On Petition for Rehearing.
Ellis, J.An Act of the legislature, as appears by an enrolled bill on file in the office of the Secretary of State, bearing the signatures of the speaker and chief clerk of the House of Representatives, the president and secretary of the Senate and the Governor of the State of Florida showing that it passed the Hou.se of Representatives May 28th, 1921, the Senate June 2nd, 1921, and was approved by the Governor June 10th, 1921, is attacked as an act which had not become a law under the constitution because it had never been presented to the Governor by the legislature as required by the provisions of Article III, Section 28 of the Constitution.
That section of the constitution is as follows: “Every bill that may have passed the Legislature shall, before becoming a law, be presented to the Governor; if he approves it he shall sign it, but if not he shall return it with his objections to the House in which it originated, which House shall cause such objections to be entered upon its journal, and proceed to reconsider it; if, after such reconsideration, it shall pass both Houses by a two-thirds vote of the members present, which vote shall be entered on the. journal of each House, it shall become a law. 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. If the legislature, by its final adjournment, prevent such.action, such bill shall be a law, unless the Governor, within ten days after the adjournment, shall file such bill, with his ob*315jections thereto, in the office of the Secretary of State, who shall lay the same before the legislature at its next session, and if the same shall receive two-thirds of the votes present it shall become a law.”
It is apparent from the language of the above quoted section of the Constitution that before a bill which may have passed the legislature can become a law it must be presented to the Governor by the legislature. The method of presenting it to the Governor may be immaterial so long as the legislature presents it. Some courts hold that where the Constitution requires.the presiding officers of‘the two houses to sign the bill, such signing in open session of an enrolled bill is a presentation to the Governor. That it is an official attestation by the two houses of such bill as one that has passed. It is a declaration by the two houses through their presiding officers to the Governor that a bill thus attested has received in due form the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass the legislature shall be presented to him. Such is the holding in Field v. Clark, 143 U. S. 649, 36 L. Ed. 294, in which case there was under consideration an Act of Congress, the court holding that the signing of the bill by the speaker of the House of Representatives and the president of the Senate in open session was a presenting of the bill to the President by Congress.
In the case of Carr v. Coke, Secretary of State, 116 N. C. 223, 22 S. E. Rep. 16, 28 L. R. A. 737, the petition alleged that the act which was attacked was signed by the speaker of the House and the president of the Senate in the presence of each house. In so far, however, as either of these cases hold that the court has no power to enquire into the passage of an act by the legislature to determine whether *316the requirements of the organic law have been complied with by the legislature, they are not authority in this jurisdiction, because this court has announced a doctrine in line with other jurisdictions holding to the contrary. See State ex rel. Attorney General v. Green, 36 Fla. 154, 18 South. Rep. 334.
The court speaking through Mr. Justice Whitfield in Crawford v. Gilchrist, 64 Fla. 41, 59 South. Rep. 963, said: “Under our system of constitutional government regulated by law, a determination of whether an amendment to the constitution has been validly proposed and agreed to by the Legislature, depends upon the fact of substantial compliance or non-compliance with the mandatory provisions of the existing constitution as to how such amendments shall be proposed and agreed to and such determination is necessarily required to be in a judicial forum where the Constitution provides no other means of authoritatively determining such questions.” Again: “The people of the State have a right to amend their constitution, and they also have a right to require proposed amendments to be agreed to and submitted for adoption in the manner prescribed by the existing constitution, which is the fundamental law. If essential mandatory provisions of the organic law are ignored in amending the constitution of the State and vital elements of a valid amendment are omitted, it violates the right of all the people of the State to government regulated by law. It is the duty of the courts in authorized proceedings to give effect to the existing constitution. The proposal of amendments to the constitution is a highly important function of government, that should be performed with the greatest certainty, efficiency, care and deliberation. With this in view, the organic law confers this prerogative exclusively upon the Legislature, a soverign *317deliberative body, and a co-ordinate department of tbe State government, whose acts are independent of the other departments and subject only to the limitations contained in the fundamental organic law of1 the land. The provisions of the constitution mandatorily require amendments of the constitution to be proposed by either house of the Legislature in regular session and to be “agreed to by three-fifths of all the members elected to each house” of the Legislature. These requirements clearly contemplate that such amendments shall be agreed to by the deliberate, final, affirmative vote of the requisite number of the members of each house of the Legislature duly taken at a regular session. ’ ’
In that case reference was made to the legislative journals to ascertain if the proposed amendment under consideration had been passed in compliance with constitutional requirements.
