Horton v. Kyle
| Citation | 81 Fla. 274,88 So. 757 |
| Parties | HORTON v. KYLE et al. |
| Decision Date | 08 March 1921 |
| Court | Florida Supreme Court |
Rehearing Denied May 12, 1921.
Bill by Ralf A. Horton against W. C. Kyle and others. From an order denying a temporary restraining order and dismissing a bill for injunction, plaintiff appeals.
Decree reversed.
On Petition for Rehearing.
Syllabus by the Court
In view of journals, held, there could be no presumption that notice of local bill was published in locality. Where the legislative journals show that 60 days did not intervene between the date of the proclamation of the Governor calling an extra session of the Legislature and the date of its adjournment, there can be no presumption that notice of intention to apply for the passage of a local or special bill was published in the locality where the matter or thing to be affected was situated and proof thereof established in the Legislature as required by the Constitution.
Local act unconstitutional in absence of constitutional notice. Where only 22 days elapsed between the date of the proclamation of the Governor calling the Legislature in extra session and the date of its adjournment, there is no presumption that the constitutional notice required before a local or special bill can be passed was given, and where it is sought to pass a local or special act at such an extra session without establishing in the Legislature proof of the publication of the notice, such an act is unconstitutional and void as not having passed the Legislature.
Legislature cannot validate act not properly passed. It is not competent for the Legislature, by subsequent proceedings, to validate an act that was never passed in the Legislature in accordance with the requirements of the Constitution.
Appeal from Circuit Court, Broward County; E. B Donnell, judge.
Evans & Bell, of Miami, for appellant.
Atkinson & Burdine, of Miami, and Glenn Terrell, of Tallahassee, for appellees.
This is an appeal from an order denying a temporary restraining order and dismissing a bill for injunction, whereby it was sought to restrain the collection of a drainage tax levied and assessed under the provisions of chapter 7758, Laws of Florida, passed at the extra session of the Legislature which convened on the 25th day of November, 1918.
The bill charges that chapter 7758 is a special or local law, and is unconstitutional and void, because it was not established in the Legislature that notice of intention to apply for the passage of such local or special bill was published in the locality where the matter or thing affected was situated at least 60 days prior to the introduction into the Legislature of such bill; it further alleges that----
'The journal of the House of Representatives of the state of Florida, which sets forth the doings and proceedings of the said House of Representatives in the special session aforesaid, shows upon its face affirmatively that no such notice was given, in that the said journal shows that the said extraordinary session of the Legislature was convened in pursuance of a proclamation of the Governor of the state of Florida, of date November 15, 1918, and that your orator charges that the said journal shows that there was not sufficient time intervening between the date of the issuance of the said proclamation and the date of the passage of the said local or special law to have given the said notice as is required by the Constitution of the state of Florida, and your orator charges that the said showing upon the face of the journal of the said House of Representatives is an affirmative showing that no such notice was given and that the said local or special law was not passed in accordance with the provision of the Constitution of the state of Florida.'
The legislative journals show that the Legislature convened in extra session on the 25th day of November, 1918, and that the proclamation of the Governor calling this extra session was made on the 15th of November, 1918. Chapter 7758 of the Laws of Florida, the constitutionality of which is assailed in this proceeding, was passed at this extra session.
Section 21, art. 3, of the Constitution of Florida, provides:
We are unwilling to extend the doctrine of Stockton v. Powell, 29 Fla. 1, 10 So. 688, 15 L. R. A. 42, beyond what that case decided. The court was then dealing with a law passed at a regular session of the Legislature, and every member thereof, and every person in the state, knew the date when the Legislature would convene, and there was ample time to have given the notice required by the Constitution, so the presumption that it was given may not have been unreasonable with the lights the court then had before it.
There was no way in which a member of the extra session or any one else in the state could have known that the Legislature would be called together in extra session prior to the Governor's proclamation, and for us to presume that the necessary notice was given would be to presume that the members had the gift of prevision.
The decision in Stockton v. Powell, supra, is based upon the presumption that----
No 'branch of the legislative department will give its sanction to any such local or special legislation until legal and satisfactory evidence that such notice has been published shall be 'established in the Legislature."
This presumption leads to a conclusion which we know is not so, and we are unwilling to extend it further by adopting another violent presumption--that notice was given of intention to do something at an extra session of the Legislature before it was known that there would be an extra session.
The journals show that the Governor's proclamation calling the extra session of the Legislature was made on November 15, 1918; and in obedience thereto the Legislature met on November 25, 1918. It adjourned on December 7, 1918. Under the Constitution such session could not exceed 20 days. As only 22 days elapsed between the date of the proclamation and the adjournment of the Legislature, the constitutional notice could not have been given, and evidence of such notice could not have been established in the Legislature before such bill was passed. This being so, the act was not passed in conformity to the requirements of the Constitution, and is void.
The decree is reversed.
On Petition for Rehearing.
On petition for rehearing appellees suggest that the court overlooked and did not consider the effect of chapter 7965, Special Acts of 1919, purporting to validate 'all the acts, proceedings, contracts and records of the Napoleon B. Broward drainage district * * * had or done pursuant to and under the provisions of chapter 7430, chapter 7758, Laws of Florida.'
As counsel for appellees furnished the court with a memorandum of authorities in support of his petition, and subsequently submitted additional authorities, the matter is now fully presented, and we will dispose of it on its merits, as if a rehearing were granted.
We have carefully considered the authorities cited, and find nothing in them that calls for any change in the decision of this court whereby the judgment of the lower court was reversed. The provision of the Constitution affecting this case is:
Section 21, art. 3, Constitution of Florida.
We held that it was not established in the Legislature before the bill was passed that the notice required by the Constitution was given, and that the bill was not constitutionally passed.
The question now presented by the petition is, Can the Legislature validate what is claimed to be 'an act' which was never passed by the Legislature, or validate 'acts, proceedings, contracts and records' purporting to have been done or made under what is claimed to be 'an act of the Legislature,' but which was never, in law, 'passed'?
The cases cited by the petitioner do not support the affirmative of this proposition, as will be seen from brief references to them. In Lewis County v. Gordon, 20 Wash. 80, 54 P. 779, the court said:
...
To continue reading
Request your trial
-
Smith Bros. v. Williams
...of 1928 to section 21, art. 3, of the Constitution, and the statute was not enacted at a special session of the Legislature. Horton v. Kyle, 81 Fla. 274, 88 So. 757. The of the provisions of section 7 of the act as to prorating costs, etc., even if well founded, would not of itself render t......
-
Whitney v. Hillsborough County
...decided at this term) when, as here, the law was enacted at a regular, not an extraordinary, session of the Legislature. See Horton v. Kyle, 81 Fla. 274, 88 So. 757, this court declined to apply the rule because it was obviously impossible for the required notice to have been given during t......
-
Jackson Lumber Co. v. Walton County
...10 So. 688, 15 L. R. A. 42; Rushton v. State, 58 Fla. 94, 50 So. 486; Vann v. State, 65 Fla. 160, 61 So. 323. The case of Horton v. Kyle, 81 Fla. 274, 88 So. 757, is applicable here, as the act now under review was passed at a regular session of the Legislature. The remedy for the alleged a......
-
Smith Bros., Inc. v. Williams
...& N. R. Co. v. Welles, 260 U.S. 8, 43 S.Ct. 3, 67 L.Ed. 100; Peterson v. Town of Davenport, 90 Fla. 71, 105 So. 265. In Horton v. Kyle, 81 Fla. 274, 288, 88 So. 757, 761, the subsequent statute was held to be inoperative on the theory that it was an attempt to validate the prior invalid ena......