The Florida State Bar Association is to be commended for its active interest in this important matter of improving and simplifying court procedure in this State, so as to make possible the speedier adjudication of litigated cases, but I agree with Mr. Chief Justice TERRELL and Mr. Presiding Justice WHITFIELD that before this Court can consider or adopt new rules of procedure for the trial courts of this State, the effect of which would be to repeal or modify several hundred statutes heretofore adopted by the Legislature of Florida and recognized as valid and constitutional by this Court in a long line of decisions, it would first be necessary to secure the passage by the Legislature of an Act in the nature of an enabling Act. The State Bar Association has itself recognized the power and authority of the Legislature under our Constitution to enact statutes governing practice and procedure in our courts, by successfully applying to and securing the passage by the Legislature of the excellent Chancery Practice Act of 1931, the comprehensive Probate Act of 1933 and the Criminal Procedure Act of 1939, both of which latter Acts deal with both procedural and substantive law, and some of the distinguished attorneys and members of the State Bar Association who took part in getting this remedial legislation drafted and adopted by the Legislature have led briefs opposing the granting of this petition. *Page 234
In England, during the past century, the bench and bar were ultra conservative and were reluctant to make any important changes in the existing system, and it was not until Parliament became aroused and took legislative action in the premises that any thorough-going reforms in judicial procedure were enacted and put into effect. Without expressing any opinion as to the wisdom of putting into effect in this State of the new Federal Rules of Civil Procedure, in whole or in part, or with or without the modifications suggested by the Florida Bar Association in this amended petition now before us, we might appropriately observe that it is highly to the credit of the lawyers of Florida that for more than a decade, without waiting for laymen to take the lead, they have, in the interest of the general public, through their State organization, been energetically seeking to improve our judicial procedure, so as to make it more responsive to the needs of the present day.
Section 1, Article III, of the Federal Constitution provides that, "The judicial power of the United States shall be vested in one Supreme Court, and in such other inferior courts as the Congress may from time to time ordain and establish."
This is quite similar to the language of Section 1, Article V, of our Florida Constitution, which vests the judicial power of the State not only in the Supreme Court, but also in the circuit courts and other trial courts of the State.
In a recent letter from Honorable Homer Cummings, former United States Attorney General, to Honorable Herbert S. Phillips, United States Attorney, of Tampa, congratulating the latter upon his speech at Sarasota, urging the adoption by this Court of the Federal Rules of Civil Procedure, which letter was published in the November, 1940, issue of the Florida Law journal, Mr. Cummings, among other things, said: *Page 235
"The question that you raise is an interesting one. The reason why the Supreme Court of the United States could not adopt and promulgate the the Rules without legislative authorization is that it was expressly barred from doing so by a previous Act of Congress, the so-called Conformity Act of June 1, 1872 (U.S. Code, Title 28, Sec. 724), which required the Federal Courts to conform to State procedure in respect to actions at law. It was necessary to secure a repeal of this positive limitation. For that reason, the Act of 1934 was required to enable the Supreme Court to regulate civil procedure by rule. "In the absence of any legislation on the subject the courts would seem to have inherent authority to regulate their own procedure. Consequently, if there is no Florida Statute directing what form of pleading and practice the courts should follow, the judicial branch of the Government would appear to have authority to regulate the matter by rule or in any other manner that it sees fit." Thus, in spite of the language of Section 1, Article III, of the National Constitution, the highest court in the land did not see fit to adopt these new Federal Rules of Civil Procedure until the Congress had passed an enabling statute, repealing the former Congressional Act which required the Federal Courts to conform to State procedure in actions at law, the constitutional validity of which former statute the Supreme Court of the United States had long recognized. How much more should this Court refrain from taking any action which would attempt to repeal any of the numerous procedural statutes enacted by the Legislature under the power vested in the Legislature by Sections 20 and 21 of Article III of our Florida Constitution, the constitutional validity of which we have long recognized. This Court, while fearless in the exercise of its own judicial power, and in defending it from invasion by either of the other two grand divisions of governmental power, has always *Page 236 been careful not to encroach upon the legislative domain. Cotton v. Leon County, 6 Fla. 613.
No matter how desirable it might be from a practical standpoint for this Court to be vested with the exclusive power of regulating the practice and procedure in our trial courts, the fact remains that under our Constitution the Legislature can exercise that power, and this Court has never seen fit to promulgate rules which conflicted with valid existing statutes, nor should we do so without the passage of an enabling Act by the Legislature.
The question here presented is whether or not this Supreme Court has power to promulgate and put into effect rules of practice and procedure for the trial courts of this State which are inconsistent with existing statutes.
