Wade v. Atlantic Lumber Co.

• Decision Date: 06 April 1906
• Citation: 41 So. 72,51 Fla. 638
• Parties: WADE v. ATLANTIC LUMBER CO.
• Court: Florida Supreme Court

41 So. 72

51 Fla. 638

WADE v. ATLANTIC LUMBER CO.

Florida Supreme Court

April 6, 1906

On Rehearing, June 1, 1906.

In Banc. Appeal from Circuit Court, Taylor County; Bascom H Palmer, Judge.

Bill by the Atlantic Lumber Company against Neill G. Wade. Decree for plaintiff, and defendant appeals. Reversed, and bill dismissed.

Syllabus by the Court

SYLLABUS

When the journals of the Legislature speak as to the title of an act, and the enrolled bill contains a variance therefrom, the journals will control.

The title, 'An act to incorporate the Atlantic, Suwannee River & Gulf Railroad Company' (Laws 1893, p. 223, c 4267), is not sufficiently broad to apprise the Legislature and the people that a land grant to be selected by the company from the state at large will be included thereunder and such grant, not being within the subject expressed in the title, is void.

The mere fact that legislative grants have been at various times included in acts with titles too restrictive is not sufficient to force the courts to disregard a plain mandate of the Constitution directed against surreptitious legislation.

On Rehearing.

Concession of counsel as to irregularity in the passage of a law will not influence the court in determining the constitutionality of an act of the Legislature.

Parol evidence is not admissible against the affirmative showing of the journals of the Legislature.

COUNSEL Wm. Wade Hampton, R. W. Williams, W. S Jennings, and Bryan & Bryan, for appellant.

Maxwell & Reeves and Jno. T. Walker, for appellee.

OPINION

COCKRELL J.

The Atlantic Lumber Company, claiming as assignee of the Atlantic, Suwanee River & Gulf Railway Company, filed its bill of complaint in the circuit court for Taylor county against Neill G. Wade, praying that the said Wade be decreed to hold certain 'swamp and overflowed' lands, deeded to him by the trustees of the internal improvement fund, in trust for the complainant, and that it be adjudged that the complainant is the rightful owner of the lands. There were prayers for injunctions and general relief. To this bill a demurrer was interposed, and this appeal is taken from the order of the court overruling the demurrer.

Many interesting questions of grave import have been ably and exhaustively argued before us, respecting the power of the Legislature to interfere with the trustees of the internal improvement fund to the extent sought to be done in the instant case and also with reference to the powers, duties, and discretions conferred upon the said trustees by the act of 1855, as also the whole policy and scheme underlying the donation by the United States of the swamp and overflowed lands to the state of Florida.

On view, however, of the conclusions reached by the court, it is not only not necessary to determine these questions; but it would be improper for us to do so. The court should not lightly pass upon the power of a co-ordinate branch, but only when necessity impels such step.

Before we are called upon to pass upon the power of the Legislature to make the grant claimed here, we are confronted with the preliminary question whether the Legislature has sought to exercise such power in the manner and form prescribed by the Constitution; and, having reached the conclusion that it has not done so, we shall proceed no further.

The complainant below, appellee here, bases its claim solely upon sections 9, 10, 18, c. 4267, pp. 225, 228, of the Laws of 1893. These sections read as follows:

'Section 9. That the state of Florida, for the purpose of aiding the construction of said railroad, its branches and extensions, hereby grants unto said company ten thousand acres of land for each mile of road it may construct, of the lands granted to the state of Florida, under the act of Congress of September 28, 1850, and which are commonly known as the swamp and overflowed lands, said lands to be deeded to the company by the trustees of the internal improvement fund, as fast as each five miles of said road or any of its branches are graded, cross-tied and rails laid thereon.

