At the 1933 session of the Legislature Senate Joint Resolution No. 582 was passed by the Senate in the following form (omitting caption):
"BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF FLORIDA:
"That the following amendment to Article V of the Constitution of this State relating to the Judiciary by adding thereto additional Section 45 as hereinafter set forth, be and the same is hereby agreed to and shall be submitted to the qualified voters of the State of Florida for ratification or rejection at the next ensuing general election, that is to say, that an additional section to be designated as Section 45 of Article V of the Constitution of Florida be adopted to read as follows, to-wit:
" 'Section 45.
" '(a) There shall be no more than fifteen judicial circuits of the State of Florida to be appropriately designated, numbered and defined by a suitable law enacted by the Legislature for that purpose in accordance with the amendment; provided that no judicial circuit as defined by law hereunder shall embrace less than fifty thousand inhabitants according to the last preceding State or Federal Census; and provided further, that no judicial circuit existing at the time of the ratification of this amendment shall be *Page 868 affected, altered, or abolished, except in the manner provided in this amendment for carrying the same into execution, nor shall any existing Circuit judge or State Attorney be disturbed in the tenure of his office until the expiration of any commission held by him on the date this amendment is ratified.
" '(b) It shall be the duty of the Legislature at its next regular session after the amendment shall have been ratified to pass suitable laws to carry this amendment in effect, and to make effective the reapportionment and reduction of judicial circuits and Circuit Judges hereby contemplated.
" '(c) There shall be one Circuit Judge to each Judicial Circuit, but additional Circuit Judges for Judicial Circuit may be provided for by law as authorized by Section 43 of amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any one judicial circuit shall not exceed one Circuit Judge for every fifty thousand inhabitants, or major fraction thereof, after this amendment shall have been put into effect.
" '(d) In Circuits having more than one Judge the Legislature may designate the place of residence of any such additional Judge or Judges.
" '(e) The reapportionment of Circuits and Judges thereof hereby provided for shall become effective sixty days after the Act providing for same shall have become a law.' "
See House Journal at page 666, 1933 Session, where message to that effect was received in the House of Representatives.
The House of Representatives disagreed to the proposal of the Senate and passed a counter proposal of its own which (omitting caption) was as follows:
"BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF FLORIDA: *Page 869
"That the following Amendment to Article V of the Constitution of this State relating to the Judiciary, by adding thereto an additional Section 46 as hereinafter set forth, be and the same is hereby agreed to and shall be submitted to the qualified voters of the State of Florida for ratification or rejection at the next ensuing General Election, that is to say, that an additional Section to be designated 'Section 46 of Article V of the Constitution of Florida' be adopted, to read as follows:
"Section 46. (A) There shall be as many Judicial Circuits of the State of Florida as there are, from time to time, Congressional Districts, and the Legislature may provide a Judge in each such Circuit for each fifty thousand population therein and an additional Judge may be provided by the Legislature whenever the population of a Circuit increases to an extent of twenty-five thousand over multiples of fifty thousand. Circuit Judges shall be appointed by the Governor and confirmed by the Senate. The Judges of each Circuit shall elect one of their number to act as Presiding Judge, who shall have the duty and power to assign the various Judges to sit in the several Counties of the Circuit at such times and in such manner as to render the most prompt and efficient judicial service, having regard for the volume of litigation in the several Counties. Such Circuit Courts shall have the same jurisdiction as heretofore granted to Circuit Courts by the Constitution of the State; provided, however, that the Legislature may create an Intermediate Appellate Court to be known as 'The Court of Appeals,' consisting of the Presiding Judges of the several Circuits hereby created, and said Court of Appeals, when so created by the Legislature, shall have and exercise such original or appellate jurisdiction as may be prescribed by law. The Constitutional jurisdiction of the Supreme Court, as provided in Article V of the Constitution, shall not be *Page 870 abrogated, provided, however, that the Supreme Court may, by rule of Court, confer jurisdiction in any case upon the Court of Appeals, and provide a method of obtaining review of causes heard in the Court of Appeals by the Supreme Court, Presiding Judges of Circuit Courts, acting as Justices of the Court of Appeals, shall not be relieved of their duties as Circuit Judges. The Clerk of the Supreme Court shall be Clerk of the Court of Appeals.
