, it is proper to observe, in language used by Judge Cooley, and quoted by this-court, that whenever the Legislature is acting in the apparent performance of its legal functions, every reasonable presumption is to be made in favor of the-action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either House has exceeded its authority or disregarded-a constitutional requirement in the passage of legislative acts, unless where the Constitution has expressly required the journals to show the action taken, as, for-instance, where it requires the yeas and nays to be entered. State ex rel. vs. Brown, 20 Fla. 407. As all bills and joint resolutions that pass both Houses of the Legislature are required to be signed by their respective-presiding officers, and also by the secretary of the-Senate and clerk of the House of Representatives, an act thus authenticated and approved by the .Governor will not be set aside unless the journals affirmatively and explicitly show that the constitutional requirements have not been observed, except where the Constitution requires the journals to show the action taken, and then their silence will be fatal. An examination of the journals of the two Houses of the Legislature, which must control us. leaves no room to doubt that the title of the act as it passed both Houses differs, in the particulars mentioned, from the title of the enrolled bill approved by the Governor. The journal evidence of this fact is affirmative and explicit.

It is settled by this court that the Governor acts as .a part of the law-making power of the State in approving bills passed by the Legislature, and unless substantially the same bill that passed the two Houses of the Legislature is submitted to the Governor for his approval, it can not become a law by his approval, or silence, or against his approval. Advisory Opinion, 23 Fla. 297, 6 South. Rep. 925; State ex rel. vs. Deal, 24 Fla. 293, 4 South. Rep. 899.

Our Constitution (Article III, Section 16) provides •that “each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title.” Under this provision the title of an act is an essential and important part thereof. Binz vs. Weber, 81 Ill. 288; Johnson vs. People, 83 Ill. 431; Stein vs. Leeper, 78 Ala. 517; State ex rel. Gonzales vs. Palmes, 23 Fla. 620, 3 South. Rep. 171. The aim and purpose of incorporating into organic laws the constitutional provision mentioned is fully disclosed in the judicial discussions on the subject. They are summed up by Judge Cooley to be: “first, to prevent hodge-podge or ‘log-rolling’ legislation; second, to prevent surprise or fraud upon the Legislature by means of provisions in bills of which the titles gave no intimation, ánd which might therefore be overlooked and carelessly and unintentionally adopted; and, third, to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire.” Cooley’s Constitutional Limitations (6th ed.), page 172; O’Leary vs. County of Cook, 28 Ill. 534; Mayor, etc. vs. State, 5 Ga. 26; Harland vs. Territory of Washington, 3 Wash. Ter. 131; Sutherland on Statutory Construction, sec. 76 et seq. The office of the title of an act under constitutions like ours, it is evident, is to control the subject of an act of legislation, and to restrict its provisions to matter properly ■connected therewith. It may be that the necessity and reasons for the requirement that the subject of an act shall be restricted to the subject expressed in the title as it passes the legislative bodies do not exist with the same urgency as applied to the approval of the law by the Governor, but still it is essential that an act have a title which will have a controlling effect over the subject-matter of the act, and if the difference between the title of an act as it passed the legislative bodies and when approved by the Governor, is so essential as to affect the entire act, it can not be said that the same act received the sanction of the entire legislative department of the State. If such difference is immaterial and unsubstantial, it can not annul the law. Plummer vs. People, 74 Ill. 361; People ex rel. Gale vs. Supervisor of Onondago, 16 Mich. 254; Stein vs. Leeper, supra. As stated in State ex rel. vs. Deal, supra, unless substantially the same bill as was passed by the Legislature is submitted to the Governor for his approval or disapproval, it can not become a law either by his approval or silence, or against his approval. Moog vs. Randolph, 77 Ala. 597. It is also' a familiar role of constitutional construction that although a portion of an act be void, it will not necessarily render the entire act inoperative. If the good, and the .bad can be separated, and the legislative purpose as expressed in the valid portion be given effect to independently of the void part, so much of the act as is constitutional will be carried out. This rule has often been recognized by this court. English vs. State, 31 Fla. 340, 12 South. Rep. 691; State ex rel. vs. Dillon, 32 Fla. 545, 14 South. Rep. 383; City of Tampa vs. Salomonson, 35 Fla. 446, 17 South. Rep. 581. Likewise, if an enrolled bill approved by the Governor contain matter not embraced therein when it passed the two Houses of the Legislature, it will not necessarily follow that the entire act is void. If the portion of the act that has received the approval of the entire legislative department can be separated from the other-portion, and the one is not dependent in any manner upon the other, that which has been constitutionally enacted may be enforced as law. In other words, the same rule as to separating matter in an act that has received the joint approval of all the legislative departments, but one part is constitutional, and the other not, will apply to an act where matter finds its way into a bill enrolled for the approval of the Governor that did exist therein when passed upon by either or both of the two Houses of the Legislature. That this-is the rule where improper matter gets into the body of the act, is fully recognized in the case of State ex rel. vs. Deal, supra, and that the same rule applies where such matter appears in the title of an act, is fully decided in Stein vs. Leeper, and Binz vs. Weber, supra, as well as in other cases.

