Atlantic Coast Line R. Co. v. Mallard

• Decision Date: 26 March 1907
• Citation: 53 Fla. 515,43 So. 755
• Parties: ATLANTIC COAST LINE R. CO. v. MALLARD.
• Court: Florida Supreme Court

43 So. 755

53 Fla. 515

ATLANTIC COAST LINE R. CO. v. MALLARD.

Florida Supreme Court

March 26, 1907

In banc. Action by Carrie D. Mallard against the Atlantic Coast Line Railroad Company. From a judgment in favor of plaintiff defendant brings error. Heard on motion by defendant in error to strike out the bill of exceptions. Motion denied.

Shackleford C.J., and Cockrell, J., dissenting.

Syllabus by the Court

SYLLABUS

Chapter 5403, p. 81, Laws 1905, the fourth section of which provides that 'this act shall take effect immediately upon its passage and approval,' is not unconstitutional or void because it was never expressly approved by the Governor. It became a valid law, without the express approval of the Governor, under the provisions of section 28 of article 3 of the Constitution. Under this provision of the Constitution a statute properly enacted by the Legislature, unless expressly vetoed by the Governor within the time limited by said provision, becomes as valid a law, without the Governor's express approval, as though he had affirmatively approved it.

Where the judge of one judicial circuit, under and by virtue of an order of the Governor, presides over a term or part of a term of the circuit court in a county within another judicial circuit, and while so presiding tries a cause there pending which trial is concluded on the day of the final adjournment of such court, and before such adjournment grants an extension of time within which a motion for new trial in such cause can be made, under the provisions of chapter 5403, p 81, Laws 1905, such judge who so presided at the trial of such cause is fully authorized and empowered, within his own judicial circuit and in vacation, to hear and determine such motion for new trial, if presented to him within the time limited by such order of extension, notwithstanding the fact that at such time the time of his assignment to such other circuit as fixed by the Governor's order has expired, and he is fully authorized and empowered, at the time and place of his ruling upon such motion for new trial, to make an order granting time within which to prepare and present a bill of exceptions in such cause, and to certify and sign such bill of exceptions within the time so granted.

COUNSEL

W. W. Hampton and A. H. King, for the motion.

R. A. Burford and Carter & Layton, opposed. The defendant in error sued the plaintiff in error in an action for personal injuries in the circuit court of the Eighth judicial circuit for Alachua county. The case was tried at the fall term, 1906, and the verdict was rendered on the 1st day of December, 1906, the last day of the term of court. Hon. B. H. Palmer, judge of the Third judicial circuit presided over and acted as judge of the Eighth circuit for that term of court in Alachua county, in the place and stead of Hon. J. T. Wills, who was and is the judge in and for the Eighth judicial circuit, upon the orders of the Governor so to do. These orders, made by the Governor under section 8 of article 5 of the Constitution of 1885, are as follows:

'State of Florida, Executive Department.

'Tallahassee Fla., Oct. 22, 1906.

'Whereas, it has been officially made known to me that the Honorable Bascom H. Palmer, judge of the Third judicial circuit of Florida, is disqualified to sit in judgment on certain causes pending in the circuit court in and for the county of Suwannee, state of Florida, which causes are for trial at the fall term, A. D. 1906, of the said court, to be held in and for Suwannee county, Florida:

'Now, therefore, acting under the authority vested in the Governor of the state of Florida by the Constitution and laws of Florida, I do hereby order that Hon. Bascom H. Palmer, judge of the Third judicial circuit of Florida, and Hon. James T. Wills, judge of the Eighth judicial circuit of Florida, do exchange circuits for the period of two weeks, beginning from and including Monday, the 12th day of November, A. D. 1906, and ending Saturday, November 24, A. D. 1906; the Honorable Bascom H. Palmer to preside and act as the judge of the Eighth judicial circuit for the said period of time, and the Honorable James T. Wills to preside and act as judge of the Third judicial circuit for the said period of time.

'In testimony whereof, I have hereunto set my hand and caused the great seal of the state to be affixed at Tallahassee, the capital, this 22d day of October, A. D. 1906.

'[Seal.]

N. B. Broward,

'Governor of Florida.

'By the Governor. Attest:

'[Seal.]

'H. Clay Crawford,

'Secretary of the State of Florida.'

'State of Florida, Executive Department.

