State Ex Rel. Lane Drug Stores, Inc. v. Simpson

I did not participate in the first hearing of any of the above styled cases except in that of the one entitled State, ex rel. X-Cel Stores, v. Lee, as Comptroller (decided January 14, 1936, opinion by Mr. Justice DAVIS).

In that case the relator is alleged to be engaged in the business of a retail dealer in hay, grain, feed, seeds, insecticides, fungicides and fertilizers; that on October 1, 1935, it operated stores in the cities of Tampa, Plant City, Orlando and Winter Haven; that it made application in due form to the Comptroller for a license under the provisions of Chapter 16071, Laws of Florida, 1933, but the Comptroller declined to issue the license upon the ground that the passage of Senate Bill No. 724 (Chap. 16848, Laws of Florida, 1935) repealed Chapter 16071, supra. The Act of 1935, it was contended by the Comptroller, required the payment of a greater sum by the relator for the privilege of continuing or engaging in the business of a retailer as defined in that Act.

The relator contended that Chapter 16071, supra, had not been repealed because Senate Bill No. 724 (Chap. 16848, supra) had never been passed by the Legislature of Florida in the manner required by Article III of the Constitution of Florida. It was also contended that the Act of 1935 was void in that if enforced in would result in the X-Cel Stores, Inc., being deprived of property without due process of law in violation of Section 12 of the Declaration of Rights of the Florida Constitution and of Section 1 of Article XIV of the Constitution of the United States.

The Comptroller refused to agree with that contention and insisted that the X-Cel Stores comply with the terms of the 1935 Act. Thereupon the X-Cel Stores, Inc., a corporation, applied to this Court for an alternative writ of mandamus against the Comptroller to compel him to file the corporation's application for a license or permit to do business in Florida and to issue the same under the provisions of Chapter 16071, supra.

The alternative writ of mandamus was issued on October 3, 1935, by Division A of this Court. The respondent answered the alternative writ on October 12, 1935. The answer averred the validity of Chapter 16848, laws of 1935 (Senate Bill 724). The answer comprises eighty-five pages of typewritten matter and is a full denial in detail of the allegations of the alternative writ and a lengthy argument in support of the wisdom, reasonableness and propriety of the latter Act.

On the 18th of October a motion to strike certain portions of the answer and a demurrer to the answer were filed.

On January 14, 1936, this Court handed down its judgment in the case. The opinion was written by Mr. Justice DAVIS, all members of the Court participating. Mr. Justice BROWN dissented without opinion.

The Court held that the cases which had preceded the X-Cel Stores, Inc., case and which had been decided by this Court had held adversely to the relator's contention upon the constitutionality of the Act as a valid exercise of legislative power, assuming that the Act had validly passed; that the question presented therefore was whether the Legislature in regular session had observed the requirements of the Constitution in the matter of the passage of the Act by the two Houses of the Legislature of the Session of 1935 "so as to become a constitutionally enacted law in the precise form in which it was in due course signed by the Governor and filed in the office of the Secretary of State."

Mr. Justice DAVIS discussed very fully and most carefully the question presented.

An oral argument was heard before the Court on November 4, 1935, Honorable Frank A. Smith, Judge of the Ninth Judicial Circuit, sitting in place of the writer, who was absent on account of illness, but when the case was decided the writer had returned to his duties and participated in the decision.

A rehearing was granted and the cause was again argued upon all points involved. In that argument and in the briefs which were filed by counsel for relator it was earnestly asserted that an inspection of the Journals of the two Houses will reveal conclusively that the House never concurred in the bill as passed by the Senate, that while the bill which originated in the Senate was in its control, it was amended by the Senate both in its title and in Section One; that these amendments were not receded from by the Senate. No Conference Committee ever attempted to reconcile the difference between the bill as sent to the House and the amendments to its title and Section One as adopted by the Senate after it had with the House amendments been certified by the House to the Senate. So the relator definitely and clearly maintains that the two Houses did not pass the same bill and that neither House finally passed the bill as it was enrolled and signed.

The statement of facts given in the brief of Messrs. Phipps and Williams, of counsel for relator in this case, as also the brief of Messrs. Adams and Adair, of counsel for relators in the quo warranto proceeding, is not so complete as the journals of the Legislature make possible. Indeed counsel understate the case. The history of the attempted legislation as revealed by the journals is much more remarkable than pointed out in the briefs. It is not my purpose to give a lengthy account of that history, nor even attempt a complete synopsis of it, but I will undertake to give a statement of ultimate facts.

