State v. Hocker

• Decision Date: 04 October 1895
• Citation: 18 So. 767,36 Fla. 358
• Parties: STATE et rel. TURNER et al. v. HOCKER, Circuit Judge.
• Court: Florida Supreme Court

18 So. 767

36 Fla. 358

STATE et rel. TURNER et al. v. HOCKER, Circuit Judge.

Florida Supreme Court

October 4, 1895

Original proceeding, on the relation of W. A. Turner and another against W. A. Hocker, circuit judge, for mandamus. Writ awarded.

Syllabus by the Court

SYLLABUS

1. Mandamus is the proper remedy to compel the exercise by a court of jurisdiction that it clearly possesses, where it refuses to act.

2. Where an alternative writ of mandamus is granted against a circuit judge to compel the exercise of jurisdiction over causes pending in two counties recently annexed by legislative act to the judicial circuit presided over by him and he bases his refusal to exercise such jurisdiction upon the unconstitutionality of the legislative act bringing said territory within his jurisdiction, alleging it to be unconstitutional because of the manner in which it was enacted by the legislature, such issues can properly be raised and presented by demurrer to the alternative writ of mandamus.

3. The journals kept by the two houses of the legislature of their proceedings are public records, of which the courts of the state will take judicial notice.

4. Acts of the legislature duly enrolled and signed by the officers of the two houses, and filed in the office of the secretary of state, with the approval of the governor thereon, are prima facie valid and authoritative laws; but the journals of the two houses that enacted them may be resorted to, to ascertain whether the mandatory requirements of the constitution have been complied with by the legislature in their enactment, and if such journals show explicitly clearly, and affirmatively that any essential constitutional requirement has not been complied with, or if they fail to show any essential step in the process of enactment that the constitution expressly requires them to show,--such, for example, as the entry of the ayes and noes upon the final passage of any bill in either house,--then such journals would prevail as evidence, and the enrolled bill, as evidence of the law, would have to fall.

5. In passing upon the constitutionality of statutes generally, no matter from what standpoint the assault thereon may be made it is a well-settled and cardinal rule that nothing but a clear violation of the constitution will justify the courts in overruling the legislative will; and, where there is a reasonable doubt as to the constitutionality of an act, it must be resolved in favor of the act, and it should be upheld.

6. Constitutional provisions prescribing what shall be the contents of titles to acts, and requiring each house of the legislature to read each bill on three several days, unless such readings be properly dispensed with by a two-thirds vote, and requiring the reading of bills and the entry on the journals of the ayes and noes on the final passage of every bill, are mandatory; and it is the duty of the courts to adjudge the law invalid and void in cases where it is clear, beyond reasonable doubt, the these provisions have been violated or ignored; but these provisions should receive, not a technical construction, but a reasonable one, and, looking to the evils intended thereby to be remedied, only such legislative acts should be overthrown as are clearly and obviously offensive to their spirit and meaning.

7. Chapter 4227, Laws Fla. approved June 1, 1893, entitled 'an act to amend sections 1363 and 1364 of chapter 3 of title 3 of the Revised Statutes of the State of Florida, defining the Fifth and Sixth judicial circuits of Florida,' is not unconstitutional and void. Its title does not embrace more than one subject and matter properly connected therewith; and its subject is sufficiently expressed in its title.

8. The constitutional inhibition against the revision or amendment of statutes or sections of statutes by their titles only does not apply to amendments that are effected by implication. Our constitution does not prohibit the repeal of a statute or part of a statute by implication.

9. Where one house of the legislature originates and passes a bill through its three constitutional readings, and reports it to the other house, and the latter passes the bill with amendments that it has adopted that are germane to its general subject, either to the body of the bill or to its title, it is not necessary that the house where the bill originated shall do anything more than to concur by vote in the amendments made. It is unnecessary in such a case to reread the bill three times again in the house of its origin.

