State v. Green

• Decision Date: 26 September 1895
• Court: Florida Supreme Court
• Parties: STATE ex rel. ATTORNEY GENERAL v. GREEN.

18 So. 334

36 Fla. 154

STATE ex rel. ATTORNEY GENERAL v. GREEN.

Florida Supreme Court

September 26, 1895

Error to circuit court, Escambia county; W. D. Barnes, Judge.

Action in quo warranto in the name of the state, on the relation of the attorney general, against L. Hilton Green. To a judgment for defendant, plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. The constitutional requirements as to the mode and manner of enacting laws are mandatory, and where the journals kept by the two houses of the legislature are silent as to matters required to be entered upon them, or where they show affirmatively and explicitly tat other constitutional requirements not directed to be entered on the journals have not been complied with in the enactment of a law, the journal evidence will control, and the act be declared void.

2. When the legislature acts in the apparent performance of its legal functions, every reasonable presumption must be made in favor of the action of the legislative body, and it will not be presumed in any case, from the mere silence of the journals that either house has disregarded a constitutional requirement in the enactment of a law, unless where the constitution has expressly required the journals to show the action taken; and in such case their silence will be fatal to the law.

3. The governor acts as a part of the lawmaking 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 him for approval, it cannot become a law by his approval, or silence, or against his approval.

4. Under section 16 of article 3 of the constitution, the title of an act is made an essential and important part thereof and it will have the effect to control the subject of the act, and restrict its provisions to matters properly connected with the subject expressed in the title.

5. The purpose of the constitutional provision (section 16, art. 3) is to prevent 'hodgepodge or log-rolling' legislation, surprise, or fraud upon the legislature by means of provisions in acts of which the titles give no intimation and to fairly apprise the people of the subjects of legislation being enacted.

6. If the title of an act, as it passed the legislative bodies, and when approved by the governor, is so essentially different as to affect the whole act, it cannot be said that the same act received the sanction of the entire legislative department of the government; but if the difference is immaterial and unsubstantial, it will not annul the law.

7. The rule of construction, that, although a portion of an act be void, it will not necessarily render the entire act inoperative, if the good and the had can be separated, and the legislative purpose expressed in the valid portion be given effect to, independently of the void part, applies also to titles of acts.

8. The title to the act to create the city of Pensacola (chapter 4513, Acts 1895), being '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 their terms of office, and to provide for the support and maintenance of said city government and improvement of said city,' as the act passed both branches of the legislature, did not have in it, as is affirmatively and clearly shown by the legislative journals, the words 'and to provide for its officers and their terms of office,' found in the enrolled bill approved by the governor. Held, that the added words are 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 of the city is concerned. Held, further, that the title to the act, eliminating entirely the added words as useless, is sufficient to authorize the provisions in the act in reference to the election of municipal officers for said city.

9. The provision in section 152 of the act (chapter 4513, Acts 1895), that the first election thereunder should be held on the first Tuesday in June, 1895, and biennially thereafter on the same day, and that the election should be held under the general law governing state elections existing at the last state election, is not in conflict with the constitutional provision (section 16, art. 3) 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.

10. The provision in section 153, that 'the form of ballot used shall conform with the requirements of existing state laws as herein provided,' means 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.

COUNSEL John C. Avery, John S. Beard, and C. M. Jones, for plaintiff in error.

Blount &

Blount, John Eagan, and C. B. Parkhill, for defendant in error.

OPINION

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 powers 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 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 the said city,' approved May 27, 1895; that at said election said L. Hilton Green received the highest number 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 No. 14 of the provisional municipality of Pensacola, under chapter 4303, Laws Fla., 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 became 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 15 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 offices 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 27, 1895, that 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 Cosgrove was the legal incumbent of the office of district commissioner of said district No. 14 at the time of said election, and as on 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 27, 1895, being chapter 4513, 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 nonobservance of certain requirements of the general election law of 1895.

It is claimed that the act of May 27, 1895 (chapter 4513), is void and conferred no authority to hold said election, for the...