The majority opinion rests upon two independent hypotheses, either one of which if true is sufficient to support the conclusion reached. One of those hypotheses definitely repudiates the law as announced in the case of Amos v. Gunn, 84 Fla. 285, 94 South. Rep. 615, and reaffirmed in the case of State, ex rel. Cunningham, v. Davis, 123 Fla. 41, 166 South. Rep. 289. In the other the law as announced in the Gunn case, supra, is definitely adopted and affirmed.
The first hypothesis is that a bill passed by the Legislature may be enrolled and "signed by stated Legislative officers" and "presented to the Governor" after the constitutional legislative session has expired by limitation of time, if such enrolling, signing and presentation to the Governor are done withinreasonable time "beyond the end of the session period."
In the Gunn case, supra, it was held first, that the constitutional provision requiring presiding officers and clerks of each House of the Legislature to sign all bills is mandatory; second, that such signing of bills "must be done in open session of the House over which the officer signing is then presiding and to which the clerk signing is attached"; third, that no bill passed by the Legislature can become a law until it has been presented by the Legislature to the Governor; fourth, that such presentation can be made by the Legislature only while in session.
In the Cunningham case, supra, this Court said, referring to the Gunn case, supra, "To that opinion we still adhere, *Page 625 and so holding, we here and now approve and reaffirm the principles of law that were therein set forth in the opinion of Mr. Justice ELLIS as the views of a majority of this court in the premises." That statement was made after setting forth the principles referred to above in the language which was used in the Gunn case. In the Gunn case Mr. Justice WHITFIELD and Mr. Justice WEST were of the opinion that the "Constitution does not require duly passed bills to be signed by the legislative officers in open session or before final adjournment, and does not make such signing in open session a prerequisite to the effectiveness of the Act and does not require such bills to be presented to the Governor before adjournment" (See Gunn case, 84 Fla. text 382). Mr. Chief Justice BROWN, Mr. Justice TAYLOR and the writer of this opinion agreed that the bills duly passed by the Legislature were required by the Constitution to be signed by the proper officers of the legislative session in open session and presented to the Governor only while in session.
The Cunningham case restated and reaffirmed that doctrine.
I believe that the reason advanced in support of those views has never been answered and indeed cannot be where all provisions of the Constitution as to lawmaking power are considered.
The term "law-making discretion" as used in the majority opinion has no application whatsoever under our system of government insofar as the term is sought to be applied to themodus operandi in exercising legislative power. The law-making power is absolutely controlled by the express words of the Constitution. In the act of "making" a law, in the physical sense of formulating the proposition and preparing it for presentation to the Governor *Page 626 after it has been voted on and adopted or passed by the Legislature, there is no discretion whatsoever in the Legislature because the Constitution prescribes how that shall be done. Such was the holding in the cases of Amos v. Gunn, supra, and State,ex rel. Cunningham, v. Davis, supra.
If the term "law-making discretion" applies to the wisdom or policy of the Legislature in enacting the measure as one for the welfare of the State in the exercise of legislative power, the term has no application whatsover as the policy, wisdom or reasonableness of the Act is in nowise involved in this litigation, therefore to use the term in that sense in this case can only produce confusion of thought, distraction, embarrassment in the mental processes.
The term "discretion" as applied to legislative activities is appropriate only when legislative power is constitutionally exercised for the public welfare. As to the mental activity of the Legislature in formulating and enacting a measure, the term "discretion" has been applied. What is good and wise is for legislative judgment. In that matter only has this Court spoken of legislative discretion. See Davis v. Florida Power Co.,64 Fla. 246, 60 South. Rep. 759, Ann. Cas. 1914 B. 965; Everglades Sugar Land Co. v. Bryan, 81 Fla. 75, 87 South. Rep. 68; Co. Com. Hillsborough Co. v. Savage, 63 Fla. 337, 58 South. Rep. 835.
