*331On Eehearing.
Ellis, J.Upon the first hearing in this case the court was divided upon the question, whether a bill duly passed by the legislature was required by the constitution to be signed by the presiding officers of the two Houses and respective clerks thereof, during the legislative session and by the legislature presented to the Governor. A majority of the court holding to the affirmative view.
There was no difference of opinion as to the mandatory character of the two provisions, one requiring all bids passed to be signed by the presiding officers of the respective Houses and by the Secretary of the Senate and the Clerk of the House' of Eepresentatives, Section 17, and the other which provides that every bill that may have passed the Legislature shall, before becoming a law, be presented to the Governor, etc., Sec. 28, Article III. The division arose upon the proposition that these requirements were to be observed while the legislature was in session. The majority holding the affirmative of the proposition.
That view seeming to the majority to be the more reasonable in the light of Section 28 of Article III which requires the Governor to return the bill to the House in which it originated with his objections if he does not approve it; and provides that if it is not returned within five days after it shall have been presented to the Governor it shall be a law in like manner as if he had signed it, and that if the legislature by its 'final adjournment prevents such action, the bill shall be a law unles the Governor within ten days after the adjournment, shall file the bill with his objections thereto in the office of.the Secretary of State.
In the view of the writer, the purpose of the section clearly being to grant to the Governor five days while the legis*332lature is in session in which to exercise the power of veto and as to all bills presented to him during the last five days of the legislative session, ten days additional in which to exercise his power of veto. Section 28 of Article III is the only section in the constitution relating to the Governor’s veto power except Section 18 of Article IV relating to the disapproval by him of any items of any bills making appropriation of money. But the veto power is of as great dignity and as salutary a provision as any relating to the powers conferred upon any branch of the government. It was designed as a check upon errors or a protection of the constitutional rights of the people against abridgements.
As said by Mr. Ordronaux in his work on Constitutional Legislation, the veto power is capable of being expressed in precise numbers. It is represented by the difference between a majority vote and a two-thirds vote. In 1921 the Governor’s veto power -therefore was equal to eighteen votes. This number, of course, may be reduced if when the veto is considered, a bare majority of the House considering it is present. But neither that fact nor the thought that the veto power may be exercised because of differences that may exist between the executive and the legislature on questions of policy and therefore much of its moral weight is lost and no longer shakes the confidence of the people in thejhonesty or capacity of their representatives, can destroy tbe dignity or importance of the powers vested by the people in their Chief Executive. It is not a personal privilege to be waived aside by the Executive, it is a power vested in the office in trust to be exercised to the end that its full purpose may be realized in the orderly transaction of legislative business. It cannot be lengthened nor abridged either by the legislature, nor its presiding officers. ¡ - r;
*333Yet, the view that the 'mandatory requirement of the constitution that all bills passed by the legislature shall be signed by the presiding officers of the two Houses and the respective clerks thereof may be complied with by those officers after the legislature adjourns and then presented to the Governor so long as it is done within ten days after adjournment by the legislature sine die, leads to the inevitable conclusion-that the time secured by the constitution in which the Governor may exercise the veto power may be abridged by the Speaker of the House, or the President of the Senate or the Clerk of either House, unless a further modification of the rule is. made to the effect that the signing by those officers of a bill passed may be done after the bill has been presented to the Governor and after he has signed it. But even in such case the bill must have been presented to the Governor before the legislature adjourned in order that the ten days fixed by the constitution in which the power of veto may be exercised; shall not be abridged.
So to the majority in the first hearing of this case the conclusion seemed to be unescapable that the constitution required that all bills passed by the legislature should be signed by the presiding officers of the two Houses and the respective clerks thereof while 'the legislature was in session and that the legislature should then present the bills so passed to the Governor as required by Section 28 of Article III of the constitution. Such was the interpretation of the constitution made by the legislature itself, as shown by the legislative rules of procedure referred to in the minority opinion.
A power vested by the constitution in the Executive branch of the government which is equivalent to one-sixth of the legislátive power in the. enactment of laws and de*334signed as a check upon legislative errors or abridgments by that body of the peoples’ rights, is not one to be interfered with by the legislature itself nor any of its officers or clerks, nor to be abridged by any of them upon the plea of inattention to duties or negligence in the discharge thereof nor upon any other pretext whatever. It seems unreasonable to a degree to suppose that the legislature can 'by delaying the presentation of a bill passed by it, to the Governor, until after adjournment if presentation is then possible, prevent the Governor from having the time for consideration which is intended by the constitution.
■ But the first question presented in this case is one of .pleading. The bill alleges that the mandatory requirements of the constitution relating to the signing by the presiding officers of the two Houses of the legislature and ■their respective clerks of the bill passed and presentation of it to the.Governor were not complied with. That the bill was not signed by the two presiding officers nor the clerk of each House, nor presented to the Governor by the legislature, nor did it reach his hands until after the legislature had adjourned sine die.
That the document on file in the office of the Secretary of State, purporting to be an Act of the legislature approved by the Governor on June 10th, 1922, designated as House Bill No. 702 and appearing among the statute laws of the State as Chapter 8411 against the enforcement of which by the Comptroller of the State an injunction was prayed, was not written until after the legislature adjourned, was not signed by the presiding officers of the two Houses of the Legislature during the session but they signed their names upon the document Sunday, Jun'e 5th, 1921, which was one full day after the legislature’ adjourned. Thai the Governor, in whose possession the document Then *335was, but into whose hands it had not come until after the legislature had adjourned sine die, signed it on the 10th day of June, 1921, in full knowledge of all the irregularities alleged, and then transmitted it to the office of the Secretary of State.
A demurrer to the bill was interposed by the Comptroller. The two grounds presented being that the bill did not make such a case as entitled the complainant to the relief sought and that the bill showed no right in the complain7 ant to the relief prayed.
The bill of complaint attacked the constitutionality of the statute from two positions. First, that it had not become a law because it had not been presented to the Governor nor signed by the presiding officers and clerks of the two Houses of the legislature as required by the con7 stitution, and secondly, that the act even if regularly passed is void because it .is an unauthorized attempt by the legislature to impose other than a license tax or an ad valorem tax on property. That it is an unlawful and unreasonable discrimination between persons and classes of persons selling gasoline and other products and violates Section 12 of the Declaration of Rights and is void for other reasons.
