(OAssmUng) : I am informed by my associates that they cannot concur in the opinion *551which I have prepared in this case and'that four of them have reached the opposite conclusion. I have given the opinions prepared by Mr. Justice Taylor, Mr. Justice Hocker and Mr. Justice Parki-iill nry most careful consideration and have striven to reach a like conclusion, but find myself unable to do so. This being true, in view of the importance of the questions involved, I have thought that it might be well to submit my views. I am still more inclined to this course by reason of the fact that, while a majority of the members of the court have reached the same conclusion, they have done so by different routes and differ widely among themselves in the reasoning used. I shall not undertake to analyze the opinions referred to above or to examine and criticise the authorities cited therein, but shall content myself with submitting the opinion originally prepared by me, with only a few minor changes therein.
The defendant in. error has made a motion to strike the bill of exceptions from the transcript of the record upon the following grounds:
“1st. Because the bill of exceptions was signed in vacation, without an order made within the term of the court granting time for and authorizing the signing and settling of the bill of exception after the expiration of the term of court.
2nd. Because the bill of exceptions was not lawfnlly signed and settled by the circuit judge, in accordance with the statutes and rules of practice in such cases.
3rd. Because Honorable B. H. Pdlmer, judge of the third judicial circuit of Florida, was not authorized by the statute to hear and determine, or to make any order ruling upon the motion for a new trial in said cause, out *552of and beyond the territorial limits of the eighth judicial circuit of the state of Florida.
. 4th. The order made by Honcjrab-le Ib H. Palmer, judge of the third judicial circuit, on December 15th, 1906, out of the eighth circuit, and within the third circuit-a'nd after the expiration of his term of transfer, authorizing the signing and settling of the bill of exceptions, was invalid and without authority of law.
5th. The signing and settling' of the bill of exceptions on the 26th day of January, 1907, by Honorable B. H. Palmer, judge of the circuit court of the third judicial circuit of Florida, was unauthorized and invalid, and said bill of exceptions, therefore, has no verity of validity, and is not properly a record of this cause.”
It is undoubtedly true, as contended by defendant in error, that prior to the enactment of Chapter 5403, Laws of '1905, motions for new trials were required to be made in term time and within four days after the verdict sháll have been rendered, in accordance with the provisions of Section 1180 of the Revised Statutes of 1892, Section 1608 of the General Statutes of 1906, which is as follows: “Every motion for a new tidal shall be made by filing the motion,and the reasons therefor in writing in the court, or by placing the motion and the reasons therefor on the motion docket, within four days after the verdict shall have been rendered, and during the same term; and such motions standing over from one term to another shall operate as a supersedeas only when so ordered by the court. And the entry of such motion shall not prevent the entry of judgment on the verdict.”
This statute was originally enacted in 1828, and has been construed by this court. See Dupuis v. Thompson, 16 Fla. 69; William H. T. v. State ex rel. M. C., 18 Fla. *553883; Palatka & I. R. R. R. Co. v. State, 23 Fla. 546, 3 South. Rep. 158.
Chapter 5403, Laws of 1905, is as follows:
‘‘AN ACT Relating to Motions for New Trials in Civil Cases.
Be it Enacted by the- Legislature of the State of Florida.
Section 1. Motions for new trials in civil cases shall be made within four day* after the rendition of the verdict and during the same term, but the judge upon cause shown may, within such four days and during the same term, by order, extend the time for the making and presentation of such motions, not to exceed fifteen days from the rendition of the verdict. In all cases of extension of the time for making such motions, a copy of the motion to be presented to the judge shall be served on the opposite party, or his attorney, with three days’ notice of the time and place that the same will be presented and heard.
It shall not be necessary to incorporate in any motion for a new trial any matter in pais previously excepted to, for the purpose of having the same reviewed by an appellate court.
