West v. State

50 Fla. 154 | Fla. | 1905

Taylor, J.,

(after stating the facts.) The only error assigned is that, the court erred in making his order of July 10th, 1905, remanding said petitioner to the custody of the Sheriff of Duval county, Florida.

It is contended here that the act assailed is unconstitutional because it violates Section 16 of Article III of the Constitution, which is as follows: “Each law enacted in the legislature shall embarce but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title; and 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 reenacted and published at length.”

Tbe contention is that the title of the act is restrictive and misleading. That its title “An Act to Prohibit Certain Games and Sports on Sunday,” restricts its provisions to certain games and sports, while the body of the act prohibits any game or sport. There is no merit in this contention. The title of the act is restrictive in a certain sense, but the body of the act is correspondingly restrictive. While the body of the act uses the broad comprehensive expression “any game or sport,” yet this general comprehensive language is qualified, particularized and restricted by the further language “such as base ball, foot ball or bowling, as played in bowling alleys, or horse racing.” We apprehend that no game or sport is prohibited by the act except those expressly named therein, and, possibly, games or sports of closely kindred character to those expressly named.

It is next contended that the act is unconstitutional and void because as passed by the Legislature it contained the words: “This bill shall not go into effect until July 1st, 1906,” whereas the bill as approved by the Governor does not contain these words, but on the contrary contains a provision that the act shall take effect immediately upon its passage and approval by the Governor. The only semblance of evidence to sustain the asserted fact that the bill as passed by the Legislature contained the words last above quoted are the following entries in the printed journals of the House of Representatives of its proceedings when the bill was on its third reading: “Mr. Melton of Duval offered the following amendment to House bill No. 242: Strike out the words ‘This bill shall not go into effect until July 1, 1906.’ Mr. Melton moved the adoption of the amendment. Mr. Dorman moved to lay the amendment on the table. Which was agreed to.” Then follows in the journal the offer of another amendment, and the tabling thereof, and immediately following this is the entry putting the bill upon its final passage and the record of the names of those voting yea and nay. If the presumption was indulged that all of the members of a legislative body at all times strictly observed the rules of parliamentary accuracy, these journal entries might furnish some slight indirect evidence that the words proposed to be stricken by Mr. Melton’s proffered amendment were contained in the bill, but, unfortunately for the presumption, all of the members of a legislative body are not at all times strictly accurate in their observance of parliamentary rules and practice, and in their effort to defeat or obstruct the passage of a measure the opponents thereof frequently offer inconsistent, irrelevant, repugnant, and sometimes ridiculous amendments. A short way of getting rid of such efforts, though not perhaps according to strict parliamentary rules, is to lay such proffered amendments on the table, as was done in this case; and the very reason for the prompt success of the motion to lay Mr. Melton’s offer of amendment on the table may have been the fact that no such words as those proposed by his amendment to be stricken therefrom were contained in the bill. But again, there is nothing in the Constitution that mandatorily requires the journals expressly to show the adoption of amendments to bills, and there may have been a reconsideration and subsequent adoption of Mr. Melton’s proffered amendment, which did not, in the confusion sometimes attendant upon legislative procedure, find expression upon the journals. We have practically held in the case of State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South. Rep. 767, that the silence of legislative journals upon any step in the enactment of a law is not affirmative evidence to the courts that such step was or was not taken, except in those particular respects wherein the Constitution mandatorily requires such journals expressly to show the action taken; such, for example, as the entry of the ayes and noes upon the final passage of a bill. The failure of the journals to show expressly that such amendment as the one offered by Mr. Melton was adopted is no affirmative evidence to the courts that such an amendment was not in fact adopted; and the express showing by the journals that such an amendment was at one time rejected, is not affirmative evidence to the courts that such amendment was not subsequently adopted without any mention in the journals of such subsequent adoption.

The next contention is that certain other words in respect to bowling alleys are found in the bill as approved by the Governor that were not in the bill as it passed the Legislature, and partial entries in the journals and the silence of the journals is again relied upon to establish the facts of the contention. What is said above in reference to the Melton amendment disposes also of this contention.

It is next contended that the act is unconstitutional and void because the journals show affirmatively that the bill was not read ty sections on three several days in each house as is provided for in Section 17 of Article III of the Constitution as it was originally adopted in 1885. There is no claim that the bill was not read in compliance with the amendment to said Section 17 of Article III of the Constitution proposed by the Legislature at its session in 1895 and subsequently at the general election held in 1896 duly approved and adopted by the vote of a majority of the electors of the State; but it is contended that this alleged amendment to said Section 17 of Article Ill of the Constitution is inoperative, unconstitutional and void for the reason that the Legislature of 1895 in adopting the joint resolution proposing such amendment to the Constitution did not enter the proposed amendment upon the journals of the respective houses with the yeas and nays, as provided by Section 1 of Article XVII of the Constitution of 1885.

The great weight of authority is opposed to the soundness of this contention, and we agree with the Kansas and other courts in the doctrine there anounced that in constitutional changes the popular voice is the paramount act. That where a proposed amendment to the .Constitution receives the affirmative votes of three-fifths of all the members elected to each house, and such proposed amendment is published and submitted to the vote of the people as required, and at the election is approved and adopted by a majority of the votes of the people cast thereon, that then it becomes a valid part of the organic law notwithstanding the fact that the Legislature may have failed to have such proposed amendment entered at length upon the journals of the two respective houses. Constitutional Prohibitory Amendment, 24 Kan. 700; Worman v. Hagan, 78 Md. 152, 27 Atl. Rep. 616; Nesbit v. People, 19 Colo. 441, 36 Pac. Rep. 221; Oakland Paving Co. v. Tompkins, 72 Cal. 5, 12 Pac. Rep. 801, S. C. 1 Am. St. Rep. 1; State ex rel Adams v. Herried, 10 S. Dak. 109, 72 N. W. Rep. 93. Some of the above cases hold that the entry of the proposed amendment in the journals as contemplated by the Constitution, is fully satisfied by an express accurate reference in the journals to the identifying title of the joint resolution proposing the amendment.

Finding no error in the judgment of the Circuit Court tbe said judgment is hereby affirmed at the cost of the plaintiff in error.

Hocker and Parkhill, JJ., concur. Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.