When the bill, which was introduced in the Senate, was considered by that body several amendments, eight in number, were adopted. The bill passed the Senate as amended. It was then referred to the Committee on Engrossed Bills, which committee engrossed the same together with the amendments which had been adopted. In that state it was certified to the House.

The message sent to the House was that the Senate had passed Senate Bill No. 724. It is not clear what was submitted to the House, whether the bill as originally proposed in the Senate or that bill and amendments separately engrossed by the Senate Committee.

The House proceeded to consider the bill and adopted eleven amendments. The bill passed the House as amended in the House. There is nothing to show that the amendments adopted in the Senate were considered at all, or whether they were submitted to the House or that the bill as introduced was recast to include the Senate amendments. The House caused the bill as it had passed the House with its amendments to be engrossed. The House then returned the bill to the Senate with only seven of the eleven amendments which the House had adopted. The Senate concurred in amendments 2, 3 and 4, but refused to concur in amendments 1, 5, 6 and 7. The Senate, however, advised the House that it had concurred in amendment 1 as well as amendments 2, 3 and 4 and that it had not concurred in amendments 5, 6 and 7.

The House refused to recede from its amendments 5, 6 and 7, so a conference committee was appointed. One of the Senate amendments was in relation to a division of the revenue to be collected and provided that one-fifth of it should be deposited in a "Relief Pension Fund."

The conference committee on the part of the House was directed to adjust the differences existing on House Amendments Nos. 5, 6 and 7 to the bill. The committee on the part of the Senate was required to do the same thing, that is to say, to adjust the differences existing between the two Houses on House Amendments 5, 6 and 7.

The first report of that committee was adopted by the Senate. Another motion was made and adopted that each of the amendments as set forth in the report be adopted, which was agreed to and the amendments were adopted. The first report of the committee seemed never to have reached the House. The Senate, however, reconsidered the vote by which it adopted the report and on motion recommitted the majority conference committee report for further consideration. The second report was a practical revision in substance of the bill so far as Sections 4 and 15 were involved, House amendments 5 and 6. The committee recommended that the House recede from its amendments 1 and 7 which related to Section 1 and the title of the Act, but the report did not recommend that the Senate recede from the amendments which it had adopted. That report was adopted by the House by a yea and nay vote and the same was spread on the House Journal and that action was certified to the Senate. The Senate did not adopt the second Joint Conference Committee report by a yea and nay vote and no such vote was spread on the journals of the Senate.

The four amendments which were adopted by the House but never considered by the Senate were never involved in the difference between the two Houses. The amendment offered by Senator Gomez relating to a deposit of one-fifth of the revenue in a "Relief Pension Fund" was never receded from by the Senate except insofar as it was affected by a recasting by the Committee of Section Fifteen, nor did the House agree to it, and the yea and nay vote was not taken in the Senate on the final passage of the bill as the same was recast by the Joint Conference Committee. If the Committee Report is considered as a new bill, then there was no adoption of it by the Senate by a yea and nay vote. If it was merely an amendment to the bill as originally proposed in the Senate then the adoption of the amendment left undisposed of both the House and Senate amendments.

I think, therefore, that the bill as it was finally presented to the Governor was not adopted in the House because the four amendments to it as made by that House and never reported to the Senate were not passed on by that body, and the three amendments proposed by the House and adopted by the Senate except insofar as they were affected by the second report made by the Joint Conference Committee were never disposed of, nor were the Senate amendments which were adopted receded from or disposed of, and the substantially new bill proposed by the second report of the Joint Conference Committee was never adopted by the Senate by a yea and nay vote.

It is impossible to construct the bill as it was presented to the Governor from the journals of the two Houses.

No definite, certain and perfectly constructed bill was adopted by either House. No yea and nay vote on the final passage of such a bill was taken in either House. The document which was at last presented to the Governor is a synthetic legislative and committee production into which is written, by what authority no record discloses, words and sentences expressing what may have been regarded as the effect of the adoption of amendments and committee recommendations. There is no authority in this State in the nature of judicial decisions which declares such attempted legislation to be valid.

The situation existing here is not the same as that which existed in the case of Carlton v. Mathews, 103 Fla. 301, 137 South. Rep. 815.