Sec. 2. The judge shall have the power to hear and determine any motion for new trial in vacation and any such adjudication thereof in vacation shall be entered in the minutes of the court and shall have the like force and effect as if made during term time. •
Sec. 3. The provisions of this act shall not apply to criminal causes.
Sec. 4. All laws or parts of law's in conflict with the provisions of this act are hereby repealed, and this 'act shall take effect immediately upon its’passage and approval.
Became a law without the approval of the governor.”
*554It is contended by defendant in error that this chapter never became effectual as a law for the reason that sectiou 4 thereof provides that it “shall take effect immediately upon its passage and approval,” and that as it never was approved it never became operative. Great stress is laid upon State ex rel. Boyd v. Deal, 24 Fla. 293, 4 South. Rep. 899, S. C. 12 Amer. St. Rep. 204, holding that “the governor acts as a part of the law making power of the state in approving a bill passed by the legislature. The function is not of an executive but of a legislative character.” I fully approve of what was. said in the cited case, but fail lo see its applicability to the instant case.
Section 28 of Article 3 of the Constitution of 1885 expressly provides that “if any bill shall not be returned within five days after it shall have been presented to the governor (Sunday excepted) the same shall be a law, in like manner as if he had signed it.” This language 'is plain and clear and being a part of the constitution ie mandatory and binding. As is said in 1 Lewis’ Sutherland Statutory Construction, Section 172, “When a bill becomes a law by the non-action of the executive, under constitutional regulations, the non-action of the executive is a quasi approval, not complete until the lapse of the time prescribed for his affirmative action under the given conditions.”
I am of the opinion that this contention of the defendant in error must fail and that Chapter 5403, Laws of 1905, did become effective as a law and is now in force.
Turning to the record, I find that the Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, presided and acted ás judge of the eighth judicial circuit of Florida under and by virtue of two separate orders, which are as follows:
*555“State op Florida,
Executive Department,
Tallahassee, Fla., Oct. 22nd, 1906.
WHEREAS, It has been officially made known to me that the Honorable Bascom H. Palmer, judge of the third judicial circuit of Florida, is disqualified to sit in judgmen on certain causes pending in the circuit court in and for the county of Suwannee, state of Florida, which causes are for trial at the fall term A. D. 1906, of the said court, to be held in and for Suwannee county, Florida;
NOW, THEREFORE, Acting under the authority vested in the governor of the state of Florida, by the constitution and laws of Florida, I do hereby order that the Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, and Hon. James T. Wills, judge of the eighth judicial circuit of Florida, do exchange circuits for the period of two weeks, beginning from and including Monday, the 12th day of November, A. D. 1906, and ending Saturday, November 24th, 1906. The Hon. Bascom H. Palmer to preside and act as the judge of the eighth judicial circuit for the said period of time, and the Hon. James T. Wills to preside and act as judge of the third judicial circuit for the said period of time.
In Testimony Whereof, I have hereunto set my hand and caused the great seal of the state to be affixed at Tallahassee, the capital, this 22nd day of Octboer, A. D. 1906.
(SEAL) N. B. BROWARD,
Governor of Florida.
By the Governor: Attest:
(SEAL) H. CLAY CRAWFORD,
Secretary of the State of Florida.”
*556“State or F'lorida.
Executive Department,
Tallahassee, Fla., Oct. 27th, 1906.
WHEREAS, It is officially made known to me that there exists a necessity for a change of circuits between Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, and Hon. James T. Wills, judgo of the eighth judicial circuit of Florida, for the two weeks commencing Monday, November 26th, 1906;
NOW, THEREFORE, Acting under the authority vested •in the governor of the state of Florida, by the constitution and laws of said state,
I do hereby order the Hon. Bascom H. Palmer, judge of the third judicial circuit of Florida, and the EBon. James T. Wills, judge of the eighth judicial circuit of Florida, to exchange circuits for the period of two weeks, beginning from and including Monday the 26th day of November, 1906, the Hon. Bascom H. Palmer to preside and act as judge of the eighth judicial circuit of Florida, for the said period of time, and the Hon. James T. Wills to preside and act as judge of the third judicial circuit for the said period of time.
