74 Fla. 555 | Fla. | 1917
Lead Opinion
This is a suit in equity by W. H. Mosley in the Circuit Court for Leon County, to enjoin the Comptroller from issuing warrants to the members of the Tax Commission in payment of their salaries.
A temporary restraining order was made by the chancellor and an appeal is taken therefrom to this court, which raises the question of the validity of Chapter 6500 Laws of Florida, Acts of 1918.
This attack is predicated upon the grounds that the Journals of the proceedings of the Senate for the Session of 1913 do not show that on the final passage of the bill the vote was taken by yeas and nays, and entered on the Journals of that body as required by Section 17 of Art. 3 of the Constitution, and because the bill contained a section making appropriations for expenses, it was in violation of Section 30 Art. 3 of the Constitution of the State of Florida, which provides that “Laws making appropriations for salaries of public officers and other current expenses of the State, shall contain provisions on no other subject.”
The defendants offered in evidence what purported to be a certified copy of page 132 of the daily printed Journal of the.Senate for June 4, 1913, which was admitted over the objection of the complainant.
It is a well settled rule in this State that where the Constitution says that each house of the legislature shall “keep a journal of its proceedings which shall be published,” and expressly requires that “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 journals are conclusive on the point whether the yea and nay vote was so taken and entered. Thus in State ex rel. Attorney General v. Green, 36 Fla. 154, 18 South. Rep. 334, this. court said: “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.” See also Wade v. Atlantic Lumber Co., 51 Fla. 628, 41 South. Rep. 72; Mathis v.
The rule in this State is thus stated by Chief Justice Mabry in the case of State ex rel. Attorney General v. Green, supra “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 procedings, 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 clearly, 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. v. Brown, 20 Fla. 407; State ex rel. v. Deal, 24 Fla. 293, 4 South. Rep. 899; Mathis v. State, 31 Fla. 291, 12 South Rep. 681) ; and as there is ample authority to sustain this view, we will not now make any departure.”
The question, however, which we must first determine is, what is the journal? Is it the bound volume which purports to be a copy of all the journals of the entire
The law with regard to binding the journals in one volume, is found in Section 652 General Statutes of Florida, and further provides for them, to be indexed by the Attorney General, and that “the indexes, with the' Journals shall be delivered to the contractor who shall print and bind the same without delay.” Here is a statutory recognition of the daily printed pamphlets
In the case of State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South. Rep. 767, Mr. Justice Taylor who delivered the opinion of the court said: “It is well settled that the journals kept by the two houses of the Legislature of their proceedings are public records of which the courts will take judicial notice.”
In the case of Bloxham v. Florida Cent. & P. R. Co., 35 Fla. 625, 17 South. Rep. 902, the court in order to
In the case of Wade v. Atlantic Lumber Co., 51 Fla. 628, 41 South. Rep. 72, this court took judicial notice of the journals of the two houses of the legislature. In that case an act granting lands to the Atlantic, Suwannee River & Gulf Railroad Company was attacked on demurrer to a bill, one of the grounds being that the title of the act was insufficient to embrace the land grant; This court resorted to the journals of the Senate and House and followed the bill in its course through those bodies and in the Joint Committee on Enrolled Bills and found that the title of the bill as introduced and voted on was different from and more restricted than the title as published in the planted acts as Chapter 4267 Laws of Florida, Acts of 1893, and treated the act as having the more restrictive title which the court took judicial notice of from its examination of the journals.
In these cases, the court acted in accordance with a well established rule, that those things of which a court may take judicial notice requires no proof. Thus, in State v. Main, 69 Conn. 123, 37 Atl. Rep. 80, the court said: “Judicial notice takes the place of proof, and is of equal force. As a means of establishing facts, it is therefore superior to evidence, - since, as it stands for proof, it fulfills the object which evidence is designed to fulfill, and makes evidence unnecessary. * * * If, in regard to any subject of judicial notice, the couri should permit documents to be referred to as testimony
'We take the following -from Yol. 15 Ruling Case Law, pp. 1060-1061: “Judicial knowledge in any case is by no means determined or limited by the knowledge of the particular judge or court. Where a judge is personally conversant with a fact which is judicially cognizable, proof thereof is of course not required'.' But judicial notice is taken only of those matters which are ‘commonly’ known. And therefore individual and extrajudicial knowledge on the part of a judge will not dispense with proof of facts not judicially cognizable and cannot be resorted to- for the purpose of supplementing the record. On the other hand, it is not essential that matters.of judicial cognizance be actually known to (he judge. If they are proper subjects of judicial knowledge, the judge may inform himself in any, way which may-seem, best in.his discretion, and act accordingly.”