In the consideration of the case the court has discussed only the first ground of attack and in the first opinion held the act to be void because of the irregularities alleged. The rehearing was then granted, which reopens that question, so that the court now has before it for consideration the two grounds or positions of attack made by the bill of complaint.
Upon the first ground of attacki certain facts referred to herein were alleged in the bill of complaint. It is contended that the demurrer admits those facts so alleged, for the *336purpose of this argument. And the facts being admitted show a violation of mandatory provisions of the constitution in the attempted exercise of legislative power in the enactment of the bill attacked. But the question which we meet upon the very threshold is, how can those facts be known. A demurrer admits the truth of all essential matters of fact as are well and sufficiently pleaded. See Shone et al. v. Bellmore, 75 Fla. 515, 78 South. Rep. 605; Capital City Bank v. Hilson, 64 Fla. 206, 60 South. Rep. 189.
But a demurrer does not admit as true allegations which the law would not allow to be proved, nor facts that are inconsistent with law. See Brown v. Avery, 63 Fla. 355, 58 South. Rep. 34, Ann. Cas. 1914A 90n; Owen v. Baggett, 77 Fla. 582, 81 South. Rep. 888; Rivers v. Brown, 62 Fla. 258, 56 South. Rep. 553; 81 Fla. 805.
In the case of Brown v. Avery, supra, a petition attacked a document which upon its face appeared to be a will by alleging facts showing that neither at the time it was made nor afterward was it intended by the maker to be her last will and testament. Parol testimony was necessary to establish the facts alleged and such facts would have the effect of varying the meaning of the instrument, so that such facts so alleged were necessary to establish the grounds of the petition. A demurrer was interposed to the petition and it was sustained. Upon appeal this court affirmed the ruling holding that parol evidence is inadmissible for the purpose of showing that an instrument purporting to be a will, fair and regular upon its face, properly executed as such, was not intended to operate as a will. The demurrer, therefore, did not admit the facts alleged. The court referred approvingly to Rivers v. Brown, supra, holding that a demurrer was properly sustained to a plea which *337sought to lay the foundation .for the introduction of parol testimony to contradict the terms of a written instrument upon which the action was based.
So the point in pleading is well established in this State that allegations of fact not susceptible of proof are not admitted by a demurrer to a pleading in which such allegations of fact appear.
That doctrine brings us to a consideration of the question whether the allegations of fact contained in the bill of complaint and which are relied upon to prove that the document on file in the office of the Secretary of State and designated as Chapter 8411 Laws of Florida is not an Act of the legislature because it was never presented by that body to the Governor and was not signed during the legislative session by the presiding officers and clerks of the two Houses, are susceptible of proof by parol evidence, or other means aliunde the legislative journals.
We say aliunde the legislative journals because it was admitted in the oral argument and reference to the journals confirm the admission that nothing therein contained supports the allegations made. So that if the complainant was put to proof of the facts alleged he must rely upon parol evidence or upon other means of proof to support the allegations of fact.
It may also be stated as a fact shown by the legislative records in the office of the Secretary of State who under the constitution is the legal custodian of all records of official acts of the legislative and executive departments that House Bill No. 702 designated as Chapter 8411, Laws of Florida, was duly passed by the legislature and that the yea and nay vote on the final passage was duly entered on the legislative journals of each House and that the provi*338sions of House Bill No. 702 are identical with those of Chapter 8411 or the so called enrolled bill on file in the office of the Secretary of State which is the document referred to in the bill of complaint. It is also true that the enrolled bill contains the following endorsements:
“House Bill No. 702. Passed the House of Representatives this 28th day of May, A. D. 1921, Frank E. Jennings, Speaker of the House of Representatives. B. A. Meginniss, Chief Clerk of the House of Representatives.
“Passed the Senate this 2nd day of June, A. D. 1921, W. A. MacWilliams, President of the Senate. C. A. Finley, Secretary of the Senate. Examined and found correctly enrolled. L. C. Crofton, Chairman of Committee on Enrolled Bills. I certify that this act originated in the House of Representatives. B. A. McGinniss, Chief Clerk of the House of Representatives. J. B. Shuman, Enrolling Clerk of the House of Representatives. Approved this 10th day of June, A. D. 1921, Cary A. Hardee, Governor.” The legislature adjourned sine die June 3rd, 1921.
It is contended by the complainant’s solicitor that the court will take judicial knowledge of the facts alleged in the bill of complaint. That it may inform itself by any means within its power as to the facts alleged, that it may subpoena the Governor and the men who endorsed the bill to testify when the document came to his hands and by what means and when they endorsed their names upon it. Upon the other hand, the Attorney General contends that the document which is attacked is a final legislative record, that it imports verity, is presumed to be a valid legislative enactment and cannot be attacked nor its validity denied except by an affirmative .record or entry in the legislative journals showing the irregularity of its passage as alleged *339in the bill or by some defect appearing upon the face of the record or contained in its language.
The bill of complaint does not charge fraud. There is no allegation that the Governor and the presiding officers and clerks of the legislature conspired to impose a fraud upon the people of the State, nor that the officials named were guilty of any form of political depravity, but the bill rests in the last analysis as to the first ground of attack upon the statement that the document is not a record of an executive or legislative act because the officers of the legislature did not sign it during the session of the legislature nor was it presented to the Governor by that body. And it is contended that as there was no signing of the bill during the session and no presentation to the Governor by the legislature, that there could be no record in the legislative journals upon the subject and therefore the document could not become a record of either an executive or legislative act, that it is a spurious, illegitimate, counterfeit thing of no virtue whatsoever.
If the document as it appears on file in the office of the Secretary of State is a record of an official act of either or both the executive and legislative departments, then it imports verity, is prima facie valid and may not be impeached, discredited by any evidence which is of less 'dignity, and as the.legislative journals constitute the only evidence superior in dignity to the record of the legislative act required by the constitution to be kept by the Secretary of State it may be impeached only by such journals and unless they affirmatively show the irregularities charged, the document stands unimp eaehed as the record of a legislative act. State ex rel. Attorney General v. Green, 36 Fla. 154, 18 South. Rep, 334; State ex rel. v. Brown, 20 Fla. 407; State ex rel. Boyd v. Beal, 24 Fla. 293, 4 South. *340Rep. 899; Mathis v. State, 31 Fla. 291, 12 South. Rep. 681; Amos v. Mosley, 74 Fla. 555, 77 South. Rep. 619; Wade v. Atlantic Lumber Co., 51 Fla. 628, 41 South. Rep. 72; State ex rel. Turner v. Hocker, 36 Fla. 358, 18 South. Rep. 767; West v. State, 50 Fla. 154, 39 South. Rep. 412.