In the case of Amos v. Mosley, 74 Fla. 555, 77 South. Rep. 619, speaking through Mr. Chief Justice Browne, this court said: “It is a well settled rule in this State that where the Constitution says that ‘each house of the legislature shall keep a journal of its proceedings which shall be published’ and expressly requires that ‘the vote on the final passage of every bill or joint resolution shall be taken by yeas and nays, to be entered on the journal of each house’ the journals are conclusive on the point whether the yea and nay vote was so taken and entered.” And Mr. Chief Justice Mabry, speaking for the court in State ex rel. Attorney General v. Green, supra, said: “There are two conflicting views held by the decisions on this subject. Under constitutional requirements that journals of the proceedings of the legislative bodies shall be kept and published, it has been held in many decisions that where the *318journal entries, as to the legislative proceedings, are explicit, and conflict even with legislative acts regularly authenticated, the journals are superior, and the courts will be governed by them as to matters clearly, explicitly and affirmatively stated therein.. The other view maintained by high authority, is that the legislative act itself embodied in a bill engrossed and enrolled, and bearing the proper official signatures, is of higher dignity than the journals, and wall over-ride them. This court has placed itself on the side of those maintaining the view first stated (State ex rel. v. Brown, 20 Fla. 407; State ex rel. v. Deal, 24 Fla. 293. 4 South. Rep. 899; Mathis v. State, 31 Fla. 291, 12 South. Rep. 681); and as there is ample authority to sustain this view, we will not now make any departure. It is generally held that the plain constitutional injunctions as to the mode and manner of enacting law's are mandatory, and the equally high authority that journals of the proceedings shall be kept, strengthens the view that the evidence of a compliance with such injunctions should be found in the journals. The inconvenience and danger resulting incidentally from the rule that the journals when clear and explicit as to matters proper to be incorporated therein will control, can be guarded against by a proper observance of the prescribed procedure and diligent attention to the making and preservation of the requisite journal evidence. But while the journals wall control, under the rules announced by this court, as to the legislative proceedings, it is proper to observe, in language used by Judge Cooley, and quoted by this court, that whenever the Legislature is acting in the apparent performance of its legal functions, every reasonable presumption is to be made in favor of the action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either House has exceeded its authority or disregarded *319a constitutional requirement in the passage -of legislative acts, unless where the Constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered. State ex rel. v. Brown, 20 Fla. 407. As all bills and joint resolutions that pass both Houses of the Legislature are required to be signed by their respective presiding officers, and also by the secretary of the Senate and clerk of the House of Representatives, an act thus authenticated and approved by the Governor will not be set aside unless the journals affirmatively and explicitly show that the constitutional requirements have not been observed, except where the Constitution requires the journals to show the action taken, and then their silence will be fatal. An examination of the journals of the two Houses of the Legislature, which must control us, leaves no room to doubt that the title of the act as it passed both Houses differs, in the particulars mentioned, from the title of the enrolled bill approved by the Governor. The journal evidence of this fact is affirmative and explicit.-
It is settled by this court that the Governor acts as a part of the law-making powers of the State in approving bills passed by the Legislature, and unless substantially the same bill that passed the two Houses of the Legislature is submitted to the Governor for his approval, it cannot become a law by his approval, or silence, or against his approval. Advisory Opinion, 23 Fla. 297, 6 South. Rep. 925; State ex rel. v. Deal, 24 Fla. 293, 4 South. Rep. 899.”
Much that is contained in the above quotation is obiter dictum. The court had under consideration merely the question whether an enrolled bill on file in the office of the Secretary of State bearing the signature of the speaker and chief clerk of the House of Representatives and pre*320sident and secretary of the Senate and Governor of the State conld be successfully impeached by the legislative journals on the ground that the title of the act as it passed the legislature was different from the one appearing upon the enrolled bill’after the formalities of signing by the presiding officers of the two houses of the legislature and the respective clerks of each house and approval by the Governor had been complied with. The'answer to that question was in the affirmative and the .reason given for the answer was that the legislative journals which the constitution required should be kept and published were evidefice of superior dignity and quality than the record in the office of the Secretary of State of legislative action. In arriving at this conclusion it was pointed out that there were two lines of authorities, one holding to the affirmative of the proposition and the other to the negative..- This court decided to follow the former.
.The proposition that the silence of the legislative journals upon legislative action which the constitution does not .expressly require to be recorded in the journals of the two houses shall not be taken as evidence that the required legislative action was not taken but on the contrary every reasonable presumption is to be made in favor of the action of the legislative body was announced in the case of Mathis v. State, 31 Fla. 291, 12 South. Rep. 681, for the first time in this State. The question arose upon the validity of the enactment of the Revised Statutes.