"(B) The Governor, by and with the consent of the Senate, may apoint a State Attorney for each fifty thousand population in the Circuit. His duties shall be prescribed by law and he shall hold office for four years; provided, however, that in counties having a population of over fifty thousand only one such State Attorney shall be appointed and the number in the Circuit accordingly reduced. A State Attorney may exercise his functions in more than one county, if so provided by law. Duties and compensation of State Attorneys shall be fixed by the Legislature. Assistant State Attorneys, when necessary, may be authorized by the Legislature and be appointed temporarily by the Governor, but their terms of office shall not extend beyond the next ensuing session of the Legislature. Where one State Attorney is provided hereunder in any one County, he shall combine the duties of State Attorney and County Solicitor, and the latter office shall be considered abolished.
"(C) Provided, however, that no Judicial Circuit existing at the time of the ratification of this amendment shall be affected, altered or abolished, except in the manner provided by this Amendment for carrying the same into execution, nor shall any existing Circuit Judge or State Attorney be disturbed in the tenure of his office until the expiration of the Commission held by him on the date this Amendment is ratified. *Page 871
"(D) It shall be the duty of the Legislature at the next regular or special session after this Amendment shall have been ratified to pass suitable laws to carry the provisions hereof into effect.
"(E) This Section of the Constitution shall prevail, all other provisions of Article V of the Constitution to the contrary notwithstanding."
This counter proposal the Senate refused to accept or agree to. (See page 885, Senate Journal.)
The result was that in accordance with accepted parliamentary practice the whole matter of the disagreeing votes of the House and Senate was referred to a Joint Conference Committee composed of members selected from each of the legislative bodies. It was the task of this Joint Conference Committee, under the terms of its appointment, to attempt to compose the difference between the two Houses of the Legislature. When this effort had been carried through to fruition, it led to an agreement on the part of the Joint Conference Committee, which was incorporated into a report made to each House, recommending simply that the House of Representatives recede from any attempt on its part to insist on consideration of its counter proposal. It is significant that nowhere in this report did the Joint Conference Committee recommend that the House of Representatives concur in the text of Senate Joint Resolution No. 582 as it had been passed by the Senate in the form in which it was reported to the House of Representatives. A motion to recede from an action taken, when it is carried, simply withdraws the particular proposition to which it relates, from further consideration. It is entirely negative in character and carries no implication of affirmative action by reason of its being agreed to. Therefore when the House of Representatives receded from its counter proposal the effect of that action was simply to withdraw *Page 872 the counter proposal, leaving the original matter still to be acted upon by the House of Representatives in such manner as it saw fit. Thus it could either agree to Senate Joint Resolution No. 582 as it had passed the Senate and been reported to the House of Representatives, or it could pass such Senate Joint Resolution in an amended form subject to ratification of the amended form by the Senate.
The Journals of both the House of Representatives and the Senate show, as I read them, that the House did exactly what it had the right to do — that is, pass Senate Joint Resolution No. 582 in an amended form, which amended form is shown spread at length on the Journal of the House of Representatives at page 1153 and which amended form appears followed up in theprecise message that was ordered by the House to be sent to theSenate to inform the Senate what the House had agreed to in thepremises after it had withdrawn or receded from its counterproposal. See Message sent from House to Senate appearing at page 955, Senate Journal.
A comparison of what the House reported to the Senate as its official agreement will show that it is in the exact text of Senate Joint Resolution No. 582 as it appears on page 1153 of the House Journal spread at length thereon together with the yeas and nays on its adoption, as required by Section 1 of Article XVII of the State Constitution. A further comparison will show that what the House took the yeas and nays on, and what it ordered certified to the Senate as its official act, and what was in fact certified to the Senate is not the resolution that is now being published by the Secretary of State as a proposed amendment to the Constitution to be voted on in November, 1934. It differs from it in this respect: the House voted on the resolution absent the following clause that now appears in the published resolution, namely: "(d) In Circuits having more *Page 873 than one Judge the Legislature may designate the place of residence of any such additional Judge or Judges," which clause was added in the Senate before it would pass its own proposal in the first instance. See page 527, Senate Journal, where it is shown that Sub-Section "d" as just quoted was proposed as an amendment to Senate Joint Resolution No. 582 by Senator MacWilliams before it was finally passed on a yea and nay vote and agreed to by the Senate with this provision appearing in its text as spread upon the Journal of the Senate.