• On the-question now under consideration — the right of this court to take judiica! notice of the legislative journals — Ohamberlayne in his work on the Modern haw of Evidence, Yol. 1, Sec. 661, says: “Journals of a branch of the legislature are public records. ‘They prove their own authenticity.’ Being kept in virtue of a provision of law, judicially known -to the judge, their existence and function- in legislation are also judicially known. Judges of a majority of American States hold that they may resort to these journals for the purpose of ascertaining what is the law which they are charged with the responsibility of knowing at-their peril; — when
Judge Cooley announces the same doctrine in his work on Constitutional Limitations, and as a Justice.of the Supreme Court of Michigan. In the 7th Ed. page 193 of the former he says: “Each-House keeps a journal of its proceedings, which is a public -record, and of which courts are at liberty to take judicial notice.”
'In the case of People ex rel: Drake v. Mahoney, 13 Mich. 481, he says: “As the courts are bound'judicially ■to take notice of what the law is, we have no doubt it is our right, as well as our duty, to take notice, not only of the printed statute books, but also of the journals of the two houses, to enable us to determine whether all the constitutional requisities to the validity of a statute have been complied with.”
The Supreme Court of Wisconsin says: “The courts will take judicial notice of the statute laws of the State, and to this end they will take like notice of the contents of journals of the two houses of the legislature far enough to determine whether an act published as a law was actually passed by the respective houses in acordance with constitutional requirements.” McDonald v. State, 80 Wis. 407, 50 N. W. Rep. 185.
The case of Worthen v. Badgett, 32 Ark. 496, was submitted on demurrer to a bill to which was attached as an exhibit, a transcript from a House Journal, which failed to show that the bill passed, but the court went beyond the proóf thus submitted, and made “a personal examination of the House Journal,” which had not been
In determining the validity of a law found upon the statute books, where it is attacked upon the ground that the constitutional requirements were not observed in its passage through the legislature, the courts should not exclude from their knowledge matters of general and common knowledge which. they are presumed to share with the public generally. This does not mean knowledge which they individually possess by reason of per
In this State, the constitution requires each house' of- the legislature to “keep a Journal of its proceedings which shall be published,” and it is a matter of common and general knowledge that the Senate and House of Representatives cause the record of their proceedings to be published daily in pamphlet form and distributed generally throughout the State, and where the validity of a statute is attacked on the grounds, that the constitutional requirements in its passage by. the legislature were not obeyed, it is our duty to take judicial notice of these journals, to satisfy ourselves about what actually transpired in the passage of the act. This we have done, and as the daily printed journal of June 1th, 1913, kept by the Senate, which we have before us, and of which the court takes judicial notice, shows that the yea and nay vote oh the final passáge by the Senate of Chapter 6500, was entered on the Senate Journal immediately before an entry stating that the bill passed the Senate, such vote being 20 to 8 for the passage of the bill, the mere fact that the bound copies of the journals printed and bound by a contractor under the statute and
It appearing from the daily journal of the Senate of June 4, 1913, that the vote on the final passage of the bill was taken by yeas and nays, was entered on the Journal of the Senate, and' passed by a vote of twenty yeas to eight nays, the objection to the law on this ground is not sustained.
Before leaving this branch of the case we call the attention of the Legislature to the fact that there is no provision in our laws for filing the daily printed journals of the respective branches of the legislature in the office of the Secretary of State or elsewhere, where they may be at all times available to the courts.
The next ground of attack on the bill is that it is in violation of Section 30, Art. 3 of the Constitution which provides that “Laws making appropriations for salaries of public officers and other current expenses of the State shall contain provisions on no other subject.”
It is contended by the appellee that because the bill creating the State Tax Commission, contained a section making an appropriation for the payment of the salaries of the commissioners, it is in contravention of the Constitution. Such a construction eliminates the second clause of the paragraph “and other current expenses of the State,’’ and extends the restriction to any la.v con-
In the second Advisory Opinion of the Justices, Sec. 2, Art. XI of the Constitution which provides for raising revenues for the government, and Sec. 30, Art. IV, in relation to “laws make appropriations for salaries of public officers-and other current expenses of the State” were under consideration, and Mr. Justice Westcott
Section 784 Revised Statutes, which. Mr. Justice Hocker who delivered. the opinion of the court said was equivalent to an appropriation law, is Section 20 of the State Board of Health Act passed at the extra session of the Legislature, 1889, which provides “There shall be annually levied and collected, upon the assessable property of the State a tax of not more than half mill, the revenue derived from which assessment and collection shall constitute a special fund to be used for public health purposes of the State.”
There seems to be no reason why an act, the general purpose of which is not to make appropriations for salaries of public officials and for current expenses of the State, may not, as was said by Judge Westcott, make
The constitution of most if not all the States have provisions similar to Sec. 30, Art. 3 of our Constitution, but we have been able to find a decision from only one State, Oregon, whose constitutional provision is identical with ours. Other decisions relating to constitutional provisions differing somewhat from ours, have been cited which though interesting are not sufficiently in point to be guiding.