The term "law-making discretion" has no place in the terminology of law-making activities as the same relate to the ministerial or mechanical processes by which the legislative will may be expressed in duly enacted statutes. To use the term is to introduce a misleading and confusing thought relating to legislative power in contravention of the express letter of the Constitution. It is to exact legislative power in violation of the "organic" law, to subordinate the Constitution to the legislative convenience, to *Page 627 paralyze the Constitution in its inhibitions against disorderly, capricious or desultory law-making activities by eliminating well chosen words directing how and in what manner the enormous power of enacting laws may be exercised by "legislative authority," it amounts to judicial amendment of the Constitution, to setting at naught the will of the people, as expressed in that document called their "organic law."
The term "absolute" duties as used in the majority opinion is likewise misused as intending to convey the idea that "legislative officers" are required to authenticate measures voted upon affirmatively by the Legislature. There is no such term as "legislative officers" used in the Constitution. The Speaker of the House and the Clerk, the President of the Senate and Secretary are merely parliamentary agents of the numerous members of the Legislature, each and every one of whom is a "legislative officer" in the sense that their duties relate to the enactment of laws. See State v. Kelly, 103 Mo. App. 711, 77 So. W. Rep. 996; O'Grady v. Polk, 116 N.Y. Supp. 290, 132 App. Div. 47; Braithwaite v. Cameron, 3 Okla. 630, 38 Pac. Rep. 1084.
The President of the Senate and Speaker of the House are merely "presiding officers" of the deliberative body which at each regular session of the two Houses are required to choose from among its own members. Sec. 6, Art. III, Const. 1885.
The designation by the Constitution of the President of the Senate and in case of his death or inability to act, the Speaker of the House as persons upon whom in a given situation the powers and duties of Governor shall devolve, Sec. 19, Art. IV, Const., confers no official powers upon them as "legislative officers" in addition to their powers as members of the Legislature. There are merely two members *Page 628 of the Legislature upon whom the powers of Governor shall devolve in certain circumstances. No such provision exists as to the Secretary of the Senate or Clerk of the House of Representatives, yet their signatures are as essential to the bill as passed as the signature of the presiding officers. Sec. 17, Art. III, Const. The secretarial employees of the two Houses cannot be said to be "legislative officers." They are merely parliamentary agents or clerks of the Legislature, who perform their duties while the session of the Legislature, their principal, is in existence. Their duties as such agents cease when the session ends. To hold that they have any official capacity as "legislative officers" is to ignore the meaning of words and create a governmental functionary from the substance of which sleeping visions are made; certainly not from any material existing in the Constitution.
The use of those terms "law-making discretion" and absolute duties" introduces into the concept of legislative power two elements which, as applied to the method of preparing a proposition or bill to be considered and voted upon and after its passage for authentication and submission to the Governor, have no place in the constitutional power of bringing a proposition submitted to the Legislature into fruition as a lawfully enacted statute.
No discretion exists in the manner prescribed by the Constitution as to how a bill shall be read; none exists as to how the final vote shall be taken. Neither does any discretion exist as to how and by whom and when the bill as passed shall be signed and presented to the Governor. Those are duties about which there can be no discretion if the Constitution is to be observed. The signing of a bill by certain agents of the deliberative body is as certainly and *Page 629 definitely required as any other legislative duty imposed by the Constitution.
The majority opinion seems to concede that bills "duly passed," that is to say within the period of sixty day session, must be presented by the presiding officers of the two Houses and the Secretary and Clerk thereof to the Governor "within the reasonable limitations of time and procedure that are necessary to effectuate the intent of the organic command that all bills passed by the Legislature" shall be presented to the Governor.
What are the "reasonable limitations of time and procedure"? One looks in vain to the Constitution for any standard by which the time or the procedure may be determined to be reasonable if the bills so duly passed may be presented after the expiration of the constitutional limitations of time and procedure in which it may be done. So the conclusion is forced upon the majority that the court must determine from evidence outside the Legislative Journals just what "time and procedure" are necessary in every case when the question is presented. There is no requirement in constitutional provisions that a bill "duly passed" shall be immediately signed by the presiding officers and clerks and presented to the Governor for his approval or disapproval. May the presiding officers therefore postpone the time for signing them and the observance of such other "procedure," which the opinion vaguely mentions, until after the expiration of the sixty day period during which the Legislature may be constitutionally in regular session and thus in the circumstances defer the observance of such procedure and the signing and presentation of the bills so passed for ten days or more, and thus set aside another constitutional requirement that the Governor shall have five days after presentation to him in which to return it, if he *Page 630 desires, with his objections to the House in which it originated?