Now in order to bring to pass an amendment to the Constitution of this State the exact course of procedure therefor is prescribed by the Constitution. Such procedure is mandatory because when the Constitution prescribes the method by which the Constitution is to be amended, it can be done in no other constitutional way. Crawford v. Gilchrist, 64 Fla. 41, 59 Sou. Rep. 963, Ann. Cas. 1914 B 916. The only exception that has ever been recognized to this rule in Florida is to be found in the case of West v. State, 50 Fla. 154, 39 Sou. Rep. 412, where it was held that after an actual vote upon a proposed amendment, the popular voice is the paramount act. This is in effect but the recognition of the universal rule that once an amendment is actually published and submitted to a vote of the people and by them adopted without any question having been raised prior to the election as to the method by which the amendment gets before the people, the effect of a favorable vote by the people is to cure defects in the form of publication and submission. It was because of the above stated rule laid down in the West case, that Governor Albert W. Gilchrist in the case of Crawford v. Gilchrist, supra, obtained an injunction against the Secretary of State to prevent the latter's publication of an initiative and referendum proposal that was being published, although it had not been regularly *Page 874 submitted, but which if it had been allowed to go to a vote unchallenged, would nevertheless have become a part of the Constitution after being ratified by the vote of the people.Vox populi vox dei is a maxim that has often found favor with the judges when they have been petitioned to set aside the results of elections after they have already been held absent any complaint on the part of those interested, as to the manner or form of their conduct or procedure for ascertainment of the popular will.
Now to consider the exact procedure for proposing amendments to the Constitution of Florida.
Section 1 of Article XVII reads as follows:
"Section 1. Either branch of the Legislature, at a regular session thereof, may propose amendments to this Constitution; and if the same be agreed to by three-fifths of all the members elected to each House, such proposed amendments shall be entered upon their respective Journals with the yeas and nays, and published in one newspaper in each county where a newspaper is published, for three months immediately preceding the next general election of Representatives, at which election the same shall be submitted to the electors of the State, for approval or rejection. If a majority of the electors voting upon the amendments, at such election shall adopt the amendments the same shall become a part of the Constitution. The proposed amendments shall be so submitted as to enable the electors to vote on each amendment separately."
Thus it will be seen that while either the House of Representatives or the Senate may propose an amendment to the Constitution, the right of proposal is subject to the following stated limitations: (1) The proposal must be made at a regular session, not a special session, of the Legislature; (2) it must be agreed to by three-fifths of all the members elected to each House; (3) the proposed amendment *Page 875 must (shall) be entered upon the respective Journals of each House with the yeas and nays, and (4) published in a newspaper for three months prior to being voted on.
It is not difficult to ascertain the reason why a proposed amendment is required to be "entered" on the Journals of each House "with" the yeas and nays thereon. It is to establish definite, certain and incontrovertible evidence of what the respective Houses have "framed" as their proposal to the people and to conclusively evidence what the respective Houses have agreed upon by a three-fifths vote of the members elected to each House.
We often speak of the intent of the "framers" of the Constitution when considering the meaning of a particular provision of our organic law. Thus we recognize that the "framing" of a constitutional provision is just as important as its "proposal." What is to become "framed" as a proposal to the people to become a part of their organic law was never intended to rest upon any less certain and secure means of ascertainment than by reference to what is "entered" upon the Journals of the respective Houses of the Legislature as evidence of what they have agreed to by the constitutional three-fifths vote of each House as recorded in connection with what is "entered" on the Journals.
