This matter is before us on petition of the Florida State Bar Association, which alleges:
"1. That the Florida State Bar Association has a membership of approximately seventeen hundred members admitted to practice law in the State of Florida.
"2. That under the authority of a resolution adopted on April 19, 1940, at the annual meeting of the Florida State Bar Association held at Jacksonville, Florida, a committee was appointed to adapt the Federal Rules of Civil Procedure to Florida practice; that said committee has prepared the new Florida Rules of Civil Procedure in accordance with said instructions. *Page 240
"3. That said Florida Rules of Civil Procedure have been printed in the July issue of the Florida Law Journal; that, in the same Law Journal, a copy of this petition and of a notice of this hearing were also published; that a copy of said Law Journal was mailed by the Florida State Bar Association to every lawyer in Florida who is listed in Martindale-Hubbell Law Directory, so as to give notice to all attorneys of the time and place of the presentation of this petition, and that said Florida Rules of Civil Procedure are made a part of this petition by reference.
"4. That the Federal Rules of Civil Procedure were adopted in federal practice in September, 1938, and that in actual operation, they have been found to promote the prompt and efficient administration of justice; that it is the belief of petitioners that benefits similar to those accomplished by the Federal Rules will be produced in the courts of the State of Florida by the adoption of the new Florida Rules of Civil Procedure herewith submitted to the Court.
"5. That at present there are three different methods of practice and procedure in Florida — common law, chancery, and federal; that the appellate practice under each method is different; that the attorneys of Florida are thus burdened with numerous details and extra work which could be obviated by having one form of practice in the State; that this would result in making it possible for attorneys to give their clients more efficient service, and that the adoption of the proposed rules would doubtless result in fewer appeals to the Supreme Court of Florida, as many of the former technicalities would be abolished.
"6. That, as a result of the delays in court caused by the present procedure in Florida, the courts are being criticized and business men are turning more to other methods of settling their business differences; that it will not only be beneficial to the legal profession to adopt the proposed *Page 241 rules, but it will greatly aid the business men and other citizens of the State of Florida by giving them the possibility of speedier and more efficient service in court."
Two questions are presented for our consideration, stated as follows:
"1. Does the necessity exist for the adaptation of the Federal Rules of Civil Procedure to the practice in State courts of Florida?
"2. In the exercise of its rule-making power, can the Supreme Court of Florida promulgate valid rules of practice inconsistent with rules enacted by the Legislature?"
In addition to these questions, the Court had presented three (3) questions, upon which it has requested brief and argument, which had been submitted. Those questions are as follows:
"1. The Constitution of Florida recognizes the distinction between Common Law and Equity. Has this Court the power in the absence of constitutional authorization to approve and promulgate the Florida Rules of Civil Procedure which propose to abolish that distinction or merge it into a 'civil action'?"
"2. The whole theory of our statutory law in relation to procedure is grounded on a system of common law and equity. Has this Court the power to approve and promulgate the Florida Rules of Civil Procedure, it appearing that they are not confined to the realm of procedure but in effect repeal or modify numerous statutes relating to substantive law?"
"3. Has this Court the power to promulgate rules of procedure for the conduct of other courts in the State judicial system in the absence of statutory or constitutional authorization to do so?"
Perhaps the necessity does not exist for the adoption of *Page 242 the Federal Rules of Civil Procedure to the practice in the State courts of Florida, but certainly the necessity does exist to adopt rules of civil practice and procedure which will eliminate many of the existing technicalities which hinder and delay the administration of justice. The demand of both lawyers and litigants is urgent that the courts do what is necessary to be done to so improve civil practice and procedure as to make the administration of justice more certain and to ascertain the truth and the rights of parties promptly and with less expense than may be accomplished under our present system. It appears to us as being expedient to adopt as far as possible the Federal Rules of Civil procedure, as far as they may be applicable and with such changes as are needful to attain this end, because: (1) These rules were prepared by men of wide experience and great ability, after thorough study and consideration and are found after more than two years of experience to be generally satisfactory to the bench and bar of the Federal Courts. (2) By adopting the Federal Rules we will eliminate conflicts and differences in the matters of civil procedure as practiced in the Federal Courts and as practiced in the State courts of Florida, and thereby eliminate confusion and much doubling of work of the practitioner.
So we may say that necessity for reformation exists and expediency sugests that the wise way to proceed is by the adoption of the Federal Rules of procedure with such changes as may be necessary to make them applicable to the State courts.
It appears to us that question 2 as presented by the committee and question 3 as suggested by the Court may properly be considered together.