Will another provision thus be set aside which allows the Governor ten days after adjournment of the Legislature to veto a bill passed, otherwise it shall be a law? Section 28, Art. III, Const., 1885.
I am of the opinion that the first hypothesis upon which the majority opinion rests is unsound and cannot be logically sustained under the Constitution.
The second hypothesis on which the opinion rests is that the allegations of the alternative writ are "legally insufficient as against the Executive record of the approval of the bill by the Governor on May 31st, 1935," to show that the bill was not signed by "legislative officers and was not presented to the Governor until after twelve o'clock midnight of May 31st, 1935."
It is difficult to perceive why that point should be mentioned at all in view of the conclusion at which the majority had already arrived; that the signing of the bill and its presentation to the Governor was not necessary to be done within the constitutional period of sixty days during which the Legislature could be legally in session but that such signing and presentation could be legally done within a reasonable time thereafter.
The allegations of the writ are sufficient to definitely and clearly present the point. It definitely alleges that the bill, Chapter 17085, Laws 1935, was not engrossed, enrolled, signed, presented and approved on May 31, 1936, but on the contrary that it was not done before twelve o'clock midnight on May 31, 1935, or at any time prior thereto. Surely if it was not done prior thereto and was done at all it must have been done after that date. *Page 631
This mandamus proceeding was begun to compel Davis as Secretary of the Senate and Starry as Clerk of the House to correct the Journal entries of May 31, 1935, so as to speak the truth in conformity to the duty with which they were charged specifically by concurrent resolution. The motion to quash the writ admitted its allegations well pleaded.
In the case of State, ex rel Landis, v. Thompson, 121 Fla. 61, 164 South. Rep. 192, this Court held that the court may inquire into the question on direct attack. The court also held that recitals of legislative action which did not occur before the legislative session became functus officio (false entries) may be expunged; that where the Legislature had exceeded its"jurisdiction as Legislature" by continuing in session beyond its"allotted constitutional number of 60 days" the conclusive legal presumption that ordinarily attaches to legislative records does not attach, Const., Art. III, Sec 2; that the court has authority when private legal rights are shown to be prejudiced by unauthorized acts of "legislative officials" to judicially coerce clerical officers of the Legislature to stay within bounds of delegated authority in making up what purports to be legislative records. State v. Thompson, supra.
The pleadings in this case having established the fact that certain recitals of legislative action in what purported to be the legislative Journal of May 31, 1935, did not occur before the legislative session became functus officio and that such entries were false, this Court has or has not the authority to coerce the legislative clerks to make the corrections necessary to a truthful recital of the transactions.
The Thompson case, supra, held that the Court has such authority, and in the Cunningham case, supra, this Court held, as does the majority opinion in this case, that the so-called "legislative officers," meaning thereby the presiding *Page 632 officers of the two Houses and their Clerks, have not only the power but it is their duty to remain at the capital after the sixty day regular session of the Legislature has expired by constitutional limitation of time to complete their "absolute duties," meaning thereby the enrollment, signing and presentation of the "duly passed" bills to the Governor. If that is true then such "legislative officers," the clerks, have not only the authority but it is their duty to make correct recital of the transactions occurring after the Legislative session has becomefunctus officio by expiration of the sixty day limit. Then, if they have such authority, the entries become, when correctly made and not falsely made, a legislative record. So it follows that the case of Amos v. Gunn, heretofore cited to another point, has no bearing whatsoever upon this point.
I think the case of Amos v. Gunn, supra, is authority for both propositions of law, viz.: first, that a bill duly passed by the Legislature must be signed by the proper officers of the Legislature in open session and by the Legislature through its authentic agencies during the session presented to the Governor. That point was precisely determined; second, that a legislative and executive public record is made in due course of official action without fraud or deception. Such record may not be successfully attacked in the absence of another public record of equal dignity contrary thereto. Believing such to be the law of the land, I am necessarily of the opinion that the motion to quash the alternative writ should be overruled.
BROWN, J., concurs. *Page 633