24 Fla. 293 | Fla. | 1888
Lead Opinion
delivered the opinion of the court;
A bill to be entitled “ An act to revoke and abolish the present municipal government of the town or city of Palatka, and to reorganize a. city government for the said town or city,” and containing thirty one sections, numbered from 1 to 31, consecutively, passed the Senate at the last session of the Legislature, and in this condition reached the House of Representatives, where it was amended by striking out everything after the enacting clause and inserting in lieu of the matter so struck out, eight, new sections. This amendment was concurred in by the ¡Senate. In enrolling the bill the amendatory sections were substituted for the first eight original sections of the bill, and such amendatory sections and the twenty-three sections, numbered from 9 to 31, consecutively, of the original bill, were enrolled, and in this condition the enrolled bill was signed by the officers of the Senate and House of Representatives, when it u'as carried to the Governor, who approved it on the 3d day of June.
Considering the bill as a whole, though it has.the sanction of the Governor and is certified to by the officers of the-two houses, yet, as is conclusively shown by the journals, it has never been adopted by the two houses referred to.. Cooley C. L., 163-4.
The question presented for decision is whether any part of this ostensible statute, as it appears in both the enrolled and the printed laws, is valid.
In Jones vs. Hutchinson, 43 Ala., 721, the facts were that a bill providing, “ that all existing judgments of courts of record in this State, and all which may hereafter be rendered in said courts of record be, and the same are, liens upon all of the property of the defendants therein, which
The bill was never enrolled as it passed ; but in making what was intended to be an enrolled copy, to be signed by the presiding officers of the two houses, and to be presented to the Governor, the proviso was also enrolled as a part of the bill, and in this shape it was signed by the Speaker of the House, and President of the Senate, and approved by the Governor.
It is apparent that the bill, as it was signed by the officers of the two houses and approved by the Governor, made all existing and future judgments of courts of records, liens on the property of the defendants only in the county in which the judgment was or should be rendered, and in those counties where it should be recorded in the office of the Probate Court, while such bill, as it actually passed the two houses, made judgments of courts of record liens on all property of the defendants in any county in the State, whether the judgment had been recorded in the county or not.
Nothing could be plainer than that the Governor had acted on and approved a bill whose provisions were in legal effect one thing, whereas the bill which had passed the two
The whole bill was held to be of no validity, the court saying they were not to be understood as deciding that an error of this character would vitiate the whole act, where separate and distinct matter from that of the bill was inadvertently inserted and did ’not affect the original bill as passed, or change its substance or legal effect.
In Moody vs. State, 48 Ala., 115, where certain material amendments had been added to the bill after its introduction, but they were omitted in the enrollment, and did not appear in the enrolled bill, as signed by the officers of the two houses and the Governor, the bill was held to be of no effect as a law.
In Berry vs. Baltimore & Drum Point R. R. Co., 41 Md., 446, the facts were as follows: In 1868 a statute wus passed incorporating the railroad company, and the 19th section, of the act provided that if the company did not complete the road within four years from the time of commencing its construction, the charter was to be null and void. The-commencement was made in 1873, within the time prescribed by the act, and, consequently, as the charter stood, the company had till sometime in 1877 to complete the road.
In 1874 an amendatory act was passed, which, in its third section, recited by way of preamble, that it was feared that the time allowed by the charter for the completion of the road was insufficient, and this third section, as enrolled and approved by the Governor, and as printed in the volume of laws, provided that if the road was not finished; in five years from January, 1870, (thus diminishing instead, of increasing
The material difference between the third section of the amendatory act as it passed the two houses, and as it was when approved by the Governor, was occasioned by omitting the word “ five ” after the word “ seventy,” in copying or enrolling the bill for signature and approval, and on account of this omission and material difference the court declared the particular section null and void, and held that the 19th section of the original statute was left unaffected, arid prescribed the time for completion of the road, viz: Four years from the time of commencement in 1873.
What the provisions of the other sections of the amendatory act of 187-1’ were does' not appear in the report of the case. The doctrine, however, upon which they were held good, was that they were “ entirely distinct and sever-able from tlntt which is void.”
In State vs. Platt, 2 So. Ca., (N. S.) 150, it appears that
The ground upon which the invalidity of the proviso in the first of the above cases and of the sections in the others is put is that the same subject matter had not been acted upon by both branches of the law making power.