That doctrine has been invariably adhered to by this court without modification since State ex rel. v. Brown, supra. If therefore the document, referred to as the enrolled bill, is a record of an official act of the legislative department, the demurrer should have been sustained as to the first ground of atack because facts are alleged to impeach the record which are not susceptible of proof except by the legislative journals which it is admitted do not affirmatively sustain such allegations.
The position must therefore be taken that the so called enrolled bill which is on file in the office of the Secretary of State and which bears upon it the signatures of the presiding officers of the two Houses and their respective clerks and the signature of the Governor and that of the Chairman of the Committee on Enrolled Bills and the signature of the Enrolling Clerk of the House of Representatives, all of which are admittedly genuine signatures, is not a record of an official act of either the executive or legislative department. That, although the bill of which the document attacked is a.copy passed the legislature, it never became a law because it was never presented by the legislature to the Governor and as it was never presented to him by the legislature, which is the only legal means by which it could reach the Secretary of State, the document which was endorsed as stated by the Governor and others is not such an instrument as the law provides shall be kept by the Secretary of State and cannot by mere endorsement by the Governor and legislative officers and filing in the *341office of the Secretary of State be converted into a record of an official act of the legislative department.
A “bill” is a proposition reduced to writing, submitted to the consideration of the legislature, which, when it has received the endorsement or support of a majority vote of the members present of each House and yea and nay vote taken upon the final passage, entered upon the journals of each House it is said to have “passed.” The use of the word “bill” in Section 28 of Article III of the constitution providing that every “bill” that may have passed the legislature shall, before becoming a law, be presented to the Governor; and in the proviso to Section 17, Article III providing that all “bills” so passed shall be signed by the presiding officers of the respective Houses, etc., was not intended, as the legislature by its rules has indicated, to designate the original written document first submitted. But it has reference to the last writing which contains all the amendments and changes made by the legislature in the “bill’s” journey through the two Houses. It contains the original proposition in its altered or amended form, if there have been any changes. It represents the last thought of the legislative mind. It is the repository of the latest expression of legislative purpose and intention concerning the original proposition.
That document eventually becomes an official record of a legislative act when approved by the Governor or passed over his veto. But to become such a record it must first pass from the legislature, as held by the majority in the former opinion, while in session, through some agency of its own into the hands of the Governor, whose constitutional duty it is to receive it and to approve it or return it with his objections to the House in which it originated or to the Secretary of State, with such objections, if the legislature *342by adjournment sine die prevents its return in due time to the legislative house in which it originated.
A bill that passes the legislature and is duly presented to the Governor and duly approved by him and transmitted to the Secretary of State by his direction becomes ipso fació a record of an official act of the legislative department and in the custody of the Secretary of State, without the ceremony of any formal delivery to him by the Governor in person. It is immaterial whether it be a legislative or executive record or a record of both departments. It is a record of a coordinate branch of the government. It is complete, final, conclusive, unimpeachable, except perhaps for fraud, unless contradicted by records of the same department of superior or equal dignity or carries its death upon its own face.
Now the “enrolled” bill referred to in this case is in the keeping of the Secretary of State, on file in that office, and bears upon its face every evidence of regularity. The signatures upon it are genuine and all mandatory requirements of the constitution regarding signing by officers and clerks of the two Houses affirmatively appear to have been complied with, and the Governor’s approval appears to have been given within the time allowed for consideration by him.
But the complainant says that the bill, House Bill No. 702, was never enrolled by the legislature, never signed by the presiding officers of the two Houses and the clerks thereof and was never presented to the Governor by that body. That the document attacked is a paper writing made by some unofficial person after the legislature adjourned, endorsed by the Speaker of the House and President of the Senate and other persons whose names appear thereon about the first hour of the second day after *343the legislature adjourned, brought to the Governor’s office by some person unofficially after the legislature adjourned and then signed by him, of which facts all of them, whose names appear upon the back of the enrolled bill, knew full well. And of these facts it is contended the court will take judicial knowledge and will inform itself by such means as lay within its power. That the facts alleged are matters of public knowledge, known generally throughout the State, will not be denied by the Governor nor any of the officers and clerks whose names appear upon the document, and are easily ascertainable by the simplest inquiry.
But what is a public record is a question of law. A public record is a written memorial made by a public officer and that officer must be authorized by law to make it. See Coleman v. Commonwealth, 25 Gratt. (Va.) 865; 2 Bouvier’s Law Dictionary 429; State v. Anderson, 30 La. Ann. 557; Black’s Law Dictionary.
A public record is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said or done. 23 R. C. L. 155; Robinson et al. v. Bishback, 175 Ind. 132, 93 N. E. Rep. 666, Ann. Cas. 1913B 1271; Bell v. Kendrick, 25 Fla. 778, 6 South. Rep. 868.
But it is argued that neither the Governor, the Speaker of the House, the President of the Senate nor the clerks of the two Houses were authorized by law to sign the document under the conditions under which they signed, and therefore they were pot authorized by law to make of the document a public record; that it is a document which, if genuine, is of legal efficacy, if not contradicted by the legislative journals, to vest in the Comptroller the power *344to collect the tax on gasoline, to do the thing which the bill of complaint alleges he is doing to the complainant’s injury, but that the officials named had no authority to make that document.
Now, as every one is presumed to know the law, the officials named are presumed to have known what their authority was under the law, but it is alleged that they nevertheless deliberately did that which they were not empowered by law to do, to the end that a public record should be made evidencing a power in the Comptroller to collect a tax upon a certain commodity.
This allegation comes very near, if it does not completely, charge the officials named with falsely making a public record. And the court, it is claimed, may take judicial knowledge of the facts to place this imputation of wrong doing upon the Governor and officers of the legislature. The court has no power to take judicial knowledge of a state of facts existing in pais that will destroy a public record and leave the public officers, whose duty it is to make records of the transactions of their offices, under suspicion of fraudulent conduct. The “enrolled bill” on file in the office of the Secretary of State has the form and requisites of an official act of the legislature. It possesses all the indicia of a public record made within the scope of the official’s power and such a record as they are required by the constitution to make and the Secretary of State to keep.