'Tallahassee, Fla., Oct. 27, 1906.

'Whereas, it is officially made known to me that there exists a necessity for a change of circuits between Hon. Bascom H. Palmer, judge of the Third judicial circuit of Florida, and Hon. James T. Wills, judge of the Eighth judicial circuit of Florida, for the two weeks commencing Monday, November 26, 1906:

'Now, therefore, acting under the authority vested in the Governor of the state of Florida, by the Constitution and laws of said state, I do hereby order the Honorable Bascom H. Palmer, judge of the Third judicial circuit of Florida, and the Honorable James T. Wills, judge of the Eighth judicial circuit of Florida, to exchange circuits for the period of two weeks, beginning from and including Monday, the 26th day of November, 1906; the Honorable Bascom H. Palmer to preside and act as judge of the Eighth judicial circuit of Florida for the said period of time, and the Honorable James T. Wills to preside and act as judge of the Third judicial circuit for the said period of time.

'In testimony whereof, I have hereunto set my hand and caused the great seal of the state to be affixed at Tallahassee, the capital, this 27th day of October, A. D. 1906.

'[Seal.]

N. B. Broward,

'Governor of Florida.

'By the Governor. Attest:

'H. Clay Crawford,

'Secretary of the State of Florida.'

On the 1st day of December, 1906, Judge Palmer, while presiding at the trial of this case and acting as judge of the Eighth judicial circuit for Alachua county, under the order of the Governor as aforesaid, made the following order in the instant case:

'The jury in the above cause having rendered their verdict in favor of the plaintiff on this day, and the said defendant, through its attorneys, having thereupon in open court given notice of its intention to make a motion for a new trial, and it appearing that the testimony in said cause is voluminous, and that the same was taken down by a stenographer who has not yet transcribed her notes, and that the same cannot well be transcribed within the time that this court may remain in session at the present term, and that the hearing of said motion is the only business of the court remaining undisposed of at the present term, it is therefore ordered, under the provisions of chapter 5403, Laws of Florida, that the time for making and presentation of said motion be, and the same is hereby, extended to and so as to include the 15th day of December, A. D. 1906; this order being necessary by reason of the facts above stated, and for the further reason that the court will adjourn for the term on this date.

'Done and ordered in open court on this 1st day of December, A. D. 1906.'

Thereupon the said term of the court was adjourned, and on the 15th day of December, in pursuance of the order of Judge Palmer of the 1st day of December, 1906, the defendant below, the plaintiff in error here, called up the motion for a new trial and presented same for a hearing before Judge Palmer at Lake City, Fla., within the Third judicial circuit. In accepting notice of the presentation of the motion for new trial to Judge Palmer, counsel for defendant in error stated that he did so, 'not waiving, but reserving and insisting upon the right to object to all procedure outlined or contemplated therein or thereby.' To the hearing and consideration of said motion for new trial by Judge Palmer the defendant in error filed the following protest: 'In the matter of the presentation of a motion for a new trial sought to be had herein under and in pursuance of notice of and for such presentation filed herein, comes now the plaintiff and objects to the presentation of such motion on the following grounds, to wit: (1) The Honorable Bascom H. Palmer, Judge of the Third judicial circuit, is without authority to hear and determine this motion, or to make any order in this cause pending in Alachua county, Florida, in the Eighth judicial circuit, while out of and beyond the territorial limits of said Eighth judicial circuit, to wit, at Lake City, Fla., in the Third judicial circuit. (2) The Honorable Bascom H. Palmer, judge of the Third judicial circuit of Florida, was by orders of the Governor of this state, authorized and directed to exchange circuits with the Honorable J. T. Wills, judge of the Eighth judicial circuit, and the time of said exchange had seased and determined, as shown by certified copies of said orders here exhibited to the court and made parts of this objection, and the said judge of the Third circuit has no other and further jurisdiction to hear, consider, or determine this motion, or to make any order in this cause, pending in the Eighth circuit as aforesaid.' Thereupon Judge Palmer made an order overruling these objections, and on the same day, the 15th day of December, 1906, denied and overruled the motion for a new trial in the following order: 'The motion for new trial came on to be heard, and was argued by counsel, and upon consideration thereof it is ordered and adjudged that said motion by denied and defendant allowed 90 days in which to prepare and have settled and signed his bill of exceptions. To which...