In view of the rule stated, we must determine whether the words found in the enrolled bill approved by the Governor, and shown by the journals, not to have been in the title of the act passed by the two Houses of the Legislature, vitiate the entire act. The provisions in the title, approved by the entire legislative department, “to provide for the creation of the city of Pensacola, now known as the provisional municipality of Pensacola, and for the government of the said city of Pensacola,” are broad and ample enough to authorize the incorporation into the body of the act provisions for the election of municipal officers for the city. In the light of the decisions on the subject we entertain no doubt about this proposition. Acts creating corporations afford many illustrations of one general subject capable of many divisions. The title of an act to create a named corporation and provide for its government, does not confine the act itself to the simple creation of the corporate entity, but under such a title the act can go on and define the powers of the corporation and regulate their exercises. City of Jacksonville vs. Basnett, 20 Fla. 525; State ex rel. Gonzalez vs. Palmes, 23 Fla. 620, 3 South Rep. 171; People vs. Mahaney, 13 Mich. 481; State ex rel. Cole vs. New Whatcom, 3 Wash. 7, 27 Pac. Rep. 1020; Sutherland on Statutory Construction, sec. 94.

Provisions creating strictly municipal offices and regulating their election can be incorporated into the act under the title stated, and the added words to the title, “to provide for its officers and their terms of office,” are not necessary to permit such provisions. In fact, such added words are entirely immaterial and superfluous so far as an expression of the subject in the title is required to authorize legislation in reference to the election of municipal officers. Nor can it be said, on an examination of the entire act, that the words “to provide for its officers and their terms of office,” add anything material to any provision in the act inseparably connected with the provisions in reference to the election of municipal officers for the «city. Every provision in reference to this subject is fully covered by the title as we are considering it, and that was approved by both the Legislature and the «Governor, and we discover nothing in the body of the act affecting the election of municipal officers that is not entirely separable from, and independent of, any ■other provision that can be claimed to be authorized ■by the rejected words from the title to the enrolled bill.

. What we have said in reference to the title to the act in question, disposes of, in a great measure, the further contention that the title of the enrolled bill, ■conceding that to be the true title, is not sufficient to authorize the provisions found in the body of the act in reference to the election of municipal officers. We have just concluded that the added words in the title to the enrolled bill effected no material change in the title of the act as it passed both Houses of the Legislature, so far as the election of municipal officers is concerned, and the force of the objection, if it has any, will apply equally to the title of the act as we are now ■considering it. This objection is based upon the view «that considering the past legislation in reference to the ■city of Pensacola, the title to the act indicated simply purpose to remove both the name and other vestiges the provisional character of the govornment of the •city and “place her in line with other Florida municipal governments,” and that there is nothing in the title that indicated a purpose to accomplish more than this.

The constitutional requirement is that each law shall ■embrace but one subject and matter properly connected therewith, and that the subject shall be briefly expressed in the title. This clause should be construed in furtherance of the objects intended to be accomplished by it. What those objects are we have already seen. If the title is broad enough to cover the provisions in the body of the act, and to give notice of the subject-matter of legislation, there is no foundation for the court to annul the law. A title may be general “so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection,” or it may be made as restrictive as the Legislature may determine. Cooley’s Constitutional Limitations (6th ed.), page 173; State ex rel Gonzalez vs. Palmes, 23 Fla. 620, 3 South. Rep. 171. Under the authorities already cited, the provisions of the title to provide for the creation of the city of Pensacola and for the government of said city, are ample to authorize the provisions in the act in reference to the election of municipal officers for the city, and such a title is to give notice that the Legislature will enact such provisions.