In Testimony Whereof, I have hereunto set my hand and caused the great seal of the state to be affixed at Tallahassee, the capital, this 27th day of October, A. D. 1906.
(Signed) N. B. BROWARD,
(Seal) Governor of Florida.
By the Governor: Attest:
(Signed) H. CLAY CRAWFORD,
“Secretarry of the State of Florida.”
These orders were made under Section 8 of Article V *557of the constitution of 1885. While presiding and acting as judge of the eighth judicial circuit, under and by virtue of such last order, Judge Palmer presided at the trial of the instant case in the circuit court for Alachua county and on the first day of December, 1906, made the following-order therein: “The jury in the above cause having rendered their verdict in favor of the plaintiff on this day, and the said defendant through its attorneys having thereupon in open court given notice of its intention to make a motion for a new trial, and it appearing that the testimony in said cause is voluminous, and that the same was taken down by a stenographer who ha’s not yet transcribed her notes, and that the same cannot well be transcribed and considered within the time that this court may remain in session at the present term, and that the hearing of said motion is the only business of the court remaining undisposed of at the present term, it is thereupon ordered under the provisions of Chapter 5403 Laws of Florida, that the time for the making and presentation of said motion be and the same is hereby extended to and so as to include the 15th day of December, A. D. 1906 — this order being necessary by reason of the facts above stated, and for the further reason that the court will adjourn for the term on this date.
Done and ordered in open court on this 1st day of December, A. D. 1906.”
1 am clear that, under the provisions of section 1 of chapter 5403, Judge Palmer had the power and authority to make such order. I am equally clear that, under the provisions of section 2 of such chapter, the judge making such order has the power to hear and determine the motion for a new trial in vacation, if such judge has any poAver to act upon such motion at all. Just here I encoun*558ter one of the crucial points in the motion to strike the s, winch motion I am now considering. It is contended by defendant in error that more than two weeks having elapsed from the 26th day of November, 1906, Judge Palmer’s authority to act as judge of the eighth judicial circuit, derived as it was solely from the order made by the governor, had ceased, and any order so made by him was and is null and void. It is further contended that the order so made by him was and is null and void for the reason that it was made and signed by him out of and beyond the territorial limits of such eighth circuit and within the third judicial circuit. Is this position tenable? I find that the counsel for defendant in error, at the time the notice was presented to him of calling up the motion for new trial for a hearing before Judge Palmer at Lake City on the 15th day of December, 1906, accepted service thereof but stated in his acceptance that he did so “not waiving, but reserving and insisting upon the right to object to all procedure outlined or contemplated therein or thereby.” I further find that at such hearing defendant in error filed the following protest: “In the matter of the presentation of a motion for a new trial sought to be had herein, under and in pursuance of notice of and for such presentation filed herein, comes now the plaintiff and objects to the presentation of such motion on the following grounds, to wit:
1. The Honorable Bascom H. Palmer, judge of the third judicial circuit, is without authority to hear and determine this motion or to make any order in this cause pending in Alachua county, Florida, in the eighth judicial circuit, while out of and beyond the territorial limits of said eighth judicial circuit, to-wit: at Lake City. Florida, in the third judicial circuit.
*5592. Tlie Honorable Bascom H. Palmer, judge of the third judicial circuit of Florida, was, by orders of the governor of this state, authorized and directed to exchange circuits with the Honorable J. T. Wills, judge of the eighth circuit, and the time of said exchange has ceased and determined, as shown by certified copies of said orders here exhibited to the court and made parts of this objection, and the .said judge of the third circuit has no other and further jurisdiction to hear, consider or determine this motion, or to make any order in this cause, pending in the eighth circuit as aforesaid.”