The court held that all the proceedings in reference to the adoption of the Revised Statutes required to affirmatively appear on the journals were there recorded and rejected the contention that there was nothing to show that the Revised Statutes accompanying the bill were read and the further objection that there was nothing to identify the *321Revised Statutes on file in the Secretary of State’s office being the same revision of the statutes which was before the legislature accompanying the bill providing for their adoption.
In case of State ex rel. Boyd v. Deal, 24 Fla. 293, 4 South. Rep. 899, the court speaking through Mr. Justice Raney held that the Governor acts as 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. The question arose upon the validity of the Palatka charter and the decision was by a divided court. Mr. Chief Justice Maxwell, who delivered the dissenting opinion, 'questioned the accuracy of the loosely expressed idea that the Governor in approving a bill passed by the legislature acted in a legislative character and pointed out that his approval was not essential to the validity of a bill passed by the legislature and presented to him. But in 1887 the justices of the court in an advisory opinion- to Governor Perry said that when the Governor was required by the constitution to do any act which is an essential prerequisite to the enactment of laws, such act is legislative in character and is performed by the Governor as a part of the lawmaking power and not as the law-executing or executive power.
Advisory opinions however do not have the same force and effect as primary authority as decisions of the courts for the obvious reason that they are given in the nature of advice to the executive without the benefits derived from a litigated point on which the court has the advantage and aid of counsel’s argument. They are not judicial decisions but merely the expression of the opinion of the individual justices and accordingly without binding effect in a subsequent judicial proceeding before the court. See *322Laughlin v. City of Portland, 111 Maine 486, 90 Atl. Rep. 318; Woods v. City of Woburn, 220 Mass. 416, 107 N. E. Rep. 985, Ann. Cas. 1917A 492 and note.
The reasoning of Judge Maxwell in opposition to the suggestion that the Governor acts in a legislative capacity while approving a bill appears to me as most cogent. Each branch of the government necessarily at times either by express'provision of the constitution or in the orderly administration-of the State’s affairs comes in contact with one or the other branch, but such contact in no wise merges the functions of one into that of the other. It appears to me as accurate to say that the court acts in a legislative capacity when it declares an act of the legislature to be unconstitutional as to say that the Governor so acts when he vetoes a bill. There would seem to be greater reason for the first proposition than the latter, because when the court declares an ac invalid it destroys its effect, but a bill-passed by the legislature may become a law the Governor’s veto notwithstanding.
¡Before a bill passed by the legislature can become-'» law it must be presented to the Governor by the legislature:: Our system "of government-thus-provides two'checks upon legislative action, one a check, not however complete, by the- executive, and the other a complete check by the judicial braiaeli when ¿cause arises'in due form and the cburt deeins the'legislative action'to have been in violation of the'express or necessarily implied limitations of the 'constitution but In ’neither case does either official;' the Governor or the judges, act in a' legislative capacity.' ■ " _''
-•According to this, view, .therefore; an enrolled.'bill'bearjng'i'thei signature's/ of> the1 presiding officers of' thg .'two; Hóuses hnd¡,their respective'.clerks-whicli is presentedtOKthe *323Governor in the manner which the usage, .the orderly con-, duct of legislative procedure and the rules under which the, two bodies- have ever acted and the express mandatory pro-, visions of the constitution requiring its presentation to the Governor marks the termination of - legislative 'action in regard to it.
When such bill receives the approval of the Governor and. is signed by him and filed with the Secretary of State it becomes an executive record importing verity as to the or-, derly presentation of the bill to him as one which had passed the legislature which fact is essential to its becoming a law.
The constitution definitely in most unequivocal terms, explicity and unreservedly requires certain procedure to be followed by the legislature in the passage of a bill or joint resolution, and those requirements are that on final passage the bill shall be read by sections, the yea and nay vote shall be taken, the presiding officers of the respective, houses and the secretary of the Senate and 'clerk of the House, of Representatives shall sign the same and the yea and nay vote on final passage in each house shall be entered on the respective journals. See Sect. 17 Art. Ill Constitu-, tion.