The Governor has no power to approve a document as a bill which has passed the legislature, unless it has been presented to him by that body with the signatures thereon of the presiding officers and clerks of the two Houses, yet he approved this bill and transmitted it to the. Secretary of State. It follows, therefore, that his signature at*345tached to such bill in approval is equivalent to certificate by him under oath that it reached his hand in due course. It is, therefore, a public record of a coordinate branch of the State government and the judicial branch has no power to adjudge it to have been made in a manner not in conformity with the rules and regulations of law in the absence of a specific and unequivocal charge of fraud on the part of the officials concerned, or the existence of some public record of equal dignity to show the abuse of authority or violation of law by them or the forgery of their signatures.
If they have in fact assumed power and undertaken to do an act not authorized by the constitution, the remedy is with the people who may evidence their distrust of them in the elections, but for the judiciary to assume the power of exercising a supervisory ascendency over the official acts of the executive, is to assert the superior, even supreme power of the judiciary over the other departments of government. The case is not analogous to one in which the court declares an act of the legislature to be contrary to the express limitations of the constitution and therefore void. A power unique in character and wholly American in its origin. That power involves the function of determining whether the expressed will of the legislature as evidenced by the record of legislative acts is superior in authority to the expressed will of the people as evidenced by the written constitution. The courts must determine which is the superior will. If the will of the people as expressed in the constitution is superior, then it follows that the will of the legislature in opposition to it must fail. See Marbury v. Madison, 1 Cranch 137 (U. S.).
But it would be a solecism to hold that a record of a leg*346islative act, an “enrolled bill” on file in tbe office of the Secretary of State appearing upon its face to be regularly authenticated and possessing all the indicia of regular and orderly legislative procedure is prima facie valid if there exist facts of which the court must take judicial notice showing it to be void. Yet this court has adopted the journal entry rule and thus far may be said to be guilty of the solecism, but it has not gone to the extent of holding that it will take judicial notice of matters resting in parol testimony to invalidate the record of the legislative act.
No record is required to be kept of the presentation to the Governor of a bill passed by the legislature, but in this case the Governor approved the bill and sent it to the Secretary- of State. That act carries with it the legal inference that -it was properly presented. It cannot be presumed that what appears to have been rightfully done was fraudulently done. -We must therefore hold that asa matter of law the “enrolled bill” now on file in the office of the Secretary of: State is a public record of an official act of the legislative department and being such may be impeached only by the legislative journals.
The. principle here announced is set. forth in the case of United States v. Arredondo, 6 Pet. 691, 8 U. S. (L. ED.). 547, in the following.words: “It is an universal principle that when power or jurisdiction is delegated to any public officer or tribunal over a subject matter, and its exercise is confided to his or their discretion, the acts so done are binding and.valid as to the subject matter and individual rights will not be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the a:cts .done.,and the public} .ór-any.'person denying, its valid*347ity, are power in the officer and fraud in the party. All other questions are settled by the decision made or the act done by the tribunal or officer, whether executive...... legislative......judicial......unless an appeal is provided for or other revision by some appellate or supervisory tribunal is prescribed by law. ’ ’
In the case of State ex rel. Crenshaw v. Joseph, 175 Ala. 579, 57 South. Rep. 942, the Supreme Court of that State, speaking through Mr. Justice Sayre said, “The rule here stated confines judicial knowledge to the record, where the record is authentic and complete in itself.”
The signing of the “last writing” on enrolled bill by the presiding officers of the two Houses and their respective clerks and presentation to the Governor is a duty imposed by the constitution upon the legislature which causes its officers to sign as an authentication of the writing as the bill which has passed, but a record of these acts is not required to be spread upon the journal. The absence of any such record therefore cannot be taken as evidence that these requirements were not observed. But on the other hand every reasonable presumption is to be taken in favor of the legislative compliance with the requirements of the constitution. See Mathis v. State, supra.
The Governor may not exercise his power of veto unless a bill is presented to him by the legislature, and as he may veto or approve only such bills as are passed by the legislature and presented to him by that body, the presumption exists that when he exercises the power of veto or approves the bill that it has reached him in the due and orderly course of legislative business. His action evidenced by his signature becomes a record of an official executive act, and carries with it the same implication of verity and rectitude of official conduct as the record of an official act *348of any other department of government. If there are no other executive records which may impeach the particular record the latter must stand.
The bill of complaint does not allege the existence of any other executive record that would contradict or explain the record of the Governor’s approval of the bill attacked, but relies upon facts which depend for proof upon oral testimony' or, as counsel asserted, upon judicial notice. But if the record of an official executive act imports verity, is prima facie evidence of regularity, it is a contradiction to say that the court will take judicial notice of facts existing in pais to contradict and impeach it. So, as Mr. Justice Sayre said in State v. Joseph, supra, judicial knowledge is confined to the record when an official act of the legislative or executive department is called in question.
The question in that ease was whether parol evidence would be received to show the point of time at which the presentation of a bill passed by the legislature was made to the Governor. The case was decided by a divided court, Messrs. Justice Simpson and McClellan dissenting, but the former seemed to be of the view that parol evidence was not admissible to contradict the record, but that records kept in the Governor’s office showing the dates when bills were presented to the Governor should have been admitted, he said, “These are not in the nature, of parol testimony, but constitute the official record of the history of the bill, through its various stages, until it becomes a law. ’ ’ Mr. Justice McClellan was of the same opinion upon that point, saying: “It has been suggested that a writing, to be a record and admissible in evidence, must be kept or made under statutory authority or command. Recourse to the highest authority on the subject demonstrates that such is not the law.” He then quotes as follows:’ “Although a *349book kept by a public officer is not required to be kept by ah.y statute, yet, if it is necessary or proper or convenient to tbe adequate discharge of his duties, it is an official book, and admissible as such to prove the facts therein stated. So entries or indorsements which are necessary to a proper discharge of official duty are competent, though not expressly authorized or required by law,” and cites the following authorities: 10 Ency. of Ev. pp. 716, 717 and notes thereon; White v. United States, 164 U. S. 100, 17 Sup. Ct. Rep. 38, 41 U. S. (L. Ed.) 365; 1 Greenleaf, 483-485; Evanston v. Gunn, 99 U. S. 660, 665, 25 U. S. (L. Ed.) 306; Jones on Ev. 508, 509.