At the outset, let us say that if the legislative enactments were adequate to meet the requirements prescribed by Section 4 of the Declaration of Rights, the question here *Page 243 propounded would not be presented to this Court. Section 4 of the Declaration of Rights provides: "All Courts in this State shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay." It is as much a violation of this paragraph of the Constitution to follow rules of procedure which will delay justice as it would be to follow rules of procedure which would deny justice. This Court must take judicial knowledge of facts and conditions which are known to laymen as well as to lawyers, that our present rules and statutes governing civil practice and procedure are antiquated, inadequate, and are conducive to delay in the administration of justice and result in a violation of the constitutional right of the litigant to have justice administered without delay.
We think it cannot be gainsaid that it is the duty of the judiciary to render compliance with this section of the Constitution and that it is within the power of the judiciary to make and promulgate all rules of practice and procedure necessary to the efficient performance of that duty, regardless of what the Legislature may have assumed to do in that regard.
We think it must be conceded that if the rule-making power has by the provisions of the Constitution not been vested exclusively in the Legislature that such power as may be by the Constitution impliedly vested in the Legislature is subject to the inherent power resting in the judiciary in this regard. This must be so unless the provisions of the Constitution are such as to divest the courts of this inherent power, which is not done by the provisions of our Constitution.
It must follow that if inherent rule-making power resting in the courts has not been divested by the Constitution and *Page 244 the Constitution either directly or by implication recognizes such power in the courts, then the Legislature is without power to by statute place a limitation on the judicial branch of the government in this regard.
It must also be recognized that this Court has not heretofore been importuned to exercise its inherent power in this regard so as to make effective the provisions of Section 4 of the Declaration of Rights.
In assuming to exercise the inherent rule-making power we do not cast any aspersions on the Legislature, nor upon its action or lack of action in the past. Under implied authority found in the Constitution, Sections 20 and 21 of Article III, the Legislature has, at the behest of the judiciary, enacted such statutes as may have been apparently desired by the judiciary for its aid in performing its governmental functions.
In Smith v. Guckenheimer Sons, 42. Fla. 1, 27 So. 900, this Court, having referred to Section 1308, Revised Statutes of Florida, now 4682 C. G. L., said:
"It will be observed that as to each power mentioned in this statute the Court is limited to such action as may not beinconsistent with law, except the fourth, and that relates only to prescribing forms, and gives no power whatever to require abstracts as we have done by Rule 20. These powers are much more limited in their scope than those given by the statute referred to in Robinson v. Roberts, 16 Fla. 156, and the Rule there upheld appears to have been a valid one at common law. That case is, therefore, no authority for sustaining the rule in the present case. The statute quoted is essentially a limitation upon the powers of the Court in regard to making rules. The Court has an inherent power of this nature, limited as I have stated, which cannot be divested by the Legislature, and it is also authorized by the common law to make rules. It would be *Page 245 superfluous for the Legislature to grant them the identical power they already possessed. By the legislation quoted the Legislature has merely declared and confirmed the power already possessed, and perhaps extended it so far as other courts are concerned, but with limitations which are unmistakably and clearly expressed, viz,: that the rules framed shall not beinconsistent with law."
The decision in this case was followed in the case of Holder Turpentine Co. v. M. C. Kiser Co., 68 Fla. 312, 67 So. 85, and in the case of Keen v. State, 89 Fla. 113, 103 So. 399. In the latter case it was said:
"The judicial power of the State is vested in the courts. Section 1, Art. V, Const. Fla. But the authority to make laws is in the Legislature of the State. Section 1, Art. III, Const. Fla. And, while the Supreme Court has power to make rules of practice which shall have the force of law, it cannot make rules inconsistent with law. Section 2955, Rev. Gen. Stat. It is true that every court has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, yet, nevertheless, courts are subject to valid, existing laws, and it is generally held that the practice and procedure by which courts shall exercise their jurisdiction, subject to controlling constitutional provisions, if any, may be regulated by statute. 11 Cyc. 739; Zimmerman v. Chicago N.W. Ry., 129 Minn. 4, 151 N.W. 412."
In the latter case of Bryan v. State, 94 Fla. 909, 114 So. 773, it was said:
"Should the Legislature seek to interfere with the inherent power of the Court to regulate the conduct of its own business and by statutory enactment undertake to prescribe rules conceived by it to be better adapted for the orderly, efficient, economical administration of justice, the effect would be a vain attempt to encroach upon the powers, *Page 246 duties and functions of a coördinate and coeval branch of the government; for the power to make its own rules for the conduct of its business is inherent in the Court. It exists independent of statute. It is not absolute but subject to limitations based on reasonableness and conformity to constitutional and statutory provisions of general law. See Smith v. Guckenheimer, 42 Fla. 1, 27 So. 900; Goodwin v. Bickford, 20 Okla. 91, 93 P. 548, 129 Am. St. Rep. 729; Stevenson v. Milwaukee County, 140 Wis. 14, 121 N.W. 654, 17 Ann. Cas. 901."