Judge Palmer made an order overruling these objections, and also'on the same day, the 15th of December, 1906, made the following order on the motion for a new trial: “The motion for new trial came on to be heard and was argued by counsel, and upon consideration thereof, it is ordered and adjudged that said motion b8 denied and defendant allowed ninety days in which to prepare and have settled and signed his bill of exceptions. To which ruling defendant excepted, and exceptions noted. Done and ordered in vacation the 15th day of Dec., 1906.”
'On the 26th day of January, 1907, Judge Palmer also signed the bill of exceptions, containing therein the folloAving recital:
“And inasmuch as the said several matters objected to or insisted upon and considered by the court, do not appear by the record, the said defendant did, on the 26th day of January, A. D. 1907, after the expiration of said term, by virtue of a special order herein made, propose this, its bill of exceptions, to said rulings of said judge, and request him to sign the same, Avhich after due notice *560to the opposite party, or her attorney, is done, this 26th day of January, A. D. 1907.
I do hereby certify that the foregoing bill of exceptions contains all the evidence introduced at the trial in the above stated cause.
B. H. PALMER,
Judge of the Third Judicial Circuit, presiding in said trial, by the order of the. Governor, instead of the Judge of the Eighth Judicial Circuit.”
Assuming for the moment that Judge Palmer, although he had left the eighth circuit and returned to his own circuit, had the authority to settle and sign the bill of exceptions, if presented to him within the time required by law, upon the authority of Bacon v. State, 22 Fla. 46, and authorities therein cited, did he have the like power to pass upon the motion for a new trial ? It may well be that the settling and signing of a bill of exceptions, strictly speaking, is not a judicial act, but the “performance of a duty” by a judge as to the certification of certain facts which had transpired before him. I am strengthened in this view by the fact that section 1268 of the Revised Statutes of 1892 empowers and authorizes three persons to sign the bill of exceptions in the presence of the judge, when the judge refuses to sign the same, “which bill shall be as valid and have the same force as though it were signed by the judge of said court.” If it were a judicial act, this section would contravene section 1 of Article V of the constitution of 1885. See Williams v. Pitt, 38 Fla. 162, 20 South. Rep. 936, construing section 1268 of the Revised Statutes of 1892.
I have no doubt, however, that passing upon and making an order upon a motion for a new trial is a judicial act, pure and simple, in which the judge exercises the judicial *561power and discretion vested in him by law. .As was well said in People v. McConnell, 155 Ill. 192, text 201, 40 N. E. Rep. 608, “The court is required to pass upon and determine the motion for a new trial. The determination is a judicial one, to be made by the court, and not by the particular judge who may at a particular time have presided therein.” If, then, Judge Palmer had become functus oficio as to all business pending in the eighth judicial circuit at the expiration of the two weeks he was empowered to act as such judge in the order made by the governor, he could perform no judicial act or exercise no judicial functions as to any matters in the eighth circuit, except under the x>rovisions of Section 1078 of the Revised Statutes of 1892. It is not made to appear that any of the conditions provided for in such section existed, therefore there is no occasion for me to discuss them. It seems clear to me that Judge Palmer could act as judge of the eighth circuit only within the terms of the order made by the governor. It was held in Lauder v. State, 50 Neb. 140, 69 N. W. Rep. 776, that “a judge of the district court, within his own judicial district, has jurisdiction to and may hear and determine a motion for new trial in a case wherein the judge of another district presided during the trial, but before the hearing of the motion, has ceased tó preside.” See to the same effect State v. Gaslin, 32 Neb. 291, 49 N. W. Rep. 353; Chicago, P. & S. R. Co. v. Town of Marseilles, 107 Ill. 315; Manufacturers Mutual Fire Ins. Co. v. Daboll, 79 ich. 241, 44 N. W. Rep. 604; Malone v. Eastin, 2 Porter (Ala.) 182; Fields v. Thornton, 1 Ga., 306.