Now what are the Journals of the Legislature? And what is meant by the requirement of Section 1, Article XVII, of our Constitution as implied in its phrase "proposed amendments shall be entered upon their respective Journals with the yeas and nays," etc? Does this mean that an amendment is to be considered as "entered" on the journals "with" the yeas and nays when the amendment in a particular form claimed to have been agreed to appears on one day's Journal, whereas the supposed yea and nay vote by which it was agreed to appears on a subsequent day's Journal? In this connection it must be remembered *Page 876 that this Court has specifically defined the "Journal" of the Legislature as being the "daily" printed pamphlets which contain the record of the proceedings of each House. Amos v. Moseley, 74 Fla. 555, 77 Rep. 619, L. R. A. 1918C
In the case just cited this Court said:
"The question, however, which we must first determine is, what is the Journal? Is it the bound volume which purports to be a copy of all the Journals of the entire session, or is it the printed and published pamphlet which contains the record of each day's proceedings? The word Journal is derived from the French word jour, which means 'day.' The Century Dictionary defines a journal to be a 'diary or daily record, an account of daily transactions or events'; and says that 'Journal' is a doublet of 'diurnal,' from the Latin diurnalas. The Journals which the Constitution requires each House of the Legislature to keep is, therefore, a daily record."
Therefore, it seems to me that when the provisions of Section 1 of Article XVII require a proposed amendment to the State Constitution to be entered upon the "Journals" with the yeas and nays, it means that the proposed amendment and the yeas and nays taken and recorded respecting it, must appear on the sameday's record of proceedings. I find no authority for ignoring the word "with" as used in the constitutional phrase "shall be entered upon their respective Journals with the yeas and nays." An examination of every legislative Journal from 1887 to 1933 where the Legislature has attempted to pass an amendment to the Constitution will show that the Legislature itself has heretofore consistently adopted and followed this view of the provision by first spreading on the Journal the exact text of the proposed constitutional amendment and then showing *Page 877 the vote on it by yeas and nays recorded in immediate connection with it.
And in this very case, a reference to, page 1153 of the House Journal will show that there is spread on the Journal on that page in connection with that day's proceedings the full text of a proposed amendment that the yeas and nays also appearing on that page were intended to be entered "with" and to relate to. If the text of the proposed amendment appearing on page 1153 was not so entered at that place for a constitutional purpose in order to comply with Section 1 of Article XVII, then it must be held that the yeas and nays as they appear on that page are wholly unconnected with any proposed constitutional amendment spread at any place anywhere in the Journal, or spread at all on that particular legislative day's record. In other words, what the Constitution mandatorily requires was not "entered" on the "Journal" of the legislative day of June 2, 1933, as this Court has construed what is meant by the word "Journal" in Amos v. Moseley, supra. This defect alone would be fatal if the Constitution is to be enforced as to its requirements on this subject.
It has been suggested in argument that no particularform is prescribed for proposing a constitutional amendment and likewise that there is no constitutional requirement for an orderly introduction of a proposed constitutional amendment in the form of a joint resolution followed by three separate readings of such joint resolution as a proposal to amend the Constitution, such as is required of legislative bills proposed to be enacted into laws.
My answer to this suggestion is that for forty-nine years the Legislature has itself construed the Constitution otherwise by acting on proposals to amend the Constitution only when the same has been introduced into the respective Houses in the form of joint resolutions of the Florida *Page 878 Legislature. Section 17 of Article III specifically refers to those legislative measures known as "joint resolutions" and provides that "the vote on final passage of every bill or jointresolution shall be taken by yeas and nays, to be entered on the Journal of each House," etc.
The Legislature, whether it was compelled to do so or not, deliberately adopted in this instance a "joint resolution" as the particular parliamentary vehicle for expressing its proposal to amend the Constitution in the particulars now under consideration in this case. Such proposal being in form of a "joint resolution" as well as in substance a proposed amendment to the Constitution, was required to conform to Section 17 of Article III, as well as to conform with Section 1 of Article XVII, as I see it. Nowhere in the legislative Journal does it appear anywhere or at all that the House of Representatives ever took a yea and nay vote on the final passage of the joint resolution now being published by the Secretary of State as the Legislature's official act. On the contrary, it appears affirmatively that in the House, the vote was taken on a resolution similar in terms but differing in one vital and essential provision from that sent over to the House by the Senate in the first instance, as a comparison of the records of the one voted on with the one certified to the House by the Senate will substantiate.
To illustrate what I mean by this proposition the following is quoted from the Journal of the House of Representatives of June 2, 1933, at pages 1153-1154:
"Your Conference Committee appointed to adjust the differences existing between the Senate and the House on Senate Joint Resolution Number 582 have had the same under consideration and do respectfully recommend as follows:
"That the House of Representatives do recede from its Amendment as follows," etc. *Page 879
"Mr. Scofield moved that the report of the Joint Conference Committee on Senate Joint Resolution No. 582, be adopted.