There is no doubt as to the absolute invalidity of section
The validity of the. first eight sections must be passed upon.
“It will,” says Judge Cooley, (Const. Limis., 211, et seq., 5th Ed., or 177 of 3d Ed.,) “sometimes be found that an act of the Legislature is opposed in some of its provisions to the Constitution, while others standing by themselves would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to he accomplished by it but insufficient for others. In any such case the portion which conflicts with the Constitution, or in regard to which the necessary conditions have not been obS served, must be treated as a nullity. Whether the other parts of the statute must be adjudged void because of the association, must depend upon a consideration of the object of the law, and in what manner, and to what extent the unconstitutional portion affects the remainder.”
In the case before us the fact is that the 9th and subsequent sections have received the sanction of the Governor alone.; and some consideration of the provisions of the two sets of sections is necessary.
The first section of the act as enrolled and printed provides that within fourteen days after it becomes a law the City Council of Palatka shall divide the city into four wards, and that thereafter voters shall be allowed to vote only in the wards they reside in. Section 2 provides that at the next annual election held in the city there shall be chosen two Aldermen from each ward, and the voters of each ward shall vote for only two Aldermen from their ward ; and at the same time there shall be chosen by all the voters of the city one Alderman at large, to be voted for by all voters without regard towards. Of the two-ward Aldermen chosen
Provisions upon the above subjects are also to be found in sections 20 and 14. Section 20 provides that the Council of Palatka, preparatory to organization under this act, shall during the year 1887 divide the city into not less than four nor more than teu wards, and appoint. polling places and provide for holding elections therein, and within four days after the election the Mayor and Oóuncilmen and officers to be elected shall qualify, and thereafter elections shall be held at such times and places as the Mayor and Council may ordain, consistently with this act. Section 14 ordains that the Council shall be composed of not more than nine Council men, and that they shall be elected for a term of two years at a general election by the qualified electors of the city, and that not more than two residing in any one ward shall be eligible. That at the first election four of the Oóuncilmen shall be elected for one year and the others for two years. The four receiving the highest number of votes at the first election to hold for -the long term and those receiving the next highest to hold for the short term.
As striking as are the dissimilarities in the above provisions of the sections which were adopted by the Legislature, and those which were not, there are still" others to be noticed. The purpose and effect of the first eight sections were that they should become operative as to the existing government or officials of Palatka within the ordinary time prescribed by the Constitution for a statute to go into effect. On the other hand, section 30 provides that “ the present city or town government of Palatka shall not be
The 5th section authorizes the council to levy taxes to the maximum extent of two per cent, of the assessed value of the property in the city — and section 6 authorizes the issue of bonds for sanitary and municipal purposes by the-'council, with the approval of a majority of the registered voters. Section 17, on the other hand, allows taxation for ordinary municipal purposes to the extent of two and a-half per cent, of the value of the property, and such purposes are declared to inelu le all municipal purposes except, interest on debt, and tax for sinking fund and a tax to pav any judgment against the city or levied in obedience toa mandamus; for these additional levies may be made.
The 8th section reserves to or confers upon the city all the rights, powers and privileges provided for by the general municipal incorporation statutes, not inconsistent with the provisions of the preceding seven sections. There is. much legislation in the sections following the eighth as to matters concerning which no provision is made by the first eight sections — and such legislation is entirely inconsistent with the provisions of the general incorporation law on simiHfor subjects. Section 16 gives the Mayor and Council power to create such officers (other than those specially provided for by the act), and to provide for their appointment or election, but their “ compensation and terms of service
It is apparent from the above review of the genuine and of the spurious sections, and of the general municipal law, as adopted by one of the former sections, that the same special objects are provided for in a different manner in the two parts of the ostensible law. The two parts are connected in subject-matter. Had they both been actually enacted by the legislative power, and there was some defect of procedure as to the 9th and subsequent sections, vitally affecting their force as law, but no such informality as to the first eight sections, could it be said that the law making power would have adopted the eight sections without the others ? In so far as the express provisions of the sections subsequent to the eighth are inconsistent with those preceding them, or with the general municipal law, they would, if valid, control; and this rule each branch of the law making
It is true that if a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other, but if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. The purpose in the case before us was to revoke the éxisting government of a city and establish a municipality with altered powers, and in so far as both the time when the powers were to become operative and what they should be, the provisions of the spurious portion of the act are entirely different from those of the other part.
