State v. Helseth

• Decision Date: 10 February 1932
• Citation: 104 Fla. 208,140 So. 655
• Parties: STATE ex rel. BOARD OF COM'RS OF INDIAN RIVER MOSQUITO CONTROL DIST. et al. v. HELSETH et al. County Com'rs.
• Court: Florida Supreme Court

140 So. 655

104 Fla. 208

STATE ex rel. BOARD OF COM'RS OF INDIAN RIVER MOSQUITO CONTROL DIST. et al. v. HELSETH et al. County Com'rs.

Florida Supreme Court, Division B.

February 10 1932

Mandamus proceeding in original jurisdiction by the State of Florida on the relation of the Board of Commissioners of Indian River Mosquito Control District and others, against Albert O Helseth and others, as and constituting the Board of County Commissioners of Indian River County, and others.

Alternative writ of mandamus quashed, and proceeding dismissed.

Dismissing proceedings 138 So. 625.

COUNSEL Vocelle & Mitchell, of Vero Beach, for relators.

C. P Diamond, of Vero Beach, for respondents.

OPINION

DAVIS J.

This is an original proceeding in which an alternative writ of mandamus was issued by this court commanding the respondents, county commissioners of Indian River county, to carry into effect a tax levy of six mills on the taxable property in Indian River county located within the territorial limits of Indian River mosquito control district which was created and exists under chapter 11128, Sp. Acts of 1925, as amended by chapter 14381, Sp. Acts of 1929.

On December 22, 1931, the court overruled respondents' demurrer and motion to quash the alternative writ and granted the motion of relators for a peremptory writ. See State ex rel. Board of Commissioners of Indian River Mosquito Control Dist. v. Board of County Commissioners (Fla.) 138 So. 625. Promptly thereafter respondents filed their motion to be allowed to interpose an answer and return to the alternative writ, and tendered with their motion the answer and return which they proposed to file. On January 14, 1932, the court permitted the filing of the answer and return. The case is now before the court for final disposition upon the answer, a replication to the answer, a demurrer to the replication, a motion by respondents to quash the alternative writ, and a motion by relators for the issuance of a peremptory writ, the answer and return to the contrary notwithstanding. Chapter 11128, Laws of Florida, Sp. Acts 1925, created the Indian River mosquito control district and authorized a tax levy not exceeding three mills for the purposes of the district. Chapter 14381, Laws of Florida, Sp. Acts of 1929, purports to amend chapter 11128, Sp. Acts of 1925, so as to authorize a tax levy not to exceed ten mills for the purposes of the district. In this case the requirement of the alternative writ is that the respondents be commanded to levy a tax of six mills, so the commissioners of the Indian River mosquito control district, who are the relators here, necessarily must rely upon chapter 14381, Sp. Acts of 1929, as authority for a tax levy of six mills and as the legal basis for the issuance of a peremptory writ of mandamus in this case to compel such a levy.

The attack on the alternative writ which is now asserted by the answer and return is that the amendatory act, chapter 14381, Sp. Acts of 1929, was never constitutionally passed by the Legislature in accordance with requirements of section 17 of article 3 of the state Constitution as shown by the Senate Journal. A replication has been filed to the answer and a demurrer has been filed to the replication, all of which go to that question.

The enrolled bill as filed in the office of Secretary of State, shows by indorsements on its face that it was read in the Senate three times and duly passed. In the absence of any affirmative showing in the journals that it was not so read, the statute is presumed to have been duly enacted, unless the legislative journal shows that the mandatory requirements of the Constitution for the enactment of statutes was not complied with in the consideration and passage of the particular bill. State v. Carley, 89 Fla. 361, 104 So. 557.

But it is also contended that the Senate Journal of 1929 fails to show the required constitutional yea and nay vote on the final passage of the bill. In this connection there is exhibited to the court a certified copy of the journal entries of the House and Senate with reference to the passage of chapter 14381, which it appears was originally introduced into the House of Representatives as House Bill No. 201 of that session. The journal entries of the Senate so exhibited do not indicate the second and third reading of the bill, nor that a yea and nay vote was taken on the final passage of the bill, although there is included in the certified copy the report of the enrolling committee which shows the enrollment of the act in question and the certificate of the President and Secretary of the Senate that it had been presented to the Governor for his approval after being passed.

But there is no showing whatsoever in either the bound volume of the Senate Journal of 1929 nor in any printed copy of the daily journal of that session that the constitutional yea and nay vote was taken in the Senate on the final passage of the bill. To meet this objection the relators have had prepared and exhibited to the court, under the hand and seal of the Secretary of State, what is termed a 'supplemental errata sheet, 1929 Session,' which purports to have been made on October 26, 1931, and filed in the office of Secretary of State by Robert W. Davis, Secretary of the Senate, at its 1929 session. It is thereupon suggested that because the 1929 Legislature not only authorized but directed the chief clerk of the House and the Secretary of the Senate to correct errors of form and substance in journals of the respective houses, and expressly provided that such corrections when so made should be and become a part of the journals and a record of the proceedings of the legislative session of 1929, that said 'supplemental errata sheet' which shows the several readings and final passage of the bill in question by a constitutional yea and nay vote is sufficient to meet the requirements of the Constitution in the respects in which the printed volume of the journal, as well as the daily printed journal, are deficient.

House Concurrent Resolution No. 26, which is relied on to have this effect, reads as follows:

'Be it Resolved by the House of Representatives, the Senate Concurring:

'That the Chief Clerk of the House of Representatives and the Secretary of the Senate be, and they are hereby authorized and directed to correct and revise the respective Journals of the Senate and the House of Representatives for the last three days of the legislative session to the end, that the said Journals as finally incorporated into the volumes may present a truthful and accurate account of the proceedings of the two houses. And be it further

'Resolved by the House of Representatives, the senate concurring, That the Chief Clerk of the House of Representatives and the Secretary of the Senate, be and they are hereby further authorized and directed to prepare and cause to be printed with the bound journals of the respective houses, errata sheets, which shall note any errors of form and substance in the said bound journals covering the period of the entire session of 1929, and that the said errata sheet when so made, attached and printed in connection with the bound Journals shall be and become a part thereof as a record of the history and proceedings of the legislative session of 1929. * * *'

Whatever may be the constitutional power of the Legislature to pass a resolution of the kind just referred to, and thereby confer upon the clerk of the House of Representatives and the Secretary of the Senate the authority to make corrections and supply omissions in legislative journals after the session of the Legislature had...