The reason for requiring the signatures of the presiding officers and clerks of the two Houses is clearly expressed in the ease of Field v. Clark, supra, by Mr. Justice Harlan,, whose aid, speaking of the Constitution- of the United States, “although the constitution does not expressly require bills .that have passed Congress to be attested by the, signatures of the presiding officers of the two houses, usage,the orderly conduct of legislative proceedings and the rules; und,ér:which,the two bodies have, acted since the organiza*324tion of the government require that mode of authentication.” He then proceeds to say that such signing “in open session of an enrolled bill is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses through their presiding officers to the President that a bill thus attested has received in due form the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him.”
The constitution of Florida, as herein before stated, contains a provision identical in meaning with that of the Constitution of the United States as to the action the legislature shall take after a bill passes that body. In the case of the Federal Constitution the language is: “Every bill which shail have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States.7 7 The language of the Constitution of Florida is: “Every bill that may have passed the legislature shall, before becoming a law, be presented to the Governor.” In addition, the Constitution of Florida requires the signing by the presiding 'officer of the two Houses and their clerks.
It seems to the writer that to hold these provisions of the organic law to be directory, that the signing of the bills passed ma.y be done after the legislature has adjourned sine die and cannot reassemble except upon call by the Governor under the constitutional provisions for calling extraordinary sessions, that after such adjournment the bill may be enrolled and the signatures of the officers written upon a blank sheet of paper which is afterwards used as-a-cover for the so called enrolled bill, is to trifle with language, make a sport of the greatest powers committed *325by the people to their representatives in legislature assembled, to ignore the solemn mandates of organic law, and open wide the door to fraud which designing.persons may desire to perpetrate upon the people in the name of legislation. What becomes of the legislative attestation, in such case, that the bill so signed is the one that passed the legislative body, which the Supreme Court of the United States deemed so essential to orderly and exact legislative proceedure ?
The Constitution of Iowa adopted in 1857 contains a provision that ‘1 every bill having passed both Houses, shall be signed by the speaker and president of their respective Houses.” The Supreme Court of Iowa held this provision to be mandatory. See State ex rel. Hammond v. Lynch, 169 Iowa 148, 151 N. W. Rep. 81, L. R. A. 1915D 119; Cooley’s Constitutional Limitations 94.
Judge Cooley says “It is the province of an instrument of this solemn and permanent character: to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters it is lowering the proper dignity of such an instrument and usurping the proper province of ordinary legislation.” The Supreme Court of Iowa holds that the enrolled bill on file with the Secretary of State is the ultimate proof of its passage in the form there appearing and that beyond this the courts cannot go in ascertaining whether the legislature complied with the requirements of the Constitution. This court, however, as has been shown, holds to the contrary view on that point.
The Constitution of Texas 1876, Sec. 38. Art. Ill requires the bill passed by the legislature to be signed by the speakers of the two Houses in open session, and the fact of sign*326ing to bo entered on the journals. The court held the provision to be mandatory and that the journals could be rer ceived in evidence to show that the requirements had not been complied with, notwithstanding the enrolled bill signed by the two speakers and the Governor was on file with the Secretary of State and in so holding repudiated a contrary rule broadly announced in prior decisions. See Hunt v. State, 22 Texas App. 396, 3 S. W. Rep. 233.
In the case of People ex rel. Akin v. Rose, 167 Ill. 147, 47 N. E. Rep. 547, the question is not discussed at all. The petition for mandamus to require the Secretary of State to file the bill and authenticate the. same while it recited the fact that the bill was enrolled and signed after the legislature adjourned presented the only point raised by the Secretary of State for refusing to file the same, which was that the bill had not been presented to the Governor for approval within ten days after the adjournment of the General Assembly. The court awarded, the mandamus in a modified form, directing that unless the Governor should veto the bill before the ten days elapsed and return the same with his objection the writ would issue. The decision was announced orally upon the facts stated in the petition. The only question considered was the construction of the term “within ten days, after adjournment.”
I am persuaded that the following propositions are sound and are the law in this State :
1st. The provision contained in Section 17, Article III, of the Constitution requiring the presiding oficers and the clerks of each house of the legislature to sign all bills and joint resolutions passed is mandatory.
2nd. That such signing of bills and joint resolutions must be done in open session of the House over which the. *327officer signing is then presiding and to which the clerk sighing is attached.
3rd. That no bill passed .by the legislature can become a law until it has been presented by the legislature to the Governor.
4th. That such presentation can be made by the legislature only while in session.
5th. That the enrolled bill on file with the Secretary of State showing upon its face to have been signed by the presiding officers of the two Houses and their respective clerks before the legislature adjourned and to have.been approved by the Governor is prima facie evidence that all mandatory provisions of the Constitution as to the requirements to be observed by the legislature in the passage of the bill, signing by the officers and presentation to the Governor, have been complied with.