It is a rule that if, when the unconstitutional part is stricken out, that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained ; and this rule is relied upon as one which supports the eight sections as an independent valid law. Cooley Const. Litn.
If the meaning of this rule be that when the provisions of the genuine parts are such as to sustain an enforcement of the legislative intent shown by them, considered of themselves, they are to be sustained although there may be in
A consideration of the cases cited by Judge Cooley, from whom we get the rule as expressed, will elucidate its meaning.
In State, ex rel., vs. Commissioners of Perry Co., 5 O. S., 497, the facts were that a statute had been passed in 1853 which, by its first section, provided for the removal of the county seat of Perry county from New Lexington to Somerset, in case the majority of the electors voting at the next general election should vote in favor of such removal. The manner of voting on the question at such election, and of canvassing the votes and certifying the result., was prescribed by subsequent sections. The 5th section of the act provided that if a majority of the electors should vote against removal, the County Cotntoissioners should surrender certain obligations which had been previously given to them under an act of 1851, to secure the payment of money to erect county buildings at New Lexington, to which place the county seat had been removed from Somerset pursuant to an election he'd under the act of 1851, It is perfectly clear that the provisions of the act, other than the 5th section, which imposed a forfeiture and was of itself unconstitutional, were, when considered of themselves or independent of the fifth section, operative or capable of being enforced, yet the.
These and other cases cited by Judge Cooley show that his meaning is what we suggest it to be. C. C. L., 212.
It is apparent that the eight sections are neither complete in themselves nor capable of being executed in accordance with the legislative intent, as such intent appears from the whole aet. The two parts are not wholly independent of each other; the effect of one is overcome by the provisions of the other. In each of the two parts are provisions in the same features of a single scheme.
If there were in those sections, which were not adopted 'by the two houses of the Legislature, no provisions inconsistent with either the preceding eight sections, or with the •provisions of the general municipal incorporation law, a case would be presented in which the eight sections would stand .as a valid enactment, for we could then see and would be authorized to say that they exercised no influence upon the G-overnor in the performance of his function of approving the hill. If, moreover, the ninth and subsequent sections related to some entirely 'distinct matters or features of which those of the eight sections were entirely independent, the •same conclusion might be reached, but as the case stands it is clear that the matters and purposes of the provisions of the two parts are not only not independent, but in some cases the matters are identical, and a different purpose as to them, or as to how they shall be effected, is undeniable.
No presumption, inconsistent with the view that the Governor considered and approved the bill with the belief that all its parts had received the legislative sanction indicated by the signatures it bore, and that he ratified it as a whole, is permissible. However much more the bill may secure
It cannot be said that the Governor is no part of the lawmaking power; he is made a part by an express provision of the Constitution, section 28 of Article III. His participation in the making of laws is expressly provided for at, an exception to the general prohibition of the second'article of the Constitution against any person properly belonging to one department of the government exercising power appertaining to another department. By such section 28 every bill that may have passed the Legislature must, “ before becoming a law, be presented to the Governor ; if he approves it he shall sign it, but if not he shall return it with his objections to the house in which it originated,” and a two-thirds vote of the members present in each house is necessary to make it a law against such objections. If any bill shall not be returned within five days after it is presented to the Governor, or if it shall not be filed by him in the office of the Secretary of State in ten days after the adjournment of the Legislature, should that body adjourn before the expiration of the five days, it is true the bill shall be a law in like manner as if he had signed it, yet the spirit of
In May, 1887, Governor Perry asked the opinion of the Justices ot this court (if it could be properly required) as to his duty to disapprove certain bills as beyond the power of the Legislature to pass at its then pending session, though otherwise unobjectionable. The Constitution makes it our duty to interpret the Constitution, at the request of the Governor, upon any question affecting his “ executive-powers and duties.’ ” u e declined to give the opinion because the question asked affected a legislative and not an executive duty of the Governor. Chief Justice McWhorter, speaking tor the several justices, (p. 298, 23 Fla., Repts,) said : “ Is the opinion you desire one relating to your ‘ executive powers and duties ?’ The e act legal meaning of the word ‘ executive ’ has been many times authoritatively fixed and defined. It means a duty appertaining to the
If the provisions are not meaningless, why is he not a part of the law-making power ? Both the approval of and the silent acquiescence in a bill involves the consideration of its provisions and so does a disapproval. A failure to approve or to veto can not be regarded as an omission to consider the bill, but can be regarded only as a silent acquiescence after careful consideration of all the provisions of the bill; any other theory imputes to the Governor absolute dereliction of duty. No bill can be approved or disapproved without an opportunity to consider it, and the consideration and approval or disapproval of a bill of one import or effect, does not even involve an opportunity to consider another bill of substantially different legal import or effect. 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 disapproval, and this is so because the Constitution requires that before a bill can become a law, it must be submitted to the Governor.