With this doctrine as supported by the above authorities this court is in line. See Bell v. Kendrick, supra,. But that the court will take judicial knowledge of facts resting in parol testimony to “advise judicial knowledge” to the end that the presumption of regularity and legality of the transaction raised by the record may be overcome, is a doctrine the soundness of which the reasoning of Mr. Chief Justice Murray in Fowler v. Pierce, 2 Cal. 165, is not convincing. He said in that case, “If a court cannot resort to parol evidence in such cases (when the question is whether the courts may go behind the record itself to ascertain if the law was passed in conformity with the requirements of the constitution) the door to all inquiry is closed, as it is impossible, from the nature of the casé, to obtain any other evidence in most cases that may arise. ’ ’
But that argument assumes that an executive or legislative function is subject to judicial review in the matter of its appropriate or suitable exercise. The constitution, it is true, prescribes the manner in which the powers of legislation and executive action in connection therewith shall be exercised, and such regulations and requirements are *350mandatory, but no record of how they are performed, except in the matter of recording the yea and nay vote on tlie final passage of a bill, is required to be made. A record having been made of the legislative act and the executive act in connection with it, a presumption arises that the power was duly exercised so far as conformity to regulations and rules are concerned, and that presumption cannot be overcome by judicial notice of alleged facts showing otherwise, which is another way of saying that the record which imports verity is impeached by judicial notice that it is false.
The authorities cited in the able a,nd lengthy briefs of counsel cannot be each considered and criticised in this opinion. To do so would extend it to an unreasonable length, if that point has not already been reached, and it would be productive of no beneficial end. The authorities are seemingly in irreconcilable conflict, but such conflict is more apparent than real. They may be divided first into two classes, those which announce the “enrolled Bill rule” and those holding to the “Journal Entry rule.” Among the latter this court has taken its place.
There are those holding to the doctrine that judicial notice will be taken of facts in pais to impeach the implied verity of a record of a coordinate branch of the government, and then as if in explanation of how judicial knowledge can be taken of a fact that may be personally known by only one or two or perhaps six persons at the most, they say that the court’s “judicial knowledge may be advised” by the testimony of such persons. In other words, that any legislative act which was approved by the Governor after the legislature adjourned may be declared void by the court upon the testimony of 'one or two persons who would testify that the bill after passing the legislature and *351signing by the officers, was not presented to the Governor until after adjournment. • And if such active litigant should get his story into some sensation loving and scandal spreading newspaper, where it would probably never be contradicted, then the court might take judicial knowledge of the fact from public notoriety upon the general principle that “What is the law is a matter necessarily and in respect of finality of pronouncement committed for decision to the judicial department when properly invited to do so.” And that whether “constitutional requirements were in a particular instance observed is a question solvable alone by the court in the light of its satisfactorily advised judicial knowledge and so necessarily excluding the advice Or service of a jury in deciding it. ’ ’
We think that the better rule is as announced by the Alabama court in the able opinion of Mr. Justice Sayre that in such matters as those which involve the regularity of executive conduct and legislative action and conformity to prescribed rules mandatory in character even, “judicial knowledge is confined to the record "when the record is authentic and complete in itself. ” By the record is meant all official acts of the legislative and executive departments of which any written evidence was preserved as a memorial of the official acts and transactions of the office. They constitute public records of the two departments of government, and may be examined .by the court to “advise its judicial knowledge,’’ but it will not receive the testimony of-witnesses to contradict a record made by a coordinate branch of the government when in the making of such record the officers were acting under the sanction of their oaths to obey the requirements of the constitution. To such a record the rule of - conclusive preference applies as discussed by Mr. Wigmore. 2 Wigmore on Evidence, Sec. 1348.
*352There may .exist no such evidence of the alleged irregularities, the court will not take judicial knowledge of the existence of such record, although when brought to its attention it may take knowledge of it, but if the record evidence does not exist, it may be possible that the irregularities in the signing and approval of the bill cannot be shown. But, as Mr. Justice Frazer said in Evans v. Browne, 30 Ind. 514: “The framers of our government have not constituted it with faculties to supervise coordinate departments and correct or prevent abuses of their authority.” Again, “Human governments must repose confidence in officers. It may be abused, and there can be no remedy. Nor is there any great force in the argument which seems to be regarded as of weight by some American Courts, that some important provisions of the constitution would be a dead letter if inquiry may not be made by the courts beyond the rolls. This argument overlooks the fact that legislators are sworn to support the constitution, or else it assumes that they will wilfully violate that oath. It is neither modest nor just for judges thus to impeach the integrity of another department of government, and to claim that the judiciary only will be faithful to its obligations.”
Mr. Chief Justice Murray in Fowler v. Pierce, supra, seemed to fear that if the executive approval was forged, there would be no remedy to protect the people from this imposition, but the answer to that argument is, the court will take judicial notice of the signature of the Governor. See 7 Enc. of Ev. p. 981 and note.
The arguments against conelusiveness of the record in questions involving the orderly passage of a bill through the legislature are reducible, says Mr. Wigmore, to three: 1st, That the enrollment is not a record; 2nd, Political pol*353icy, there is danger of error and fraud; and 3rd, Constitutional necessity. Which he says is the one most frequently pressed and the.one really responsible for almost all of the decisions against conclusiveness. But it seems after all to be a spectral scruple, created by a false logic.
It consists, says the learned writer, in the notion that every constitutional provision is per se capable of being enforced through the judiciary and must be safeguarded by the judiciary because it can be in no other way. Yet there is certainly a large field of constitutional provisions which do not come before the judiciary for enforcement and may remain uninf orced without any possibility of judicial remedy. After citing many instances, he proceeds: “That situation exists where the constitution enjoins duties which affect the motives, and judgments of a peculiar, independent department of government. Legislative, executive and judiciary, such duties are simply beyond enforcement by any other department if the one charged fails to perform them.” “The truth is that many have been carried away with the righteous desire to check at any cost the misdoings of legislatures. They have set such stores by the judiciary for this purpose that they have almost made .them a second higher legislature. But they aim in the wrong direction. Instead of trusting a faithful judiciary to check an evil legislature they should, turn to .reform the legislature. ”
The bill of complaint does not allege the existence of ;an executive record that would reveal the alleged abuse of executive and legislative powers.and the.court will not take judicial knowledge of its existence nor receive parol.evidence to establish it, which would certainly bring about the chaotic condition described by Mr. Justice. Irvine, in Webster v. City of Hastings, 56 Neb. 669, 77 N. W. Rep. 127. *354The proposition involved in this case ‘ ‘ does not relate to the capacity to pronounce a law which is admitted to have been enacted, void, by reason of its unconstitutionality. That is clearly a function of judicature. But the proposition is, whether, when the legislature” (or the Governor acting in a legislative capacity) “has certified to a mere matter of fact, relating to its own conduct and within its own cognizance, the courts of the State are at liberty to inquire into or dispute the veracity of that certificate, ’ ’ by taking testimony of witnesses upon the subject. Pangborn et al. v. Young, 32 N. J. L. 29.