If, then, Judge Wills, the judge of the eighth circuit, had the power to pass upon the motion for a new trial in *562the instant case, and as to" this I have no doubt, it not having been shown that he was disqualified or unable to act, such application should have been made to him, instead of to Judge Palmer. I am constrained to the conclusion that Judge Palmer had no power to act in the matter, and, therefore, his order was a nullity. This being true, what effect must be given to the bill of exceptions signed by him ? Rule 97 of the Rules,of Circuit Court in Common Law Actions, found on page 32 of rule prefixed to 14 Fla., is as follows: “The bill of exceptions, shall be made up and signed during the term of the court at which the verdict is rendered or trial had, unless by special order further time is allowed. In case such special order is made, it shall be entered in the minutes, and in making up the bill of exceptions the fact that such an order was made shall be mentioned therein, or shall otherwise appear in the record.” This rule was adopted in 1873 and is still in force. It has been construed several times by this court and it has been uniformly held that' “a bill of exceptions should be made up and signed during the term of the court at which the trial is had, unless by special order further time is allowed.” Bardin v. L’Engle, 13 Fla. 571; Smith v. State, 20 Fla. 839; Webster v. Barnett, 17 Fla. 272; Potsdamer v. State, 17 Fla. 895; Bowden v. Wilson, 21 Fla. 165; Temple v. Fla. Land & I. Co., 23 Fla. 59, 1 South Rep. 333; Stephens v. Hale, 33 Fla. 618, 15 South. Rep. 251; Myrick v. Merritt, 21 Fla. 799; Jacksonville St. Ry. v. Walton, 42 Fla. 54, text 79, 28 South. Rep. 59, text. As was said in Bowden v. Wilson, 21 Fla. 165, text 171, “But it is clear, as argued at the bar, that Rule 97 as to the order for further time has not been complied with. It calls for an order made in term and appearing on the minutes and is positive. No order appears on the min*563utes. The rule should be applied to and control cases falling within it till rescinded.”
If Judge Palmer had no judicial powers to exercise as judge of the eighth circuit, at the time he made the order denying the motion for a new trial and allowing defendant ninety days in which to prepare and have settled and signed its bill of exceptions, then the entire order must be regarded as a nullity. Even then if chapter 5403, laws of 1905, by necessary implication conferred upon the judge the power to make an order extendinng or allowing time in which to prepare and have settled and signed a bill of exceptions, after the time he made an order on the motion for a new trial, a point which I am not called upon to determine now, it would not avail the plaintiff in error here. Such an order to be effectual must be a valid order made by one having authority to make it. Under the repeated adjudications of this court it would seem clear that the motion to strike the bill of exceptions would have to be granted. Undoubtedly this would be true unless we should determine that the motion for a new trial still remains pending undisposed of, in which event the principle enunciated in. Stephens v. Hale, 33 Fla. 618, 15 South. Rep. 251, would seem to govern, and the motion to strike should be denied, a motion to dismiss being the proper remedy. Section 1 of Chapter 5403, Laws of 1905, provides that the judge may by order “extend the time for the making and presenting of such motions, not to exceed fifteen days from the rendition of the verdict.” This w ould seem to require that the motion not only had to be made but to be presented as well within the fifteen days. If this be true, of course presentation to the proper judge is meant, as presentation to the wrong judge would be equivalent to no. presentation at all. We have held re*564peatedly that a presentation of the bill of exceptions to the judge within the time allowed is required. See authorities already cited and Bush v. State, 21 Fla. 569; Washington v. State, 48 Fla. 62, 37 South. Rep. 573; Lamb v. State, 50 Fla. 106, 38 South. Rep. 906; Walter v. Perry, 51 Fla. 344, 40 South. Rep. 69. I cannot see why like reasoning would not apply as to the presentation of motions for a new trial, i am of the opinion that the motion for a new trial cannot be said to be still pending, and that the motion to strike the bill of exceptions should be granted.