No bill of the same import or legal effect as the first eight sections has ever been pi’eseuted to the Governor for his action, and if we should sustain these sections, we
The authorities cited above are consistent with each other and affirm the invalidity of the first eight sections.
Whenever an ostensibly perfect bill is submitted to the Glovernor for his action as a part of the law making power, and he considers and approves its several parts collectively- and with the idea that they are all valid, and it subsequent, ly appears that some of them are spurious, a court should hesitate before pronouncing any of its parts to have the-force of law, and should not give them such effect, unless it is entirely clear that the spurious parts are such as could not have influenced him to approve the other parts, or, in other words, unless the latter are entirely severable, or distinct, and independent from the former. Any other rule must result in trespass by the judicial department upon the legislative domain, and encourage not only negligence, but even efforts upon the part of interested evil persons to secure the interpolation of matter which they might think would overcome some known executive objection, and yet not defeat the genuine parts of the bill.
The first eight sections, as well as the others, are void.
The motion to quash the return is denied, and the judgment of the court will be that the respondent go without day and recover his costs to be taxed by the clerk. State, ex rel., vs. County Commissioners, Sumter Co., 22 Fla., 364, 370. It will he so ordered.
Dissenting Opinion
delivered the following dissenting opinion :
I do not concur in the opinion of a majority of the court.,, and will give my own views of the case.
On the 12th of November, 1887, the relators in their capacity as City Council of Palatka, and as citizens of said city, filed their petition in this court fora writ of mandamus to compel respondent, as Assessor of the city, to assess the property therein under section 7, of chapter 3780, of the acts of 1887. The substance of their petition is,, that the time for beginning the assessment has arrived, and that the City Council, by resolution adopted in September,, ordered the Assessor to proceed with the assessment under the section mentioned, but that he refused, and still refuses, claiming that he should make his assessment in the-manner provided by the general law for the incorporation of cities and towns, because under section 30 of the act containing section 7, that act does not'become operative until: the Mayor and City Councilmen have been elected and qualified under it. The relators allege that said section 30" is no part of the law, inasmuch as neither that section nor any others, except those from 1 to 8, inclusive, were ever passed by the Legislature, wherefore they say the assessment should be made as the City Council ordered.
To the' alternative writ the respondent makes return» that he refuses to make the assessment as ordered—
1st. Because chapter 3780 is not a valid law, being local or special, within the meaning of the Constitution, and no notice of intention to apply for the same was published sixty days, as the Constitution requires; and further, because in the Legislature which passed it, the Senate was presided over by the Lieutenant-Governor, and .not by one-of its own members, as provided by the Constitution.
Chapter 3780, referred to, is “ An act to revoke and abolish the present municipal government of the town or city of Palatka, and to reorganize a city government for the said town or city,” approved June 3d, 1887.
At the hearing, the relators, to show that only the first eight sections of the act were passed by the • Legislature, produced in evidence, through the Secretary of State, the original bill, and the original engrossed bill, and the journals of the Senate and House of the session of the Legislature in which the act was passed. From these it is shown that the bill originated in the Senate, and was passed there, containing thirty-one sections, the last twenty-three of which are the sections from 9 to 31, inclusive, of the act as it now stands. The bill, as thus passed, went to the House, and in that body was amended by striking out all after the enacting clause, and inserting eight sections, which are the first eight sections of the act as it now stands. The Senate concurred in the amendment; and the bill, thus amended, was the bill, and all of the bill, that was finally passed by both houses.
It is shown by inspection of the engrossed bill that the change which resulted in the present act was brought about in the enrollment by substituting the eight sections of the amended bill for the first eight of the Senate bill, and then adding the remaining twenty-three sections of the latter bill, which had not been passed.