10. Our constitution does not require that the journals should show affirmatively that a bill was read 'by sections' on its final passage; and, if they do not so show, the presumption, in the absence of affirmative evidence to the contrary, would be that it was read by sections, as required.

COUNSEL R. L. Anderson, for plaintiff.

W. A. Hocker, in pro. per.

OPINION

TAYLOR, J.

This is an original proceeding in mandamus brought in this court, on the relation of W. A. Turner and H. D. Mason, against Hon. W A. Hocker, judge of the Fifth judicial circuit of Florida, to require him to entertain, hear, and determine a cause pending in the circuit court of Citrus county, Fla., by bill in equity brought by the said Turner and Mason for the removal of cloud on title, in which J. R. Blakiston and Willie A. Blakiston, his wife, are defendants.

The alternative writ alleges, in effect, that chapter 4227, Laws Fla. approved June 1, 1893, transferred the said county of Citrus to, and made it a part of, the Fifth judicial circuit of Florida, and that the defendant, Hon. W. A. Hocker, being the judge of said Fifth judicial circuit, has jurisdiction of matters pending in said circuit court of Citrus county, but that he declines and refuses to hear and determine the matters submitted to him in and by said cause in equity, alleging as his only reason that he has no jurisdiction as such judge of the Fifth judicial circuit of Florida over causes pending in the circuit court of Citrus county; that said cause in equity is still pending in said circuit court of Citrus county; and that the relators are entitled to have the same heard and determined.

The defendant demurs to the alternative writ, and, as ground of demurrer, contends that said chapter 4227 of the Laws approved June 1, 1893, is unconstitutional and void: (1) Because the act embraces more than one subject and matter properly connected therewith. (2) Because, if it contains but one subject, that subject is not expressed in its title. (3) Because it amends section 10 of article 5 of the constitution, and said section is not re-enacted and published at length in the said act. (4) Because said act was first introduced in the senate on May 5, 1893, as senate bill No. 207, its title then being 'An act to amend sections 1362 and 1364 of chapter 2 of title 2, Revised Statutes of the State of Florida,' was passed through the senate with that title, was certified to the house by that title, was considered on the third reading in the house by that title, was amended by striking out all after the enacting clause, and passed in the house by that title, and after its passage a new title was given the bill not germane to the original title; and because the act as passed was never considered in the senate at all, except simply to concur in the amendment made in the house, and was not read in the senate at all, thereby ignoring the forms of procedure for the passage of bills provided in section 17 of article 3 of the constitution of Florida. (5) Because the said bill was not read by sections on its final passage in either house, and the fact that it was read by sections does not appear in the journals, as required by section 17 of article 3 of the constitution of Florida.

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. People v. Mahaney, 13 Mich. 481; Cooley, Const. Lim. (5th Ed.) p. 163, and cases cited. The assaults made upon the constitutionality of the act in question being predicated upon the manner in which it was enacted, as exhibited by the journals, the issues raised thereby can properly be presented, as they have been here, by demurrer to the alternative writ. Acts of the legislature duly enrolled and signed by the officers of the two houses, and filed in the office of the secretary of state, with the approval of the governor thereon, are prima facie valid and authoritative laws; but the journals of the two houses that enacted them may be resorted to, to ascertain whether the mandatory requirements of the constitution have been complied with by the legislature in their enactment; and if such journals show explicitly, clearly, and affirmatively that any essential constitutional requirement has not been complied with, or if they fail to show any essential step in the process of enactment that the constitution expressly requires them to show,--such, for example, as the entry of the ayes and noes upon the final passage of any bill in either house,--then such journals would prevail as evidence, and the enrolled bill, as evidence of the law, would have to fall. State v. Brown, 20 Fla. 407.

The provisions of our constitution alleged to have been violated in the enactment of this statute are as folows: Section 16 of article 3: 'Each law enacted in the legislature shall embrace 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 re-enacted and published at length.' Section 17 of article 3: 'Every bill...