"Which was agreed to by a three-fifths vote.
"Mr. Scofield moved that the House of Representatives do recede from its Amendment to Senate Joint Resolution No. 582.
"Which was agreed to by a three-fifths vote.
"The question recurred on further consideration of Senate Joint Resolution No. 582, as originally introduced. The Resolution was read in full.
"Senate Joint Resolution No. 582.
"A Joint Resolution proposing an amendment to Article V of the Constitution of Florida relating to the Judiciary by adding thereto an additional Section to be known as Section 45 providing for the reduction of the number of Judicial Circuits of this State and requiring the reapportionment of such Circuits and the Judges thereof.
"BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF FLORIDA:
"That the following amendment to Article V of the Constitution of this State relating to the Judiciary by adding thereto additional Section 45 as hereinafter set forth, be and the same is hereby agreed to and shall be submitted to the qualified voters of the State of Florida for ratification or rejection at the next ensuing general election, that is to say, that an additional Section to be designated as Section 45 of Article V of the Constitution of Florida be adopted to read as follows, to-wit:
" 'Section 45. (a) There shall be no more than fifteen judicial circuits of the State of Florida to be appropriately designated, numbered and defined by a suitable law enacted by the Legislature for that purpose in accordance with the *Page 880 amendment; provided that no judicial circuit as defined by law hereunder shall embrace less than fifty thousand inhabitants according to the last preceding State or Federal census; and provided further, that no judicial circuit existing at the time of the ratification of this amendment shall be affected, altered, or abolished, except in the manner provided in this amendment for carrying the same into execution, nor shall any existing Circuit Judge or State Attorney be disturbed in the tenure of his office until the expiration of any commission held by him on the date this amendment is ratified.
" '(b) It shall be the duty of the Legislature at its next regular session after the amendment shall have been ratified to pass suitable laws to carry this amendment into effect, and to make effective the reapportionment and reduction of judicial circuits and Circuit Judges hereby contemplated.
" '(c) There shall be one Circuit Judge to each Judicial Circuit, but additional Circuit Judges for judicial circuit may be provided for by law as authorized by Section 43 of amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any one judicial circuit shall not exceed one Circuit Judge for every fifty thousand inhabitants, or major fraction thereof, after this amendment shall have been put into effect.
" '(d) The reapportionment of Circuits and Judges thereof hereby provided for shall become effective sixty days after the Act providing for same shall become a law.'
"The question recurred on the final adoption of Senate Joint Resolution No. 582, as originally introduced.
"Upon call of the roll on the adoption of the Resolution the vote was:
"Yeas — Mr. Speaker; Messrs. Albury, Anderson, Andrews, Auvil, Baskin, Bass, Bell, Bishop, Bonifay, Booth, Boyd, Boynton, Brannon, Brown, Burchard, Butler (Bradford), *Page 881 Butler (Charlotte), Butt, Byington, Byrd, Carey, Christie, Crocker, Denison, Dickey, Dickinson, Driver, Dugger, Early, Edney, Endsley, Entzminger, Ezell, Folks, Frost, Gaston, Geiger, Goff, Hancock, Harrell, Hatch, Hendry, Herrin, Holly, Hosford, Hubbell, Ivess, Kanner, Kelly, Kennedy, Kilgore, Knight, Laney, Lanier, Lewis, MacWilliams, Martin, Middleton, Murphree, O'Bryan, Pearce, Price, Rawls, Register, Rehwinkel, Rivers, Roberts, Robineau, Rogers, Sandler, Sapp, Scofield, Simmons, Sims, Smith, Stewart, Stone, Strickland, Teague, Trammell, Untreiner, Victor, Waller, Wand, Ward, Westbrook, Willis, Wood, Worth, Wynn, Zim — 93.
"Nays — None.
"So Senate Joint Resolution No. 582 was adopted, title as stated, by the constitutional three-fifths vote of all members elected to the House of Representatives for the 1933 session Florida Legislature.
"And the same was ordered certified to the Senate."