Section 7, Art. 9 of the Oregon Constitution,'provides, “Laws making appropriations; for the salaries of public officers and other current expenses of the State shall contain provisions upon no other subject.” That is the exact language of the provision of our Constitution, and an attack was made on the Workmen’s Compensation Act, on the ground that it was in contravention of this provision of the- Oregon Constitution. So much was said by the court that is applicable to the instant case, both as to the law and legislative practice, that we quote at length from the opinion: “The evident purpose of this provision was to prevent matters foreign to the general purpose of appropriation bills being attached
.Judged by a long line of enactments by the legislature, that coordinate branch of the government has placed on Section 30, Art. 3 of our Constitution a construction in accord with Mr. Justice Westcott’s opinion, that a specific provision for the payment of expenses necessary, proper, incidental or growing out of a law itself,including provisions for the payment of persons employed is not prohibited by the constitution, for ever -since it went into effect in 1887, laws have been passed creating
The construction placed by the legislature on this provision of the constitution is entitled to weight with the courts, when there is doubt as to the constitutionality of a law. This does not mean, however, that if the legislature clearly violates a constitutional provision, the frequent repetition of the wrong will create a right;
In Bloxham v. Consumers’ Electric Light & St. R. Co., 36 Fla. 519, 18 South. Rep. 444, it. was held that “A practical construction of á statute by a governmental department while . not of such high authority as a judicial interpretation of the act, is, when not in conflict with the Constitution or the plain intent of the act, of great persuasive force and efficacy.” All the acts of the legislature which we have mentioned herein,
We are strongly of the opinion that this act is not in contravention of Section 30, Art. 3 of the Constitution, because it is not a law “making appropriations for salaries of public officers and other current expenses of the State,” but is one inaugurating a new governmental policy in. the assessment of property for taxes, and is a comprehensive scheme embracing the entire State and affecting the taxation of all property in the State. The matter of appropriations for carrying the law into effect is but a small part of the gUeat purpose of the act.
The appellee next contends that because the act-makes a continuing appropriation’ it is in contravention of
The judgment is reversed.
Concurrence Opinion
I think that the word “Journal” as used in Section 12 of Article III of the Constitution which requires each house of the legislature to keep a journal of its own procedings and to publish the same and as used in Section 17 of the same article which, requires the vote on the final passage of every bill or joint resolution to be taken by yeas or nays and entered on the journal of each house, means the record of the procedings of each house as it is daily made and published in pamphlet form and placed each morning upon the desks of the members for correction and approval.
The bound copies of the journals which the contractor for the public printing is required under Sections 657 and 660 of the General Statutes to print and bind and deliver to the Secretary of State for distribution to the officials named therein are not verified copies, nor can
The burden of showing, that an Act of the Legislature which has been duly signed by the presiding officer of each house and by the Secretary of .the Senate and the Clerk of the House of Representatives and become a law with or without the approval of the Governor as shown by the record of official acts of the Legislative department as the same, are kept. by the. Secretary of State as required by Section 21 of Article IV of the Constitution ,is upon the person who asserts that the act did not pass in the manner prescribed by the constitution.
Such has been the holding of this court since the case of State ex rel. Markens v. Brown, 20 Fla. 407, was decided, in which Chief Justice Randall said: “If the journals show conclusively that any material portion of a bill as- passed was omitted in the enrolling, so that it may be considered that the act as approved' was not passed by the Legislature and does not express the legislative will, the act as approved at least to the extent that it is affected by the omission must.be held invalid. This is a rule now well settled by the American Courts; The Constitution (1868) requires the keeping of journals of their proceedings by the respective Houses of the Legislature; and these Journals are received as evidence of such proceedings (italics mine). When an act is duly approved and published it is prima facie a law; but if the Legislative Journals show that instead of being passed it was- defeated, or that it is not the same that was passed it is not a law.”
This- having been-the law of the State for more than thirty years and having decided that thé daily printed
This burden was not carried by the appellee. He sought by the introduction of the bound copies of the journal of the Senate of.the Session of 1913 to throw the burden upon appellants of showing by the journal of the Senate that the bill in question did pass. Even if the bound journals may be considered as secondary evidence of the daily proceedings of each house, a proposition which I am not prepared to accept as law, there was no effort to show that the “Senate Journal” Could not be produced and therefore no ground for the introduction of secondary evidence was laid.
The appellee having therefore failed to show by the “Journal” of either house of the legislature of the Session of 1913 that the act did not pass, the prima facie validity of the act was not overcome.
I also concur in the conclusion reached as to the second point.