Amos v. Gunn

Browne, C. J.

It appears from the record, and it is not controverted, that House Bill No. 702, published as Chapter 8411 of the Laws of Florida, Acts of 1921, was not signed by the presiding officers of the Senate and House of Representatives until after the expiration of the constitutional period of sixty days during which -a legislative session may last, and after the legislature adjourned sine die on the 3rd day of June, 1921.

This presents the question of the validity of the act, in which is involved whether or not in its passage through the two houses of the legislature, from the time of its introduction in the House to its signature by the presiding officers, all the constitutional requirements for making a bill a law, were complied with.

To decide this, we must consider and determine these two questions:

(1) Are the signatures of the presiding officers of the-two houses of the legislature essential before'a bill can become a law!

(2) If such signatures are essential, must the bill be signed before the legislature adjourns sine die?

To both of these queries, we are compelled to answer, yes.

The clause of the constitution on this subject is: “all bills or joint resolutions so passed shall be signed by the presiding officer of the respective houses.” Art. Ill, Sec. 17, Constitution of Florida.

This is as mandatory as any other constitutional provision controlling the valid enactment of a law, and we have no hesitancy in declaring that the signing of a bill by “the presiding officer of the respective houses,” is essential to the valid enactment of a bill into a law.

From saying that this provision of the constitution is mandatory, it must not be inferred that we regard any of the provisions of that great charter of liberties as merely directory, as we fully agree with what was said in the case of Hunt v. State, 22 Tex. App. 396, 3 S. W. Rep. 233. “But notwithstanding these decisions are by able courts, the great weight of authority seems to be the other way, holding that the courts nor any other department of the government are at liberty to regard any provision of the Constitution as merely directory, but that each and every of its provisions must be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes. Judge Cooley, in his great work on Constitutional Limitation, upon this subject says: ‘The courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution.’ ” .

Judge Cooley also has this to say on the mandatory character of constitutional provisions: “If, therefore; a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it.

And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law, so great is that which is done.by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed.” Cooley’s Const. Lim. (6 Ed.). 180.

We come now to the second question: when shall the presiding officers perform this duty?

The signing of a bill by the presiding officer of either house is a legislative act, and after the expiration of the period of sixty days to which it is limited by the constitution and after the adjournment of the legislature sine die, neither the legislature, nor any membér thereof, including the presiding officers, can perform any act required by the constitution to be done in the passage of a bill.

If the duty of the presiding officer to sign bills properly passed by the body over which he presides, is not a legislative act, but merely a ministerial one it follows, (1) that a writ of mandamus would lie to require him to sign a bill,, and (2) that an injunction would lie to restrain him from signing a bill upon an application showing that he was about to sign an unconstitutional measure.

Such a construction would make the proceedings of the legislature subordinate to the judicial power. This proposition needs only to be stated to be its own refutation.

If the presiding officer of either house of the legislature may lawfully withhold his signature from a bill that had been regularly and properly passed by the house over which he presides, until after the sine die adjournment of the legislature, it would be within his power to defeat the passage of any bill by holding it until after the adjournment and then refusing or failing to sign it.

On the other hand, if this duty is one that must be performed during the session, and the presiding officer should refuse to sign it, he could be required to do so, or deposed from office-and another “presiding officer” elected, who would have authority and whose duty it woirld be to sign the bill.

One construction deprives the legislature of the power to control its presiding officers and lodges in either of them the power to defeat a bill otherwise regularly, lawfully and constitutionally passed.

The other permits the legislature to control its presiding officers and to require them to perform their duties.

The necessity for the presiding officers to sign an act before the constitutional term of the legislature has expired, seems to have been recognized by the presiding officers of the Senate and House of Representatives in signing House Bill No. 702, because, while it is admitted that each of these officers signed the bill at least twenty-four hours after the legislature adjourned sme die, the Speaker certified that it had “passed the House of Representatives this 28th day of May A. D., 1921,” and the President of the Senate certified that it “passed the Senate this 2nd day of June A. D., 1921.”

The use of the terms: “this 28th day of May,” and “this 2nd day of June,” means that these were the days and dates when the presiding officers affixed their signatures thereto.

If the President of the Senate and the Speaker of the House had construed the constitutional requirement to mean that they could sign the bill any time after the adjournment óf the legislature sme die, the certificate of the Speaker of the House would have been and to this effect, “passed the House of Representatives the 28th day of May, A. D. 1921, “and “signed by me this 4th day of June A. D. 1921.” And so of the signature of the president of the Senate.

The cases cited on both sides of the question under consideration, are not determinative, and no useful purpose would be served in discussing them. In some, the provisions of the constitution differ from ours, in others a different situation was presented, and in two instances where the courts at one time held one way, later decisions seem to adopt or at least to favor a different rule.

We are firmly of the opinion that the presiding officer of either house of the legislature has no authority to sign a bill after the adjournment of the legislature sine die.

It is unfortunate that this situation has arisen, but this court has nothing to do with the manner in which the legislature performs its duties, and if it adjourns without having completed them, amopg which is to see that its presiding officers have signed all bills that have duly and properly passed both houses, it has allowed the bill to die, and this court cannot breathe into it the breath of life.

We are keenly alive to the seriousness involved in courts nullifying what purports to be a law enacted by the legislature, but we are as keenly alive to the sériousness involved in giving life by judicial sanction to such enactments when in their passage through the legislature all the constitutional requirements have not been observed. The rights of persons and property and human liberties, are not apt to be affected by legislative non-action, or by the failure of proposed legislation, but they may be seriously impaired if the courts sanction lax methods in attempting to enact laws, and treat as unessential, constitutional provisions governing the legislature and its officers in the enactment of laws.

The view which we take of this case precludes the determination of other questions involved.

As the requirements of Article III, Sec. 17 of the Constitution of Florida were not complied with, the act never became a law, and the judgment of the chancellor is affirmed.

Taylor and Ellis, J. J., concur.

■Whitfield and West, J. J., dissent.