A cursory comparison of what the House of Representatives voted on as Senate Joint Resolution No. 582 as above quotedfrom the Journal entry itself will show that the resolution as passed by the House is materially variant from that agreed to by the Senate in the first instance and reported to the House by a message received in the House of Representatives on May 22, 1933, appearing spread on the Journal at page 666 (House Journal).
It further appears on page 955 of the Senate Journal that what the Chief Clerk of the House of Representativescertified to the Senate as the action of the House in the matter at hand, was identically the resolution spread on the House Journal at page 1153, not at page 666. Thus we have a clear demonstration from both House and Senate Journals that the resolution now being published by the Secretary of State is not the resolution that the House of *Page 882 Representatives agreed to by a three-fifths vote, but is the resolution spread on the Journal of the House on May 22, 1933, appearing at page 666 — 11 days and 487 pages earlier in the bound volume.
It is not denied that the yeas and nays appearing at page 1153 of the House Journal are the only yeas and nays ever claimed to have been taken in the House of Representatives on the proposition of agreeing to Senate Joint Resolution No. 582 by a three-fifths vote. But it is denied that the full text of the resolution labeled "Senate Joint Resolution No. 582" in the form it appears at page 1153 where the yeas and nays are recorded, is the resolution the House voted on. Or in other words, it is contended that the yea and nay vote appearing on page 1153 of the Journal of June 2, 1933, was a yea and nay vote taken not on the resolution spread in full on the Journal at that page, but is the record of a yea and nay vote taken on the resolution labeled "Senate Joint Resolution No. 582" as it appears spread on the House Journal at page 666 on May 22, 1933.
To explain the admitted discrepancy it is contended that the whole matter should be regarded as a clerical error on the part of the House of Representatives in entering the record of what appears at page 1153. My answer to this is that it might be equally susceptible of demonstration that what appears at page 666 is a clerical error, if we are to resort to outside evidence to prove it and not confine ourselves to the showing of the Journals as the Constitution requires that we shall.
In my view the present case is controlled by our recent decision in the case of Gray v. Childs, 115 Fla. 816, 156 Sou. Rep. 274. That case, like the instant one, involved a proposed constitutional amendment purporting to have been adopted by the 1933 Legislature to abolish the office of Tax Assessor. The Journals of the House and Senate showed *Page 883 that the proposed constitutional amendment as proposed and agreed to by the Senate was not in the language of the same amendment as proposed and agreed to by the House of Representatives. The court below held the proposed amendment invalid and enjoined its publication by the Secretary of State. On appeal we affirmed that decision and said:
"Section 1 of Article XVII of our Constitution provides the method by which the Constitution may be amended. It requires that a proposed amendment shall be entered upon the respective Journals of the House of Representatives and of the Senate with the yeas and nays showing a three-fifths vote in favor of such amendment by each House. The proposed amendment here under consideration nowhere appears upon the Journals of the Senate, and therefore it is unnecessary for us to consider any other questions presented or any authorities cited.
"The amendment of the organic law of the state or nation is not a thing to be lightly undertaken nor to be accomplished in a haphazard manner. It is a serious thing. When an amendment is adopted, it becomes a part of the fundamental law of the land, and it may mean the weal or woe of the future generations of the state wherein it becomes a part of the fundamental law. We cannot say that the strict requirements pertaining to amendments may be waived in favor of a good amendment and invoked as against a bad amendment. If the Constitution may be amended in one respect without the amendment being spread upon the Journals of one of the respective Houses of the Legislature, then it may be amended in any other respect in the same manner. It is not for the courts to determine what is a wise proposed amendment or what is an unwise one. With the wisdom of the policy the courts have nothing *Page 884 to do. But is the duty of the courts, when called upon so to do, to determine whether or not the procedure attempted to be adopted is that which is required by the terms of the organic law.
Finding that the organic law has not been complied with as above pointed out, the decree appealed from should be, and the same is hereby, affirmed on authority of the opinion and judgment in the case of Crawford v. Gilchrist, 64 Fla. 41, 59 Sou. Rep. 963, Ann. Cas. 1914-B, 916."
In that case the proposed amendment that was being published, in the form that it was being published, did not appear to have been voted upon by the Senate. The journals were resorted to in that case to demonstrate that fact. In that case the Attorney General contended, as he does here, that the Constitution on this point is not mandatory, but this Court held otherwise and enjoined the publication.