The power of the Governor to certify to the approval of a law, enacted by the legislature and presented to him for consideration, is one of the trusts of the constitution. That he has done so in this case the record shows. And unless it appears by an executive record of equal dignity that his approval was an error or mistake the law must stand so far as the first attack made upon it is concerned.
In the investigation of this question we have examined many decisions and text books and have had the aid of briefs of able counsel, but among all the decisions and text books we have not discovered a case nor a passage in any text book discussing the exact point presented here; the failure of the legislature to present a “bill” duly passed to the Governor, where under a constitution like ours a bill duly passed does not become a law until presented to the Governor.
The case of Monroe v. Green, 71 Ark. 76 S. W. Rep. 199; cited in the brief of appellee’s counsel is not exactly in point because the constitution of Arkansas did not provide that every bill passed, before becoming a law, should be presented to :the Governor, which clause in our constitution,'the *355majority of the court construe to mean presented by the legislature before adjournment. In which view a majority .of this court agree with the view expressed by Mi\ Chief Justice Bunn in his dissenting opinion in the above case.
So far as we have discovered it is the first time in the history of this Republic that officers of the legislature and the Governor have, as alleged in the bill of complaint, agreed among themselves to make an executive and legislative record of a transaction that never occurred. We do not mean to say that the books do not record a similar transaction. We have not found it. So the case seems to be sui generis and the cases cited in the briefs therefore are not very helpful, because not analogous.
In the Fowler-Pierce case, supra, which was overruled by Sherman v. Story, 30 Cal. 256, the bill was admittedly pre: sented by the legislature, but the point was that the Governor had signed it after the adjournment of the legislature and his approval never reported to either House. It was held in that case that this y;as admissible to disprove the official act. To that extent the view's expressed in this opinion are in line with the views expressed by the. Calif or r nia Court speaking through'Mr. Chief Justice Murray. •
The signature of the Governor to the bill is the record of an executive act in which the executive acted in a legislative capacity, says this court in State v. Deal, 24 Fla. 293, 4 South. Rep. 899, and Advisory Opinion, 23 Fla. 297, 6 South. Rep. 925. That record, in so far ás it relates to the Governor’s power or authority to make it, is prima facie valid and imports verity and is unimpeachable except by an executive record, of equal dignity. In annopueing this doctrine we apply, by analogy the Journal Entry rule, that is to say as an enrolled bill, in the Secretary of State’s office being the record of an official, act of the legislature *356may be impeached only by the legislative journals, so the record of the executive official act may be impeached only by an executive record of equal dignity.
As to the matter of judicial notice of facts in pais to impeach the record, it would be profitless to discuss it. There is no rule of judicial notice to fit all conditions and every situation as it arises, but there is a distinction which counsel do not make in their briefs, that is between things of w'hich the court should take judicial notice and things of which it may take judicial notice. We are convinced that the allegations of fact in the bill of complaint do’ not come under the first classification and we are equally sure that they do not fall under the latter. Nor will parol evidence be received to impeach the record. State v. Smith, 44 Ohio St. 348 7 N. E. Rep. 447. Nor will the invalidity of the statute be proved by the admissions of the parties. Happel et al. v. Brethauer, 70 Ill. 167; Attorney General v. Rice, 64 Mich. 385, 31 N. W. Rep. 203.
In Stevenson v. Colgan, 91 Cal. 649, 27 Pac. Rep. 1089, 14 L. R. A. 459, Mr. Justice De Haven, speaking for the court, said: “When the right to enact a law depends upon the existence of facts, it is the duty of the legislature, before passing the bill, and of the governor before approving it, to become satisfied in some appropriate way that the facts exist, and no* authority is conferred upon the courts to hear evidence, and determine, as a question of fact, whether these co-ordinate departments of the state government have properly discharged such duty. ’ ’
Many cases hold that parol evidence or other extrinsic evidence is inadmissible to show that an enrolled bill was not approved by the Governor within the time limited by the constitution, nor to show disregard of a constitutional *357mandate in its passage, nor to alter the recital of the journal, nor that it was not approved by the Governor at all. See State ex rel. Crenshaw et al. v. Joseph et al., supra; Bloomfield v. Board of Chosen Freeholders of Middlesex Co., 74 N. J. L. 261, 65 Atl. Rep. 890; People v. Clayton, 5 Utah 598, 18 Pac. Rep. 628; Capito v. Topping, 65 W. Va 587, 64 S. E. Rep. 845, 22 L. R. A. (N. S.) 1089; Gibson v. Anderson, 65 C. C. A. 277, 131 Fed. Rep. 39; Jackson v. State, 131 Ala. 21, 31 South. Rep. 380; Anderson v. The People, 33 Colo.793, 79 Pac. Rep. 1031, 108 Am.St.Reports 76; Koehler v. Hill, 60 Iowa 543, 14 N. W. Rep. 738; Berry v. Balt. & Drum Point R. R. Co., 41 Md. 446; Auditor General v. Board of Sup’rs. of Menominee Co., 89 Mich. 552, 51 N. W. Rep. 483; Attorney General v. Rice, supra; Wilson v. Markley, 133 N. C. 616, 45 S. E. Rep. 1023.
As to the second point of attack upon the bill, which attacks it as an invalid exercise of legislative power. It is contended that the Act, Chapter 8411 Laws 1921, imposes an ‘ ‘ excise on sales tax in addition to the license tax. ’ ’
The first section of the Act is as follows: “Section 1. Every dealer in gasoline, or other like products of petroleum under whatever name designated, used for illuminating, heating, cooking, or power purposes, in this State shall pay a license tax of Five ($5.00) Dollars for each place of business and in addition thereto one cent per gallon for every gallon of gasoline, or other like products of petroleum sold by him for the purposes aforsaid. Said license tax of Five ($5.00) Dollars shall be paid to the Comptroller who shall issue to the licensee a receipt of certificate evidencing the payment of the said fees. Said receipt or certificate shall be posted or displayed and so kept at all times open to the public view at the place of business for which the same is issued. The license tax of one cent per gallon on gasoline, *358or other like products of petroleum shall be paid to the Comptroller monthly in the following manner. On or before the 5th day of each month the dealer shall report under oath to the Comptroller the number of gallons of such products sold by him during the preceding month and shall at the same time pay to the Comptroller the amount of license tax above mentioned. ’ ’
The section requires every dealer in gasoline to pay a license tax of five dollars for each place of business “and in addition thereto one cent per gallon for every gallon of gasoline, or other like products of petroleum sold by him for the purposes aforesaid. ’ ’
Art. IX, Sect. 1 of the Constitution is as follows: ‘ ‘ Section 1. The Legislature shall provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious or charitable purposes.”
