Thompson v. State

• Decision Date: 24 November 1908
• Citation: 47 So. 816,56 Fla. 107
• Parties: THOMPSON v. STATE.
• Court: Florida Supreme Court

47 So. 816

56 Fla. 107

THOMPSON v. STATE.

Florida Supreme Court

November 24, 1908

Headnotes Filed December 18, 1908.

In Banc. Error to Circuit Court, Taylor County; Bascom H Palmer, Judge.

Prompt Thompson was convicted of fraudulently obtaining money under a contract to perform services, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

The majority of this court is of opinion when it is provided in an act that it should go into effect immediately upon its approval by the Governor, and it becomes a law without the approval of the Governor, it does not take effect under the Constitution until 60 days from the final adjournment of the session of the Legislature at which it may have been enacted.

Under section 1, c. 5678, p. 182, Laws 1907, it is made a crime to contract with another to perform for him services of any king with intent to procure money or other thing of value thereby and not to perform the service contracted for. There must be an intent not to perform the service when the contract is made to sustain a conviction.

COUNSEL H. J. McCall, for plaintiff in error.

OPINION

HOCKER J.

The plaintiff in error was indicted by the grand jury of Taylor county under chapter 5678, p. 182, Laws 1907, for obtaining money from the Perry Naval Stores Company under a contract to perform service with intent not to perform the service contracted for. The indictment charges that he entered into the contract on the 27th of July, 1907. He was tried convicted, and sentenced at the Spring term, 1908. The judgment is here for review.

The statute upon which this indictment is based was passed by the Legislature of 1907, and the last section provides it should go into effect immediately upon its approval by the Governor. It became a law without the approval of the Governor. The Legislature adjourned on the 31st of May, 1907.

Section 18, art. 3, Const. 1885, provides: 'No law shall take effect until sixty days from the final adjournment of the session of the Legislature at which it may have been enacted, unless otherwise specially provided in such law.' Section 28 of article 3 of the said Constitution provides: 'Every bill that may have passed the Legislature shall, before becoming a law, be presented to the Governor; if he approves it he shall sign it, but if not he shall return it with his objections to the house in which it originated, which house shall cause such objections to be entered upon its journal, and proceed to reconsider it; if after such reconsideration, it shall pass both houses by a two-thirds vote of members present, which vote shall be entered on the journal of each house, it shall become a law. If any bill shall not be returned within five days after it shall have been presented to the Governor (Sunday excepted) the same shall be a law, in like manner as if he had signed it. If the Legislature, by its final adjournment prevent such action, such bill shall be a law, unless the Governor, within ten days after the adjournment, shall file such bill, with his objections thereto, in the office of the Secretary of State, who shall lay the same before the Legislature at its next session, and if the same shall receive two-thirds of the votes present it shall become a law.'

The facts presented in the case of Atlantic Coast Line R. Co. v. Mallard, 53 Fla. 515, 43 So. 755, are unlike those of the instant case. In the former this court held that where it was provided an act should 'take effect immediately upon its passage and approval,' and the Governor did not veto it or approve it, it became as valid a law as if he had approved it. But it is not there held that such an act takes effect immediately as though he had approved it, and we were not then called on to decide this point. The only question presented was whether the act became a valid law when not approved and not vetoed by the Governor. Here the question is: When does the act take effect as a valid law? Under our Constitution, as in that of most of the states, the Governor is a constituent of the Legislature. 1 Lewis' Sutherland STATUTORY CONSTRUCTION, § 60. THE GENerAl policy Of our constitution is that no law shall take effect until 60 days from the final adjournment of the session of the Legislature at which it may have been enacted, unless otherwise specially provided in such law. Section 6, art. 16, requires the Legislature to provide for the speedy publication of the laws. These are most humane and wise provisions intended to afford opportunity to the people to ascertain the existence of the law and to accommodate themselves to it, and evidently a law should not be put into effect immediately upon its passage unless some exigency requires that it should be done. The Legislature, of course, is the sole judge of the existence of such an exigency, but under the Constitution it may also provide under what circumstances an act shall go into effect immediately. In the instant case the Legislature has made the question whether the act shall go into effect immediately dependent upon its approval by the Governor, as it had a right to do. The Governor might not have wholly disapproved of the act, but might have objected to its going into effect at once, being penal and drastic in its nature. If the Legislature intended an active or positive approval as a condition precedent to the law taking effect before the usual time fixed by the Constitution, and the act did not receive that approval, it could not under the Constitution become effective until 60 days after final adjournment. The Legislature knew, of course, that the Governor could withhold and refuse his approval, and that in such event the law could only go into effect 60 days from the final adjournment, unless some unnatural construction should be placed upon the language of the act, so as to make it mean what the Legislature did not intend it should mean. For the provision that, in case the Governor does not return or approve an act, it shall go into effect 'in like manner as if he had signed it,' only refers to the manner of its becoming a law, and not necessarily the time within which it shall take effect. The time when an act goes into effect is governed by another provision of the Constitution, viz., section 18, art. 3, supra. We have not been able to find any analogous case under constitutional provisions like ours. Some Constitutions contain what are called emergency provisions authorizing the Legislature in case of emergency to put an act into effect immediately when an emergency exists. It seems to be held that such Constitutions make the Legislature the sole judge of the existence of the emergency, and such an act will go into effect immediately, even though it be not approved by the Governor. Biggs v. McBride, 17 Or. 640, 21 P. 878, 5 L. R. A. 115; Sinking Fund Commissioners v. George, 104 Ky. 260, 47 S.W. 779, 84 Am. St. Rep. 454. We have no such provision. Under our Constitution the Legislature may specially provide when an act shall go into effect. In the instant case it made the going of the act into immediate effect dependent upon its approval by the Governor. It had the power to do this, and it was certainly its clear intention, if we are to take the language of the act in its ordinary and usual meaning.

It appears that, when the Legislature intends a law to take effect without reference to approval by the Governor, it provides as was done in chapters 5636, 5638, pp. 125, 126 Acts 1907, that 'this act shall take effect immediately on becoming a law,' or that 'this act shall take effect...