The act under which the election in question was held was approved by the Governor on the 27th day of May, 1895, and took effect at that time. Section 152 provides that the first election under the act shall be held on the first Tuesday in June, 1895, and biennially thereafter on the same day. Also that “the election shall be held under the general law governing State elections, existing at the last State election, and city ordinances, with such exceptions as are herein proviclecl. Every elector, and only such as were qualified at the last State election, shall be qualified to vote in this election, provided that in this, the first election under this act, such electors as were qualified at the-last State election, but have since then been disqualified by reason of the amendment of section 1, Article VI, of the Constitution, shall be allowed to vote upon-presentation of their certificates of naturalization.” On the 25th day of May, 1895, the Governor approved an act providing for the registration of all legally qualified voters in the several counties of the State, and to provide for general and special elections, and to repeal all laws in conflict therewith. This act took, effect upon its approval by the Governor (Chapter 4328, laws of 1895). It is contended that the Pensacola charter bill seeks to revive, by reference only, the election law in force at the time of the prior State election, which had been repealed when the former act was approved. This contention is based upon the clause in our Constitution providing that “no law shall be amended or revised by reference to its title only; but in such case the act, as revised, or section, as amended,, shall be re-enacted and published at length.” It will be observed that the provision mentioned says that no law shall be amended or revised by reference to its title only, and not that no law shall be revived in the-manner indicated. Some constitutions expressly provide that no law shall be amended or revived by reference to its title only, but ours does not. It was neither the purpose nor the effect of the act in question to amend or revise the election law in force at the-preceding State election, but simply to adopt the provisions of that law as the rule for the government of the municipal election under the act. Our further examination of this subject leaves no doubt in our minds that the Legislature has the power to make the rules of any law, whether statutory or common law, existing or repealed at the time, operative on any subject of legislation when the Legislature can otherwise act on such subject. The adoption or revival of the acts in reference to pleading and practice in the courts of this State in force prior to the adoption of the code, has always been considered as properly done, and it is a case in point. An examination of the authorities cited, and a careful review of the decision in the case of Mathis vs. State, 31 Fla. 291, 12 South. Rep. 681, convinces us that the conclusion reached in that case is correct.

The other objection under this head, that if it be competent for the Legislature to revive a repealed law by reference only, the intention to do so should be expressed in the title, is without merit. As we have stated, it was competent under the proper title of the act of May 27th, 1895, to provide for the election of the ’municipal officers of the city of Pensacola, and that such matter was properly connected with the subject expressed in the title. In speaking of provisions of constitutions on the subject similar to the one in ours, Judge Cooley says (Const. Lim., page 172); “The general purpose for the provisions is accomplished when a law has but one general object, which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible.” Gibson vs. State, 16 Fla. 291; Ex parte Wells, 21 Fla. 280; Holton vs. State, 28 Fla. 303, 9 South. Rep. 716; Sutherland on Statutory Construction, sec. 88. The objection raised in the supplemental brief of counsel for plaintiff in error is met by what has been said.

The only remaining contention to be noticed is, that the form of the ballot used at the election on June 4th was not such as is prescribed by the general election, law approved May 25th, 1895, Chapter 4328. It is contended that the official ballot prescribed by the general election law of 1895 was required by the Pensacola act to be used, and that it is conceded on the pleadings that such ballot was not used at the election in question. The last clause of section 153 of Chapter 4513 (the Pensacola act) provides that “the form of ballot used shall conform with the requirements of existing State laws as herein provided.” This must be construed to mean according to the form «of ballot required by the act of 1889, existing at the time of the-preceding State election, and not according to the general election law of 1895. That this was the purpose of the Legislature is evident. In the section preceding the one in which the form of the ballot is mentioned it is expressly provided that the election should be held under the general law governing State elections existing at the last State election, and then it is further provided in the following section that the form of the ballot shall conform to the requirements of existing State laws as therein provided. It is furthermore seen from the journals that when the Pensacola bill was introduced, and during most of the time occupied in its passage, the election law existing at the former State election had not been repealed. Taking sections 152 and 153 together, the proper construction to be placed on them is, that the form of ballot required is that prescribed by the act of 1889, the general election law existing at the then last State election.

What we have said is enough to cover the objections urged here on behalf of plaintiff in error, and after' carefully considering all the questions raised on the record our conclusion is that the judgment must be affirmed. Order to be entered accordingly.