'Sec. 10. That upon the filing of a certificate of the completion of any five miles of said road or any of its branches, signed by the engineer and president of the said company, it shall be the duty of the trustees of the internal improvement fund to require the state engineer or some other competent person to examine and inspect each five miles of road so completed; and on such person's or the state engineer's report that the five miles are completed as certified, it shall be the duty of the trustees of the internal improvement fund to issue deeds to the said corporation, as required in the foregoing section: Provided, that the said corporation, its successors and assigns, shall have the privilege of requiring and having from the trustees of the internal improvement fund a certificate authorizing and entitling it to locate the lands which it may at any time have earned and become entitled to as aforesaid; and whenever and as often as the said corporation shall file with the trustees of the internal improvement fund a plat and survey of the lands located by it in pursuance of a certificate given it by the trustees as herein provided, the said trustees shall set apart and upon demand excuse unto said corporation, its successors or assigns, a deed conveying unto it the lands described in said plat and survey, from the swamp and overflowed lands granted to the state of Florida by the act of Congress of September 28, 1850: Provided, that nothing in this act contained shall make the state of Florida liable by reason of any deficiency there may exist in the public lands belonging to the state under and by virtue of the act of Congress of September 28, 1850.'

'Sec. 18. That whereas the individuals herein incorporated have already incorporated themselves under the name of the Atlantic, Suwannee River & Gulf Railroad Company, by virtue of letters patent from the Governor of the state, and have begun the construction of the line of railroad contemplated by this act, therefore, be it enacted, that the corporate franchise of the last above named corporation shall be merged into the franchise of the Atlantic, Suwannee River & Gulf Railway Company, hereby incorporated, and the corporation so formed by such merger shall exist under and by virtue of the corporate franchise hereby granted with all the privileges granted by this act; and all the property, rights and privileges of the said Atlantic, Suwannee River & Gulf Railroad Company are hereby vested in the Atlantic, Suwannee River & Gulf Railway Company; and, whereas, a portion of the said line of railroad herein provided for has already been built which will hereafter be conveyed and transferred into the said Atlantic, Suwannee River & Gulf Railway Company, therefore, be it further enacted, that for each mile and part of a mile of railroad heretofore built and hereafter conveyed to the said Atlantic, Suwannee River & Gulf Railway Company, the corporation hereby enacted, is shall receive its full quota of ten thousand acres of land from the swamp and overflowed lands granted to the state of Florida by the act of Congress passed September 28, 1850; which lands shall be conveyed to the company in the manner and under the conditions specified in section 9 and 10 of this act.'

The complainant exercised its option under section 10, and took 'floats,' which it asserts might be located upon any unappropriated swamp and overflowed lands within the domain of the state.

Is the title to the act sufficiently broad to embrace such a grant?

As printed, chapter 4267 bears the title, 'An act to incorporate the Atlantic, Suwannee River & Gulf Railway Company, to grant said corporation certain privileges, and to aid the construction thereof.'

The journals of the two houses of the Legislature disclose, however, that the bill which was voted on by them bore at its passage the title merely, 'A bill to be entitled 'An act to incorporate the Atlantic, Suwannee River & Gulf Railroad Company,” and was designated further as 'House Bill 99.' The bill, after its passage by the House, appears by the Senate Journal to have been amended in that body, and the House Journal shows affirmatively and specifically what that amendment was, and the concurrence by the House in the designated amendment. The bill by its short original title was referred to the joint committee on enrolled bills, and subsequently there appears a report from this committee to the House that it finds correctly enrolled, not House Bill 99, nor a 'bill to be entitled 'An act to incorporate the Atlantic, Suwannee River & Gulf Railway Company,” but 'An act to incorporate the Atlantic, Suwannee River & Gulf Railway Company, to grant said corporation certain privileges and to aid the construction thereof,' which 'act' was signed by the Speaker. The Senate Journal, subsequent to the passage of the House Bill 99 with the short title, is silent therein, unless, except, and until the joint committee report the presentation to the Governor for his signature to the 'act' with the changed and enlarged title, and on the day thereafter the announcement by the President that he was signing the 'act.'

This court is firmly committed to the holding that when the journal speak they control, and, as against such proof, the enrolled bill is not conclusive. We are further committed to the proposition that a material change in the title to a bill as signed by the presiding officers of the Legislature and as signed by the Gevernor is fatal. State ex rel. Attorney the Governor is fatal. State ex rel. Attorney 334, and cases cited.

Under such precedents, the counsel for the appellee were justified in conceding that they were...