The case thus presented involves the constitutionality of
These objections aside, the question arises whether the act, in view of the evidence as to its passage, has constitutional standing as a legislative enactment. While every presumption is to be allowed in favor of the Legislature to sustain its acts, there is abundant authority to the effect that its journals and authentic papers may be resorted to for evidence of its action on the bills before it, that get into the statute book as laws, to ascertain whether they have or have not been passed in accordance with the requirements of the Constitution ; and that if, from such evidence, it be found that what purports to be a law was never passed it may be pronounced to be of no validity. Cooley’s Con. Lim., 163; Gardner vs. Collector, 6 Wallace, 499; Spangler vs. Jacoby, 14 Ill., 297; Beny vs. B. & D. P. R. R. Co., 41 Md., 446; Asburn vs. Staley, 5 W. Va., 85; S. C. 13 Am. Rep., 640.
It is clearly shown by the journals before us that the Palatka charter, as it passed the Legislature, had only eight sections, these being the first eight in the approved act; and just as clearly shown that the other twenty-three sec
Whatever is void is not law, say the courts. They further say that what is void in a law may be stricken from it, and that it is their duty if what remains can be enforced independent of the part stricken, to uphold that much ; but they nowhere say, and it would be inconsistency to say, that being void for one reason this- is unauthorized, while if void for auother a different rule may prevail. In every case where part of a law is sustained to the exclusion of another part, the whole has been approved by the executive, the bad and the good alike. If it has the form of law in a case like the present, as well as in cases where the whole act was passed, it would seem to be making a distinction without a difference to declare the former all void and the latter void only as to its bad parfs.
It is suggested that the conclusion which sustains this act, disregards the position and rights of the Governor, that as a component part of the legislative power his action is directed solely to the consideration of the bill presented
This does not convey the idea, loosely expressed, it seems to me, by some authorities, that the Governor is a component part of the Legislature. The three departments of government — legislative, executive and judicial, have separate, distinct functions, each independent of the other, with exceptions provided for, one of which is found in the foregoing section of the Constitution, and also except so
It is the function of the legislative department to pass laws, and that function is subject to no restraint except the veto of the executive. When an act is passed and presented to the Governor for his approval, it is not because that approval is necessary to make it a law, for it becomes a law irrespective of his approval, if he does not challenge it by a veto; and even if he vetoes it, it may become a law independent of him by a two-thirds vote of the two houses of the Legislature. It is clear, therefore, that the Governor’s agency in the passage of laws is not affirmative, but only a sign to indicate that he has no veto to iuterpose.
Then, if all bills passed by the Legislature may become laws without any affirmative action of the Governor, does his approval of a bill, part of which has been passed by
Applying the foregoing views to the act under consideration, I am now to enquire whether, if all the sections after the Sth are stricken out, a law is left complete in itself, answering the intent of the Legislature, and in nowise dependent ou those sections, or any of them. Prima facie, there would be such a law, for those eight sections constitute the law as it actually passed the Legislature. But, onking to the act itself, I come to the same conclusion.
The first section provides for the division of the city into four wards, restricts voting to the ward in which the voter resides, and authorizes the Mayor to appoint three inspectors of election in each -M’d.
The second section provides that at the next annual election there shall be chosen two Aldermen for each ward,
The third section provides the mode of appointment of City Marshal, fixes his salary, and directs how he may be removed or suspended.
The fourth section fixes the salary of the Mayor, and provides for the disposition of fines, forfeitures, &e.
The fifth section invests the City Council with power to levy taxes annually to the extent of two per cent, of the assessed value of the property in the city, and no more.
The sixth section empowers the City Council, with approval of a majority of the registered voters of the city, to issue bonds for sanitary and municipal purposes, the interest on same not to exceed the legal rate of interest of the State.
The seventh section provides that the City Assessor shall assess property in the city equally at its fair and reasonable valuation ; and gives the City Council power to act as a board of equalization.
The eighth section is as follows : “ Nothing in this act shall be so construed as to deprive the city of Palatka of its rights, powers and privileges now allowed by law under the general incorporation act for cities and towns in this State, but all the provisions of said general incorporation law, not inconsistent with this act, shall apply to said city of Palatka.”
Prom this compendium of the eight sections it will be seen that the first seven provide for special matters pertaining to the government of Palatka, while the eighth provides for all other matters necessary to compílete the organization by continuing in force such provisions of the