We think the language above quoted is pertinent to the questions now before us. We may transpose what was said there and say that when the Court finds that the Legislature by statutory enactment has prescribed rules to regulate the conduct of the business of the courts which are conceived by the Court to be inefficient in the economical and prompt administration of justice, the Court may prescribe and substitute its own rules for those so prescribed by the Legislature because the Legislature is without power to encroach upon the powers, duties and functions of a coördinate and coeval branch of the government.
This is true because the power to make its own rules for the conduct of its business is inherent in the Court. It exists independent of statute.
In the Petition of Jacksonville Bar Association, 125 Fla. 175, 169 So. 674, we said:
"Courts have inherent power to prescribe rules of practice and rules to regulate proceedings and to facilitate administration of justice, but all rule-making power of inferior courts is subject to supervisory control of Supreme Court."
In the matter of Petition of State Bar Association, et al.,134 Fla. 851, 186 So. 280, we held:
"Where the Legislature for over 100 years had regulated admissions to the bar and disbarment of attorneys for unprofessional *Page 247 conduct, and the Supreme Court had not exercised its prerogative to regulate such matters but had acquiesced in legislative regulation, Supreme Court would not adopt rules which would repeal legislative Acts and prescribe new requirements for admission to bar and rules relating to disbarment as long as Legislature had not itself withdrawn from such field of regulation."
In this case, without saying so in terms, we differentiated between the powers inherent in the Court to prescribe rules of practice and rules to regulate proceedings and to facilitate administration of justice and the power to promulgate rules contrary to statutory provisions affecting private rights. The right involved in that case was that of a person to be admitted to the bar to practice law in Florida and to continue to exercise the right after having been admitted.
In this connection we may say that it appears to be agreed by all that the courts are without power to change or modify any valid statute enacting substantive law. The effort to adopt and promulgate a rule of court which would deprive a citizen of any of his constitutional or statutory rights to life, liberty or property would be of no avail. But the courts may prescribe reasonable rules by which all such rights may be protected or enforced.
Aside from the provisions of Section 4 of the Declaration of Rights heretofore referred to, the provisions of Article II of the Constitution, reading as follows: "The powers of the government of the State of Florida shall be divided into three departments: Legislative, Executive and Judicial; and no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by this Constitution," by very definite implication recognized in the Court that authority to prescribe rules of practice and rules to regulate proceedings and to facilitate the administration of *Page 248 justice as was declared to be true in the matter of Petition of Jacksonville Bar Association, 125 Fla. 175, 169 So. 674.
As the implied power in the Legislature under the Constitution to make rules for the government of practice and procedure in courts is evident but is not exclusive because such power is inherent in the judiciary and is not divested by the Constitution but is impliedly recognized and preserved by Section 4 of the Declaration of Rights and Article II of the Constitution, legislative enactments in this regard are binding upon the courts until the appropriate tribunal (the Supreme Court) shall have held such legislative provisions to be inadequate to meet the necessities of the judiciary in the performance of the functions of government imposed upon it by the Constitution and shall have, pursuant to such holding, promulgated rules necessary to the prompt, efficient and economical discharge of its governmental functions. This is true because what is implied in the Constitution or statute is as much a part of it as what is expressed. See U.S. v. Babbitt, 66 U.S. 55, 17 L.Ed. 94; Luria v. United States,231 U.S. 9, 58 L.Ed. 101.
In State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200, 150 So. 208, we said:
"It may be said as a general rule that whatever power is conferred upon the courts by the Constitution cannot be enlarged or abridged by the Legislature. Robinson v. Durant,36 Utah 63, 104 P. 764; 15 C. J. 731; In Re: Albori, 95 Cal. A. 42, 272 P. 321. This rule is also stated as follows: 'The Legislature cannot lawfully interfere with the subsistence of the judicial power and discretion vested in the courts by the Constitution nor hamper nor hinder the free and independent exercise thereof.' See Spafford v. Brevard County, 92 Fla. 617,110 So. 451."
The courts have, in many cases, asserted the inherent *Page 249 power in the judiciary to prescribe rules of practice and procedure. See Solimeto v. State, 122 N.E. 578, 188 Ind. 170; Roberts v. Donahoe, 191 Ind. 98, 131 N.E. 33; State v. Roy, 40 New Mexico 397, 60 P.2d 646; In Re: Constitutionality of Section 251.18, 204 Wis. 501, 236 N.W. 7112; Kolkman v. People,89 Cal. 8, 300 P. 575; State ex rel. Foster-Wyman Co. v. Superior Court, 148 Wn. 1, 267 P. 770.
