Douglas v. Webber

• Decision Date: 08 April 1930
• Citation: 99 Fla. 755,128 So. 613
• Parties: DOUGLAS et al. v. WEBBER et al.
• Court: Florida Supreme Court

128 So. 613

99 Fla. 755

DOUGLAS et al. v. WEBBER et al.

Florida Supreme Court

April 8, 1930

Rehearing Denied May 16, 1930.

En Banc.

Suit F W. Webber and others against J. M. Douglas and others. Decree for complainants, and defendants appeal.

Affirmed.

ELLIS STRUM, and BUFORD, JJ., dissenting in part, and BROWN, J dissenting.

Appeal from Circuit Court, Marion County; W. S. Bullock, judge.

COUNSEL

Martin & Hocker, D. Niel Ferguson, and Anderson & Anderson, all of Ocala, for appellants.

Hampton & Greene, of Ocala, for appellees.

OPINION

WHITFIELD P.J.

The appeal herein is from the following decree of the circuit court:

'Heretofore this Court entered an order awarding a temporary injunction restraining the holding of the election as called by the Board of County Commissioners under and pursuant to the terms of Chapter 14217. Thereafter, F. W. Ditto and certain other citizens undertook to intervene, and were permitted to file an answer in this cause, and they having filed an answer and demurrer, the complainants moved to strike the same upon several grounds, and upon consideration thereof by the order and decree of this Court of date September 20th, 1929, the said answer was stricken, and the said demurrer was overruled and denied. And the complainants by their counsel, and defendants, Board of County Commissioners and the Clerk, by their counsel, having agreed that the decision of this Court granting a temporary injunction, and later striking the answer of the interveners and denying the motion to dissolve the injunction, amounts to a final termination of the cause, and that there is no matter of fact involved in it which makes it necessary to have a reference, and that the Court shall proceed to enter final decree upon the bill and answer, and the parties now being present in Court, and the matter having been submitted on bill and answer,----

'It is therefore Ordered, Adjudged, and Decreed:

'1. That the equities of this cause are with the complainants, and that the Act of the Legislature aforesaid is unconstitutional and void.

'2. That the defendants be and they are perpetually restrained and enjoined from holding the election under and pursuant to the terms of the Act of the Legislature aforesaid.

'3. That the Act of the Legislature aforesaid being unconstitutional and void, the Board of County Commissioners and the Clerk of the Court aforesaid, are directed and required to advertise and sell the bonds remaining unsold, as in their judgment is proper, and at such time as they find proper, to sell the same when a suitable market therefor can be had as if the Act of the Legislature aforesaid had not been passed.'

The question to be determined is whether the evidence that the due publication of the required notice of the proposed local law was 'established in the Legislature' in the manner specifically prescribed by the Constitution.

The courts have no substantive power to nullify duly authenticated legislative enactments. But in justiciable cases courts of competent jurisdiction may adjudicate that, in the process of its enactment or in its provisions or in its effect or operation, a legislative enactment is in conflict with some express or implied provision of the state Constitution or with the dominant federal authority within its sphere, and that as a consequence the enactment is inoperative either in whole or in part or as applied to the particular case. The Constitution requires each house of the Legislature to keep a journal of its proceedings, and also mandatorily requires that in stated legislative proceedings designated action shall be taken and that particular matters shall be entered upon the journal. This authorizes the courts in appropriate litigated cases to examine the legislative journals and to determine therefrom whether, in the enactment of a duly challenged statute, the Constitution was complied with as to the matters required by the Constitution to be entered upon the journals. If in a justiciable case it be duly shown by the journal of either house of the Legislature that a bill was not read as required by the Constitution, or that the vote on final passage was not taken by yeas and nays and entered on the journal, or that a quorum was not present, or that a majority of the members present (at least a quorum being present) did not vote for the passage of a bill, or that two-thirds of the members present (a majority of all the members being present) did not pass a bill vetoed by the Governor, or that two-thirds of the members elected to each house did not vote for the passage of the classes of bills referred to in section 11, art. 16, or that the requirements as to giving notice of proposed or special law were not complied with, or could not have been complied with as in Horton v. Kyle, 81 Fla. 274, 88 So. 757, or that the bill authenticated as a law is not the bill that was passed, State ex rel. Boyd v. Deal, 24 Fla. 293, 4 So. 899, 12 Am. St. Rep. 204; Gwynn v. Hardee, 92 Fla. 543, 110 So. 343, or was passed without an enacting clause, In re Advisory Opinion to Governor, 43 Fla. 305, 31 So. 348, and perhaps in other instances, the courts may examine the journals or other duly authorized and controlling records to determine therefrom whether the affirmative requirements of the Constitution as prerequisites to the introduction of a legislative bill or as to essential steps to be taken by the Legislature in enacting a law, were duly complied with; and, if not complied with, to so adjudicate, whereupon an enactment duly adjudged to have been not duly introduced or not duly passed, or to violate superior law, will be inoperative by the vital force of the Constitution.