It is therefore not necessary for us to discuss the highly controversial subject of the origin, nature and extent of the inherent rule-making power of the courts, which has been so much discussed in the legal magazines for the past ten years. Suffice it to say that not only the Supreme Court, but all trial courts of general jurisdiction, are vested with rule-making powers, so long as this power is not exercised as to conflict with the Constitution or with valid legislative Acts regulating practice and procedure. This ride-making power of the courts has been recognized ever since the early days of the English common law, but Tidd's Practice, the ninth edition of which was published in 1828, shows that the practice and procedure in the courts of England had long been a mixture of Acts of Parliament and court-made rules. Therefore it was no innovation when, in the Florida Constitution of 1868, it was provided, in Sections 17 and 18 of Article IV, in substance that all legislative Acts regulating the practice in courts of justice should be, not special or local, but general and of uniform operation throughout the State. Similar provisions appear *Page 237 in Sections 20 and 21, Article III, of the Constitution of 1885. This Court has always recognized the full force and effect of these Constitutional provisions. And numerous statutes prescribing and regulating court procedure have been adopted by the legislature from time to time under the power thus vested.
Section 4682 C. G. L. of 1927, derived from an Act of 1868 which became Section 1308 of the Revised Statutes of 1892, provides, among other things, that the Supreme Court shall have power "To make, amend, annul or modify rules of practice or pleadings of the Supreme Court or any other court as it may see fit, not inconsistent with law." And it was further provided that the rules so adopted "shall have the force of law until otherwise provided by the Legislature."
As shown by the Florida cases cited in the opinions already filed in this case by my associates, this Court has frequently followed and upheld the validity of this statute, and has accepted the principle that the rules promulgated by it shall not be inconsistent with law.
See also in this conection State ex rel. Ross v. Call,39 Fla. 504, 22 So. 748; Sydney v. Auburndale Construction Corp.,96 Fla. 688, 119 So. 128; Ruff v. S. F. Ry. Co., 67 Fla. 224, 64 So. 782; State ex rel. Fisher v. Rowe, 110 Fla. 141,148 So. 588; Alaska Packers Association v. Pillsbury, 301 U.S. 174,57 S.C. 682, 81 L.Ed. 988, and Bull v. Adams (C. C. A.), 17 Fed. 2d 906, opinion by Judge BRYAN. The general subject is reviewed in 14 American Jurisprudence 355 to 372, citing numerous authorities, and on pages 357-358 the following appears:
"The power of courts to make such rules as they may deem necessary is subject to the limitation that such rules must not contravene a statute or the organic law. As against conflicting statutory provisions such rules are *Page 238 without force. They must be subordinate to the law, and in case of conflict the law will prevail. This is, of course, fundamentally true when the conflict is with the organic law or with a substantial right at common law or under a statute, and it is ordinarily held to be true when the conflict is with a statute regulating procedure. This limitation is generally embodied, when the rule-making power is exercised under statutory authority, in the statute conferring such authority."
Counsel for the petitioner, The Florida Bar Association, and members of the bar opposing the granting of the petition, have filed some very able treatises on the subject here under consideration which have appeared in the law magazines, among them one by Professor John H. Wigmore, in the December, 1936, issue of the Journal of the American Jurisprudence Society; another by Mr. Frank W. Grinnell, in the August, 1940, issue of the same Journal, and another by Mr. Harry Hibschman in the November, 1937, issue of the U.S. Law Review, which I have read with interest.
One of the strongest arguments made in behalf of the petitioner is based on the independence of each of the three grand coördinate departments of government. Great stress is laid upon Article II of our Constitution, which reads:
"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."
But I would call attention to the last clause of that Article — "except in cases expressly provided for by this Constitution." I have already called attention to Sections 20 and 21 of Article III of this same Constitution, which to my mind clearly vests the Legislature with power to pass *Page 239 laws regulating practice and procedure in the courts of the State. It may well be that this results in both the courts and the Legislature having concurrent authority in this field, but, as already pointed out, this Court has construed said constitutional provisions to mean that court-made rules of practice must not be inconsistent with legislative statutes, thus avoiding any unseemly clashes of authority between the judicial and legislative branches.
After a careful consideration of the authorities, especially the decisions of our own Supreme Court, as well as the able briefs of counsel both for and against the granting of the petition, I see no good reason for departing from the long established and well settled doctrine that under our Constitution this Court has no power to promulgate rules of practice to govern the trial of cases in our circuit courts and other trial courts which would be in conflict with valid legislative statutes regulating the same subject. No good reason is shown why this Court should now hold that ithas the power to do what it has so often previously held, in clear language, that it does not have the power to do.
WHITFIELD, P. J., and THOMAS, J., concur.