In most of these cases the rules referred to were promulgated by the courts pursuant to so-called legislative enabling Acts with the contestants urging that such legislative Acts attempted to confer legislative power on the judiciary.
In all the cases this theory was held without merit, the opinion being based upon the holding that the rule-making power is inherent in the courts and is a judicial function.
In the Donahoe case, supra, following the Solemito case,supra, the Court held a legislative Act attempting to promulgate a rule of practice contrary to a court rule therefore promulgated to be void and unconstitutional because not within the province of the Legislature. In this connection see "The New Deal for Justice" by Kates, 20 A. B. A. Journal 148; also "Legislature Has No Power in Procedural Field" by John M. Wigmore in Journal of American Judicature Society, issue of December, 1936.
Now, as to whether or not the rule-making power inherent and impliedly preserved by the Constitution in the Supreme Court extends to and includes the power of the Supreme Court to prescribe and promulgate rules of practice and procedure in the inferior courts, the most enlightening and best reasoned opinion which has come to our attention is in the case of People v. Callopy, 358 Ill. 11, 192 N.E. 634. In that opinion the court gives a succinct and concise history of our institutions at the time of adoption of the Constitution *Page 250 and under constitutional provisions in all material respects like our own the court said:
"It follows from what has been hereinbefore set out that the Supreme Court of this State is vested by the Constitution with authority to regulate practice and procedure of inferior courts so far as the question here is involved." And further said:
"We are convinced that viewed from the historical background of the power of courts of last resort and from the constitutional investiture of power, this court had and has power to promulgate Rule 27 of the Rules of this Court and that rule is valid."
In the case of Stepanian v. Asadourian, 283 Ill. App. 495, 1 N.E.2d 753, the Court said:
"The right of the Supreme Court to promulgate rules of procedure binding upon itself and all inferior courts is not debatable."
As to the question as to whether or not, in the absence of constitutional authorization to approve and promulgate the proposed Florida Rules of Civil Procedure, the rules would be invalid because they would abolish the constitutional distinction between law and equity and because such rules would merge both law and equity in the civil actions, we are brought to the conclusion that the rules do not abolish that distinction, but the distinction is recognized and preserved in the rules. The substantive rights of litigants grounded upon an equitable cause of action are not altered, nor are the substantive rights of litigants grounded upon a legal cause of action altered.
Under Section 2 of Article III of the Constitution of the United States it is provided:
"The judicial power shall extend to all cases in law and equity arising under the Constitution, the Laws of the *Page 251 United States and treaties made, or which shall be made, under their authority."
So it is seen that the distinction between law and equity is preserved in the Federal Constitution. This question has been raised in the Federal courts and it has there been held that the distinction is not affected by the Federal Rules of Procedure. See Frazer v. Geise, 1 Fed. Rules, Decision 267; Ballanac v. Plastic-Kraft Novelty Co. (D.C.), 30 F. Supp. 37; Williams v. Collier (D.C.), 32 F. Supp. 321; Grauman v. City Co. of New York, 31 F. Supp. 172.
It appears to us that this question has also been compliedly settled by the Supreme Court of the United States in the matter of Walter Peterson as Receiver of the Inter-State Coal Co., Inc., Petitioner, 123 U.S. 300, 64 L.Ed. 919. There the Court said:
"The command of the 7th Amendment that 'the right of trial by jury shall be preserved' does not require that old forms of practice and procedure be retained. Walker v. New Mexico S. P. R. Co., 165 U.S. 593, 596, 41 L.Ed. 837, 841, 17 Sup. Ct. Rep. 421, 1 Am. Neg. Rep. 768. Compare Twining v. New Jersey,211 U.S. 78, 101, 53 L.Ed. 97, 107, 29 Sup. Ct. 14. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with."
Under the proposed Rules all substantive rights of parties *Page 252 will be preserved and only the court practice and procedure by which those rights are enforced or protected will be changed. Matters cognizable in equity will remain cognizable in equity and matters cognizable in law will so remain.
Our conclusion is that existing conditions demand constructive reform as heretofore indicated in the rules of civil practice and procedure and that the Supreme Court of Florida possesses the inherent power recognized and preserved by implication at least in the Constitution to promulgate rules of practice and procedure for its own governance and for the governance of the inferior courts of this State which are needful to the speedy, economic and certain administration of justice.
CHAPMAN, J., concurs.
TERRELL, C. J., and BROWN, J., dissent.