When an enactment, though duly introduced and passed, contains provisions that violate paramount law, as by containing subjects forbidden by the Constitution, §§ 16 and 30, art. 3, Opinion of the Justices, 14 Fla. 283, 285, or by containing provisions that violate or conflict with the Constitution or with dominant federal authority, the courts may in proper cases adjudicate such conflict with the paramount law, and the enactment will be inoperative to the extent of the conflict, whether it be the whole or a severable part of the enactment or only as the enactment is applied to the case being litigated, for a statute may be valid in part or may be validily applied in one case and not in a case of a different nature or consequence.

Article 2 of the Constitution provides:

'The powers of the government of the State of Florida shall be divided into three departments--legislative, executive and judicial; and no person properly belonging to one of the departments shall exercise any power appertaining to either of the others, except in cases expressly provided for by this Constitution.'

The judicial department is not given a substantive power to review and to approve or disapprove a decision of the legislative department that it may exercise a particular governmental power or that such power may be exercised in a particular manner; but, in adjudicating rights in a justiciable case, a court of competent jurisdiction may determine, in so far as the rights being adjudicated are involved, whether a power that has been exercised by the legislative department, as it affects the particular case, properly appertained to that department or whether the power, if properly appertaining to the department, was exerted in the manner required by the Constitution, when the matter may be determined by reference to the state Constitution or to the dominant federal law if applicable, or when the matter may be determined by reference to a record provided for or contemplated by the Constitution, for that purpose imports verity and is identified or designated by the Constitution or under constitutional authority, and that is of equal or superior legal force to the action that is challenged. See Ewing Tp. v. Trenton, 57 N. J. Law, 318, 31 A. 223.

The organic provision that, when a bill is enacted in the manner prescribed and is signed by the Governor or passed over his objections in the manner prescribed, 'it shall become a law,' contemplates an enactment in the manner commanded and within the limitations fixed by the Constitution, and that the provisions of the enactment shall not in terms or in its application violate any provision of fundamental law. When a statute is duly authenticated, its due enactment is assumed by the courts whose province it is to interpret and apply the statute, if its provisions accord with controlling organic law. The courts have no power to review the proceedings of the Legislature in enacting a statute, for the purpose of determining its due enactment, unless the Constitution shows an intent that the courts shall exercise such power in litigated cases, as by making the validity of the enactment depend upon defined facts that are required to be evidenced by a record of file that is expressly designated by the Constitution or under its authority and importing verity as it affects the validity of a duly authenticated statutory enactment.

Original section 21, art. 3, Constitution of 1885, provides that 'no local or special bill shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least sixty days prior to the introduction into the legislature of such bill, and in the manner to be provided by law. The evidence that such notice has been published shall be established in the legislature before such bill shall be passed.'

Chapter 3708, Acts of 1887, sections 94, 95, Compiled General Laws 1927,...