6th. That such prima facie evidence may be overcome by reference to the journals of either house, which if they affirmatively show such mandatory provisions were not complied with the so called act of the legislature must fail.
7th. That the approval by the Governor of a bill which has passed the legislature, is a certification by him that the bill after .its passage was presented to him while the legislature was in session.
; 8th: That the Governor's approval of a bill passed by the legislature constitutes an .executive record which imports the same verity, is as solemn and dignified an act and entitled to the same faith, credit and. respect, as the records of a court or those of the legislature.
9th. That the silence of the journals of the- legislature upom the question of., whether. the .-bill passed, by the leg*328islature was signed by the presiding officers of the two houses and their clerks does not overcome the prima facie evidence of regularity afforded by the enrolled bill on file with the Secretary of State, bearing upon its face the approval of the Governor and the signatures of the presiding officers of the two houses of the legislature appearing to have been attached before the legislature adjourned.
The allegations of the bill charge the Governor, the president of the senate, the speaker of the house of representativs and the clerks of the two houses with conduct involving a disregard of the mandatory provisions of the constitution. Not conduct of a fraudulent or arbitrary character evincing disrespect of their obligations to the State, but of official action nevertheless which misrepresents the circumstances under which their names were signed to the bill.
■ If, for instance, the officers of the two houses signing the bill under the extraordinary circumstances alleged in the complaint had frankly stated the fact, and the Governor had likewise stated over his signature the circumstances under which the bill came to his possession, the question would have been fairly presented upon the record made and the people would have been fully and accurately informed of the facts, and the question could have been determined by the courts squarely upon the proposition of whether the signing of a bill by the presiding officers of the two Houses was mandatory and whether such signing was required to be done in open session.
As it is the determination of these vital questions, involving as they do the powers of the legislature, the safeguarding of the peoples rights from abuse that in a different case under a different administration at another time, people of conscienceless characters and designing motives *329may desire to practice upon the people for selfish ends becomes unnecessary and the issue may be made to turn upon a rule of evidence or pleading.
If the allegations of the bill of complaint are true and the court holds the bill passed by the legislature to be valid notwithstanding, it is high time that the people of the State of Florida should be informed of the facility with which plain mandates of the constitution imposed by them upon their representatives in legislature assembled may be ignored by their representatives and the case with which the courts of the land may be prevailed upon to facilitate such practices by interpretation of words, construction of language which emasculates and devitalizes the living words of the people written by them in their Constitution to limit the powers of their servants to the end that liberty and the pursuit of happiness may be secured to them and their posterity.
But the question presented in this case becomes one of pleading and later possibly one of evidence.
It is not correct, as stated in the petition for rehearing, that the presumption of facts arising from the enrolled bill in the Secretary of State’s office is a nontraversable fact. Nor is it in any sense true that the bill imports absolute verity. Its validity may be attacked as successfully as the verity of any other record. The power to correct error is inherent in all governments. As pointed out, this court will have recourse to the legislative journals to determine in some cases whether an act of the legislature duly signed and approved and on file with the Secretary of State is valid legislation.
The signature of the Governor to the bill on file with the Secretary of State makes the document an Executive Eec*330ord. It implies that the bill came to’ him in due course while the legislature was in session pursuant to the clear and unmistakable language of the Constitution. The bill-of complaint charges a state of facts contradictory of the clear implications of the record. A state of facts which if true would vitiate the record and render it void and of no effect. But may the record be attacked collaterally ? Has the Comptroller by the Attorney General the power to admit a state of facts which would impeach an Executive Record and destroy its effect, a record in the making of which he had no part?
Assuming that the complainant as a citizen and tax payer may maintain his bill to test the validity of the act, if he relies upon the misconduct of officials’ to impeach the record should they not be parties? Or if he relies upon the affirmative declarations of the legislative journals to sustain the truthfulness of his allegations, should he not allege that the journals contain- such affirmative evidence of the invalidity of the act? In the event of issue joined upon the allegations of fact contained in this bill and the journals are silent as to the enrolling and signing of the bill how is the proof to be made? Will the speaker of the House or President of the Senate, or Governor, be permitted to testify to any fact that would impeach the official record ?
These questions were not considered in the majority opinion nor in the minority opinion filed by Mr. Justice Whitfield and concurred in by Mr. Justice West. I consider them essential to be considered in the determination of the question raised upon demurrer and for the reason given I favor the granting of a rehearing in this case and so vote.