■ Article IX, Sect. 5 is as follows: ‘ ‘ The Legislature may also provide for1 levying a special capitation tax, and a tax on licenses. ’ ’
In the case of Afro-American Industrial & Benefit Ass’n of the United States v. State, 61 Fla. 85, 54 South. Rep. 393, the court held that under the above quoted sections of the constitution only two classes of taxes can be levied in this State, an advaloren tax and a tax on licenses.
It is argued that the tax imposed by the Act in question of one cent per gallon on gasoline, is neither an advalorem tax nor a tax on licenses. That neither the tax of five dollars, nor the tax of one cent per gallon on gasoline is *359valid, because if it is regarded as a license tax it vitiates Section 17 of Article Y of the Constitution which provides that the County Judge “shall issue all licenses required by law to be issued in the county. ’ ’ But the Act requires.the licenses to be issued by the Comptroller. A license tax imposed by the legislature for the use of motor vehicles on the public roads in the State and required to be paid to the “Tax Collector” of the several counties of the State does not conflict with the mandate of Section 17, Article V of the Constitution, See Jackson v. Neff, 64 Fla. 326, 60 South, Rep. 350.
In that case it was said that the tax imposed by the Act, Chapter 6212, Laws of 1911, is manifestly for the privilege of using motor driven vehicles on the public roads of the State and that it was applicable alike to all owners or operators of such vehicles. That a license tax may be imposed by the legislature for the use of such vehicles on the public roads, as it was the duty of the counties to keep the roads in good condition. Yet, the license tax imposed by that Act was required to be issued in the counties. But the license tax imposed by Chapter 8411, Acts 1921, does not require the license to be issued in the counties. Upon that ground this court has held that the clause of the constitution referred to, Section 17 of Article Y, is not applicable. See Ex Parte Gilletti, 70 Fla. 442, 70 South. Rep. 446.
That the Act imposes a tax of five dollars for each place of business and one cent per gallon on gasoline sold, is not objectionable, as double taxation. Both exactions amount to one license tax. See Pullman Co. v. Knott, 70 Fla. 9, 69 South. Rep. 703; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 South, Rep. 398.
*360The objection that the tax of one cent per gallon is an “Excise tax” and- therefore not within the two classifications of advalorem and license taxes, is not sound, because an “excise” tax .is one laid on licenses to pursue certain occupations, corporate- privileges or sales or consumption of commodities. See Cooley’s Constitutional Limitations 7 Edition 680; Flint v. Stone Tracy Co., 220 U. S. 107, 31 Sup. Ct. Rep. 342; Thomas v. United States, 192 U. S. 363, 24 Sup. Ct. Rep. 305; Nicol v. Ames, 173 U. S. 509, 19 Sup, Ct. Rep. 522; Maine v. Grand Truck Ry. Co., 142 U. S. 217, 12 Sup. Ct. Rep. 121.
An excise tax partakes of the nature of a license tax. See Pullman Co. v. Knott, supra; Wagner v. Covington, 251 U. S. 95, 64 L. Ed. 157, 40 Sup. Ct. Rep. 93; 17 R. C. L. 518.
A tax of one cent a gallon on sales of products within the State after they have lost their interestate character is an excise tax which- is in effect a license tax; and the lawmaking power of the State may impose excise or license taxes within its discretion unless restrained by organic or paramount provisions of law. See Peninsular Industrial Ins. Co. v. State, supra; Pullman Co. v. Comptroller of State of Florida, 235 U. S. 23, 35 Sup. Ct. Rep. 2; Southwestern Oil Co. v. State of Texas, 217 U. S. 114, 30 Sup. Ct. Rep. 496; Johnson v. Armour, 31 Fla. 413, 12 South. Rep. 842; Peninsular Casaulty Co. v. State, 68 Fla. 411, 67 South. Rep. 165.
Section 5 of Article IX of the State Constitution which provides that ‘ ‘ The Legislature may provide for ... a tax oh licenses” is not a limitation upon the inherent-power of the legislature to'impose excise, occupational or other taxes that are in the nature of license or privilege taxes.- It is an express declaration of a power that exists in the legisla*361ture. See State ex rel. Railroad Com’rs v. Florida East Coast R. Co., 57 Fla. 522, 49 South. Rep. 43.
The State and Federal Constitutions and Federal laws and treaties contain no limitation upon the power of the State legislature to impose license taxes within its jurisdiction except that due process, equal protection and contract rights shall be observed, and interstate commerce shall not be burdened or the exercise of Federal power interfered with. See Ferguson v. McDonald, 66 Fla. 494, 63 South. Rep. 915.
The title of Chapter 8411 is an act imposing “license taxes upon dealers in gasoline, or other like products of petroleum; providing for reports of sales of such commodities to the Comptroller, ’ ’ &e. In the body of the Act both the one cent a gallon sales tax and the $5.00 tax for each place of business in the State is denominated á “license tax.” The title of the act covers “license taxes,” and is not deficient or misleading. State ex rel. v. Allen, decided at this term.
As the excise tax of one cent a gallon is “in addition” to the tax of $5.00 for each place of business in the State, it is in the nature of a license or privilege or occupational tax and is a part of the plural “license taxes” referred to in the title and in the body of the Act. Pullman Co. v. Knott, supra; Peninsular Industrial Ins. Co. v. State, supra.
