State ex rel. Flink v. Canova

• Decision Date: 20 February 1957
• Citation: 94 So.2d 181
• Parties: STATE of Florida, on the relation of Harry FLINK, Appellant, v. F. Allan CANOVA, S. E. Simmons, A. William Morrison, W. H. Blackwell and Dewey H. Johnson, as The Florida Board of Pharmacy, Appellees.
• Court: Florida Supreme Court

Page 181

94 So.2d 181

STATE of Florida, on the relation of Harry FLINK, Appellant, v. F. Allan CANOVA, S. E. Simmons, A. William Morrison, W. H. Blackwell and Dewey H. Johnson, as The Florida Board of Pharmacy, Appellees.

Supreme Court of Florida, En Banc.

Feb. 20, 1957.

Rehearing Denied April 24, 1957.

Robert H. Givens, Jr., Miami, for appellant.

Richard W. Ervin, Atty. Gen., and George E. Owen, Asst. Atty. Gen., for appellees.

O'CONNELL, Justice.

Harry Flink, appellant, was relator below and F. Allan Canova, et al., as the Florida Board of Pharmacy, appellees, were respondents. They will be referred to here as they stood in the court below.

Harry Flink, appellant, sought a peremptory writ of mandamus requiring the Florida Board of Pharmacy to permit him to take an examination to be given by the board to determine his qualifications to practice pharmacy in this state. The circuit court quashed the alternative writ of mandamus which had been issued theretofore and Flink, the relator, appealed to this Court for review of such order.

In the lower court, the relator recited that he was qualified to take the examination for registration as a pharmacist under the provisions of Ch. 25238, Acts of Fla.1949, F.S.A. §§ 465.02, 465.07, but that he was not so qualified under the provisions of Ch. 28150, Acts of Fla.1953. The last mentioned chapter is now Ch. 465, F.S.1955, F.S.A. Relator contended that said Ch. 28150 was invalid in that it embraced two or more separate and distinct subjects in violation of Florida Constitution, art. III, Sec. 16, F.S.A. He reasons that if Ch. 28150 is invalid, Ch. 25238 was not repealed thereby and that, consequently, he was entitled to take the examination under the provisions of Ch. 25238.

The respondents contended that Ch. 28150 did not offend Florida Constitution art. III, Sec. 16, and that, even if it did, the inclusion of the same subject matter in a revision of the statute adopted in Ch. 29615, Acts of Fla.1955 (a general revision of the laws of the State of Florida) cured any defect in the original enactment.

In its order quashing the writ, the circuit court did not dwell on the question of whether the law in question embraced two or more separate and distinct subjects, other than as follows:

'The Court is of the opinion that, based upon precedent and logic the enactment of the Florida Statutes, 1955, had the effect of making the contents of those statutes the law of the state, regardless of any defects in the original enactment of any statute brought forward in this revision * * *. It is argued by Relator that all of the decisions announcing this rule relate to cases involving deficiencies in the title to the acts involved rather than the inclusion of more than one subject in both the title and the body of the act. The arguments in favor of the rule apply more strongly to situations of the kind last mentioned. There is greater danger to the public in the enactment of laws not disclosed by the title to the bill of which they are a part and the later inclusion of those laws in a general revision of the statutes thus curing any defects in their original enactment than there is in the enactment of two incongruous statutes in one act but both described in the title and thus called to the attention of the Legislator and the public, and the curing of any invalidity by the later inclusion of both in a general revision of the statutes.'

The balance of the court's order consisted of an able elaboration and defense of the rule. It did further comment, however, that:

'It must be borne in mind that the constitutional provisions regulating the mechanics of the legislative processes are designed to set up a system by which statutes are enacted and published in such a way as to prevent fraud and surprise in the enactment of statutes (each act having a title expressing its subject), [and] to prevent 'log-rolling' (each act relating to but one subject) * * *.'

The provision of the Constitution, Sec. 16 of art. III, under consideration reads as follows:

'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.'

This provision appeared in the State of Florida's Constitution of 1868, but not in any earlier constitution.

A treatise which appears to have been recognized at about that time throws some light on the purpose of the addition to this state's constitution. In Cooley, A Treatise on the Constitutional Limitations (3rd ed. 1874), at pp. 141-146, it is remarked that formerly the title of an act was not considered a part of it and, anciently, acts had no title prefixed at all but that, recently, titles had come to possess very great importance by reason of constitutional provisions. Cooley emphasized that in considering these provisions, it was important to regard the evils designed to be remedied. After reviewing the provisions of several states, Cooley then said the purpose of those provisions was (1) to prevent hodge podge or 'log rolling' legislation, i. e., putting two unrelated matters in one act; (2) to prevent surprise or fraud by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon. He commented that the general disposition of the courts was to construe the constitutional provision liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.

A review of the cases in this jurisdiction shows an accord between the thinking of our courts and the observations of Cooley, referred to above. As indicated by the order of the lower court now under review, there seems to have been some concern in our courts to prevent the evil of matters being inserted in a body of an act whose title does not properly put the people on notice of such content. The evil of 'log rolling' is of course lesser, in that it is easier to detect, for the title is notice, per se, of the evil involved.

It is perfectly clear, from reviewing prior decisions of this Court, that if a matter is germane to or reasonably connected with the expressed title of the act, it may be incorporated within the act without being in violation of Sec. 16 of art. III of our constitution. Provisions which are necessary incidents to, or tend to make effective or promote the object and purpose of the legislation included in the subject expressed in the title of the act may be regarded as matters properly connected with the subject thereof. Smith v. Chase, 1926, 91 Fla. 1044, 109 So. 94. Numerous supporting cases may be found by reference to 25 F.S.A. art. 3, § 16, Notes of Decisions, pt. 11. In determining if matters are properly connected with the subject, the test is whether such provisions are fairly and naturally germane to the subject of the act, or are such as are necessary incidents to or tend to make effective or promote the objects and purposes of legislation included in the subject. City of Ocoee v. Bowness, Fla.1953, 65 So.2d 7.

Also, if a matter properly connected with the subject is also named in the title to the act, no material harm has been done. A title merely mentioning matters germane to one subject is not invalid as relating to more than one subject; amplification of the title does not vitiate it. State ex rel. Davis v. Rose, 1929, 97 Fla. 710, 122 So. 225. State ex rel. Moodie v. Bryan, 1905, 50 Fla. 293, 39 So. 929 (this case contains a good review of earlier cases on this matter). Smith v. Chase, supra. Lewis v. Leon County, 1926, 91 Fla. 118, 107 So. 146. Fine v. Morgan, 1917, 74 Fla. 417, 77 So. 533.

The subject of an act is the matter to which it relates and the object is its general purpose. Spencer v. Hunt, 1933, 109 Fla. 248, 147 So. 282. It is of course not...