My view is that Gray v. Childs, supra, controls the decision in this case and requires a reversal of the decree here appealed from. If that case is no longer to be followed in this jurisdiction, then before the present term of this Court ends, we should recall that decision and allow the people to vote on the Tax Assessor amendment as well as the Circuit Judge amendment.
It is beside the point to say that we are merely correcting a clerical error in the Journal by referring back from page 1153 to 666 of the House Journal. It is not lightly to be presumed that the House of Representatives did not intend to do what the Legislative Journal of June 2, 1933, shows it did do.
In Stockton v. Powell, 29 Fla. 1, 10 Sou. Rep. 688, 15 L. R. A. 42, this Court rendered a decision on a matter of legislative procedure similar to that here involved and held that the provision of Section 21 of Article III of the original Constitution *Page 885 of 1885 to the effect that "Evidence that such notice (notice of intention to apply for the passage of local legislation) has been published shall be established in the Legislature before such bill shall be passed" would not be enforced by the Courts but would be left up to the Legislature entirely. The Stockton v. Powell decision, supra, was handed down by this Court in January, 1892, seven years after the Constitution of 1885 was adopted. And from the date of the decision of this Court in Stockton v. Powell, supra, in 1892 to 1929, Section 21 of Article III of the Constitution of the State requiring publication of local laws before they could be passed, was a dead letter insofar as observance by the Legislature was concerned.
Thus, as a result of the decision of this Court in Stockton, v. Powell, supra, for eighteen regular sessions of the Legislature and for perhaps a third of that number of special session, Section 21 of Article III of the Constitution of this state was as effectively nullified in its purpose through tolerated disregard of it in the courts, as if it had been expressly repealed. The long train of evil consequences following that unhappy decision in a case involving the process of law making is attested by the thousands of local bills that were thereafter passed without even a pretense of publication of any notice thereof as required by Section 21 of Article III. And this evil continued during the period of thirty-five years that elapsed after the doctrine of Stockton v. Powell had superseded the express language of the organic law on the subject, and grew to such an extent that the constitution was amended in 1928 in such decisive language that disobedience to the exact constitutional requirement that had always been part of the fundamental law, could no longer be judicially condoned.
My fear in this case is that we are, as a matter of expediency, *Page 886 simply writing another Stockton v. Powell decision on the question of the process required for framing and adopting amendments to the Constitution and are thereby making possible for the future a complete disregard of the constitutional requirement of Section 1 of Article XVII to the effect that a proposed constitutional amendment, as finally framed and agreed to by a three-fifths vote of each House of the Legislature, shall be entered on the Journal of each House and, in addition thereto, shall be entered with the yeas and nays recorded for and against the proposal as so entered.
There is no plausible reason for the judicial invention of excuses for misprisions in the process of lawmaking, since exact compliance with the comparatively simple procedure prescribed in the Constitution for the enactment of statutes is not difficult. There is all the more reason for holding the Legislature to a rigid compliance with the Constitution in the matter of framing and adopting amendments to our organic law, since in proposing amendments to our constitution the Legislature acts under a delegated power, not as a legislature, but as a specially provided for constitutional convention with respect to each proposal, and no matter of such vital import as an amendment to the Constitution should rest on any less definite and certain evidence than that which the Constitution in Section 1 of Article XVII ordains shall be perpetuated as evidence of what the Legislature, acting as a special constitutional convention, has elected to "frame" as a proposed constitutional amendment.
This Court has heretofore refused to follow the informality of procedure for amending the Constitution, that has been approved in the decisions cited in the majority opinion as having been delivered by the courts of California, *Page 887 Georgia, Mississippi, Pennsylvania, Colorado, Iowa and Michigan. It did so in the recent tax assessor abolition amendment case of Gray v. Childs, 156 Sou. Rep. 274, decided by this Court on July 21, 1934. I see no reason for following decisions from other states which are in conflict with our own on the same subject, unless we are prepared to overrule our own decisions and set up for the future a liberality of judicial view not heretofore sanctioned by this Court.
For the reasons stated, I respectfully dissent from the opinion and holding of the Court in this case.
BROWN, J., concurs.
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