Section 17 of Article III of the Constitution requires: "The vote on the final passage of every bill or joint resolution shall be taken by yeas and nays, to be entered on the journal of each House."

The purpose of that constitutional provision is to require the members of each House present to identify themselves by a definite vote appearing of record with the enactment of the law or with the view which requires its rejection. It is the last act of the members in the passage of a bill, but not the last act in its ultimate production as a legislative enactment.

The Constitution requires identity of the members present with the fate of the proposed legislation, that its passage or defeat may be established in an orderly and certain manner and not that the identity of the members may be submerged in a conglomerate viva voce vote in which the identity of no person voting can be established and the passage or defeat of the bill may be determined by the verbal declaration of the presiding officer. The purpose of the constitutional requirement is also to preserve a record evidence of the legislative enactment of which the Court takes judicial knowledge. See State v. Brown, 20 Fla. 407; State, ex rel. Boyd, v. Deal, 24 Fla. 293, 4 South. Rep. 899; Amos v. Moseley, 74 Fla. 555, 77 South. Rep. 619.

This case is distinguished from the case of State v. Dillon,42 Fla. 95, 28 South. Rep. 781, in that the bill under consideration here was not one in which the bill passed in one house and was amended and passed in the other, and such amendments were adopted by the House in which the bill originated, but it was one in which the material parts of the bill were amended in the House to which it was submitted by the House in which it originated and the latter House rejected such amendments and failed to consider others and concurred in still other amendments, after which a joint conference committee appointed to adjust the differences existing between the two Houses upon the material parts of the originally proposed legislation presented a new and different bill differing widely in substance and purpose and ignoring material amendments which had been considered and adopted by each House respectively and not agreed to by the other.

No parallel exists in the legislative history of this State as shown by the judicial interpretation of legislative activities, therefore there is no case in the judicial records of this State which may be cited in support of the validity of such attempted legislation.

I am of the opinion that the constitutional provision that the"vote on the final passage of every bill" shall be taken by yeas and nays and entered on the journal of each House applies in this case and was not observed; that it required the Senate vote on the Joint Conference Committee report to be taken by yeas and nays and spread in the journal, which was not done. See Norman v. Kentucky Board of Managers of World's Columbian Exposition,93 Ky. 537, 20 S.W. Rep. 901, 18 L.R.A. 556; Cohen v. Kingsley,5 Idaho 416, 49 Pac. Rep. 985, 38 L.R.A. 74; Allen v. City of Raleigh, 181 N.C. 453, 107 S.E. Rep. 463.

To sum up the conditions existing in the alleged passage of the bill: The House never voted upon the title of the Act as it is said to have passed; certain amendments adopted by the House when first considered were never considered by the Senate, nor indeed ever submitted to the Senate for consideration; the House never passed upon the amendments which were adopted by the Senate after the first report of the Joint Conference Committee; such amendments were not receded from by the Senate; the House adopted by a yea and nay vote the second committee report, but that action did not amount to a rescission of the amendments previously adopted; the Senate did not adopt the Committee report by a yea and nay vote and spread the same on the journal; the report of the Joint Conference Committee was a proposition to substantially and materially amend the bill as originally submitted to the Senate and amended and as originally adopted by the House with amendments. See Freeman v. Simms, 107 Fla. 438, 145 South. Rep. 187; State v. Skaley, 108 Fla. 506, 146 South. Rep. 544; State, ex rel. Bd. of Commrs., v. Helseth, 104 Fla. 208, 140 South. Rep. 655; Volusia County v. State, 98 Fla. 1166, 125 South. Rep. 375; Goff v. Rickerson, 61 Fla. 29, 54 South. Rep. 264.

I am therefore of the opinion that the Senate Bill No. 724,supra, the Act under consideration, did not pass the two Houses of the Legislature in the manner required by the Constitution for the exercise by the Legislature of the power of legislation and is therefore null and void.

In relation to the other cases listed in the caption of this opinion I agree with the very thoroughly presented and ably discussed views of Mr. Justice BUFORD as the same appear in dissenting opinion by him in the case of State, ex rel. Lane Drug Stores, Inc., a corporation, v. Clyde Simpson, as Tax Collector, filed November 26, 1935, on which date the majority opinion by Honorable Frank A. Smith, Judge of the Ninth Judicial Circuit, was filed.