The taxes imposed by Chapter 8411 accord with due process, do not deny equal protection of the laws or impair the obligation of contracts or interfere with interstate commerce, or with the exercise of any Federal-power. The one- cent a gallon tax is by its- own terms merely-a tax on only the first intrastate sale^after-the product “.has-lost its interstate character.” It is imposed by a duly enacted *362statute, applies to all alike under similar conditions, does not interfere with any contract right, and can in no way burden interstate commerce or interfere with Federal authority. The fact that none of the products is produced in the State does not make the intrastate license.or excise tax discriminate against the producing States. Bowman v. Continental Oil Co., 256 U. S. 642, decided June 6, 1921; Askren v. Continental Oil Co., 252 U. S. 444, 64 L. Ed. 654, 40 Sup. Ct. Rep. 355.
It is insisted that the tax of one cent per gallon upon the gasoline or other like products of petroleum sold by the dealer is an import tax upon interstate commerce. But the language of the Act shows it to be a tax upon each gallon sold after it has been divested of its interstate character. It is a tax affecting internal commerce only and not analogous to those statutes involved in Western Oil Refining Co. v. Lipscomb, 244 U. S. 346, 61 L. Ed. 1181, or Crew Levick Company v. Pennsylvania, 245 U. S. 292, 62 L. Ed. 295, or Eureka Pipe Line Co. v. Hallanan, (Sup. Ct. U. S. decided December 12, 1921.
The statute does not tax a commodity shipped in bulk into this State and afterwards delivered in barrels or casks to the purchasers who bought in other States from which it came and received delivery in smaller quantities than the bulk received by the distributing agent, nor is it a tax upon the business of carrying on interstate commerce. The tax is levied upon the gasoline in the hands of any person engaged in the business of selling the commodity at wholesale in this State after it has been divested of its interstate character. “Gasoline imported by the distributor from another State but used in the conduct of its business loses its interstate character and may be sub*363jeeted to the excise” tax imposed by the State. See Bowman v. Continental Oil Co., supra.
No arbitrary, unjust or oppressive discrimination appears even if sales for all purposes are not covered by the tax (Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 South. Rep. 398; Southwestern Oil Co. v. State of Texas, 217 U. S. 114, 30 Sup. Ct. Rep. 496; Hatch, People of State of New York ex rel. v. Reardon, 204 U. S. 152, 27 Sup. Ct. Rep. 188), and the penalties provided for are manifestly not excessive (16 C. J. 1358; East v. VanDeman & Lewis Co., 240 U. S. 342, 36 Sup. Ct. Rep. 370); nor is the act void for uncertainty (1 Lewis’ Sutherland Stat. Const. 2nd ed. 86; Peninsular Industrial Ins. Co. v. State, 61 Fla. 376, 55 South. Rep. 398.) The fact that the one cent a gallon sales tax increases the price paid by consumers does not render the tax invalid, even though consumers use motor boats and not the public roads, to which latter the license taxes are applied.
The fact that the $5.00 license tax for each place of business was not payable until October, 1921, while the tax of one cent per gallon on sales was made payable before October, 1921, does not affect the validity of the Act. This was a matter of legislative discretion. Pullman Co. v. Knott, supra; Pullman Co. v. Knott, 235 U. S. 23, 35 Sup. Ct. Rep. 2.
The discretionary power of the lawmaking department to impose fines to redress wrongs done, is limited only by the organic provisions requiring due process and equal protection of the laws to be observed and forbidding excessive fines to be imposed. Fines may be excessive within the prohibitions of the constitution when they are so great or numerous as to shock the conscience of reasonable men, or *364are patently and unreasonably harsh or oppressive as penalties for the wrongs sought to be redressed, or so great or numerous as to intimidate persons in asserting their rights to test the validity of laws or regulations which they may be required to observe, and thereby to deny due process and equal protection of the laws. See Ex Parte Young, 209 U. S. 123, 28 Sup. Ct. Rep. 441; Florida East Coast Ry. Co. v. State, 79 Fla. 66, 83 South, Rep. 708.
There being no definitely fixed rules or standards for determining what are and what are not excessive fines, each case whether a statute prescribing fines oí a judgment imposing a fine under a statute, must be adjudged on its merits (Frese v. State. 23 Fla. 267, 2 South. Rep. 1; Waters Pierce Oil Co. v. State of Texas, 212 U. S. 86. 29 Sup. Ct. Rep. 220) and the courts will not declare a statutory fine to be excessive in violation of the constitution unless it is plainly and undoubtedly in excess of any reasonable requirements for redressing thq wrong. See 16 C. J. 1358; Kincaid v. Jackson, 66 Fla. 378, 63 South. Rep. 706; Baeumel v. State, 26 Fla. 71, 7 South. Rep. 371; Weems v. United States, 217 U. S. 349, 30 Sup. Ct. Rep. 544.
In the statute here considered the penalty prescribed for a first offense in violating its provisions is as for a misdemeanor not otherwise provided for, viz, a fine not exceeding $200.00 or imprisonment not exceeding 90 days, or both. Sec. 5005 Rev. Gen. Stats; And for a second or further offense a fine of not less than $500.00, nor more than $5,000.00. This is not .manifestly or clearly an excessive penalty.
The provisions of Section 2 of the Act conferring upon the Comptroller, a constitutional State officer, authority to ascertain and to enforce amounts that may become due under” the státiité, are obviously reasonable and appropriate *365regulations to make the Act effective as in .other somewhat similar cases. Pullman Co. v. Knott, supra. Even if the authority conferred by Section 6 upon the Comptroller in his discretion to revoke licenses issued by him under the Act, may be regarded as arbitrary and for that or any .other reason invalid, such provisions may be eliminated without destroying the efficacy of the Act for the purposes designed.
We do not decide the question presented by the Attorney General, that the suit is in effect one against the State to enjoin the enforcement of one of its laws, nor that the complainant has not shown any peculiar injury to himself by reason of the enforcement of the law and has brought his case under no acknowledged head of equity jurisdiction. It being unnecessary to determine those questions at the present time in view of the conclusion at which we have arrived as to the attack made on the Act.
, Concurrence of Mr. Justice Whitfield and Mr. Justice West in this opinion on the rehearing should not be considered as a modification of the views expressed by them in the dissent from the original opinion, since the language employed in this opinion on rehearing is intended to be¡ so limited as to express the views of the writer thereof, or of the majority of the court upon the points discussed in the first opinion.
From what has been said it follows that the order appealed from should be reversed. It is so ordered and the cause remanded with directions to dismiss the bill, unless the complainant amends his bill within fifteen days after the receipt by the clerk of the circuit court of the mandate.
Whitfield .and West, J. J., concur. *366Browne, C. J., and Taylor, J., concur in part and dissent in part.