concurring in part and dissenting in part.
I concur in so much of the opinion in this case as holds that the constitution requires all bills to be signed by the presiding officers of the two houses and the Secretary of the Senate and the Clerk of the House of Representatives during the legislative session; that such bills when so signed must be presented to the Governor by the legislature before adjournment; that this, like all other provisions of the constitution, is mandatory, and that bills signed by the presiding officers of the respective houses and by the Secretary of the Senate and the Clerk of the House of Representatives, or that are presented to the Governor, after the adjournment of the legislature, have not been enacted ■in accordance with the essential requirements of the constitution, and are invalid, inoperative and void.
I concur also in that part of the opinion that holds that the subject-matter of House Bill No. 702, published as Chapter 8411, Laws of Florida, Acts of 1921, comes within the legislative power, and is not in conflict with the constitution of the State of Florida, or of United States, upon any of the grounds of attack made in the. bill of complaint.
*387I dissent, however, from that part of the opinion that holds that when the - presiding officers of the Senate and House of Representatives and the Secretary of the Senate and the Clerk of the House of Representatives sign a bill after the legislature adjourns sine die, in violation of constitutional mandates, and the bill is delivered to the-Governor after such adjournment of the legislature and filed in the office of the Secretary of State, that the testimony of the President and Secretary of the Senate, and the Speaker and Chief Clerk of the House of Represen1 tatives cannot be introduced for the purpose of proving the date when the bill was signed and when it was delivered to the Governor.
This court is advised by a sworn bill of complaint that House Bill No. 702 was signed by the presiding officers of the -respectives houses of the legislature, arid the Secretary of the Senate and the Clerk of the House of Representatives after the legislature had adjourned sine die.
Whatever impression may have prevailed as to the right of these officers to sign a bill after adjournment of the legislature, the main opinion in this case concurred in by the majority of the court, is that they had no authority to sign a bill after adjournment of the legislature sioie die; arid that is re-affirmed by this decision on this rehearing.
Mr. Justice Ellis in his opinion on the petition for rehearing emphasized it in this language: “Tt seems to the writer that to hold these provisions of the orgariic law to be directory, that the signing of the bills passed may be done after the legislature has adjourned sme die and cannot reassemble except upon call by the Governor under the constitutional provisions for calling extraordinary sessions, that after such adjournment the bil-1 may be enrolled and the-signatures-of the officérs written upon a bldnk *388sheet 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 by 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 procedure?”
It being the law of this case, that an act of the legislature that has otherwise regularly passed the two houses, but to which the signatures of the Clerk of the House of Representatives and the Secretary of the Senate, and the presiding officers of these two bodies were not affixed until after the legislature adjourned sine die, is not a law, is inoperative and void, the question presents itself, is there any way in which this court can enforce the mandates of the constitution in these respects, or is this court pbwerless to remedy' the wrong ? The decision of this court is that it is powerless; and it bases its conclusion upon a mere rule of evidence. From this, I dissent.
This raises the question, is it more important to preserve rules of evidence in all their rigidity, than to enforce and require the observance of constitutional mandates?
The doctrine of this case is that when the presiding officers of the Senate and House of Representatives and the Secretary of the Senate and the Clerk of the House of Representatives, contrary to constitutional mandates, sign a bill after the adjournment of the legislature, and the bill is subsequently signed by the Governor and filed in the office of the Secretary of State, that the rules of evi*389dence prevent the truth from- being established by the testimony of these officers themselves. In other words, that these persons having signed a bill and it being essential to its validity as a law that the court ascertain on what day they signed it, they cannot be called upon to establish that fact.
Rules of evidence, except in the few instances of statutory regulation, originate in — are created by — the courts, and by them have been modified, extended, restricted and enlarged from time to time as the exigencies of justice and the ascertainment of truth require. Their sole purpose is to elicit and establish truth. “But to exclude relevant evidence by any positive and arbitrary rule must be not only absurd in a scientific view, but what is worse, frequently productive of absolute injustice. It may safely be laid down that the less the process of inquiry is fettered by rules and restraints, founded on supposed considerations of policy and convenience, the more certain and efficacious will it be in its operation. Formerly the very means devised for the discovery of truth and advancement of justice were not unfrequently perverted to the purposes of injustice, and made the instruments of the most grievour and cruel oppression.” 10 R. C. L. 861.
Writers on evidence furnish abundant instances where strict rules of evidence have been modified or exceptions made to them by the courts in searching for the truth. Here are but a few: ‘ ‘ Generally speaking, the existence of a fact cannot be proved by reputation or notoriety. But on inquiring into the truth of facts which happened a long time ago, the courts have varied from the strict rules of evidence applicable to facts of the same description happening in modern times, because of the difficulty or impossibility, by lapse of time, of proving those facts in dhe ordinary way, by living witnesses.” 10 R. C. L. 961.'
*390“According to the early rule traditionary evidence may be admissible in relation to the boundaries of parishes, manors, and the like, which are of public interest, and generally of remote antiquity, but it is inadmissible for the purpose of proving the boundary of a private estate when not identical with one of a public nature. Many courts, however, now hold that traditional evidence is admissible to prove private boundaries. ” Ibid. 963.
“Such evidence is admitted because it is the best the nature of the case admits; and because greater evils are apprehended from the rejection of such evidence than from its admission, the law has relaxed the general rules, and allowed the exception.” Ibid. 963.
“The courts recognize the difficulty of laying down upon this subject a rule that may be applied to every case. The tendency of recent adjudications is to extend rather than to narrow the scope of the' introduction of evidence as the res gestae. ” Ibid. 975:
These are but a few instances, where courts have modified and made, exception to rules of evidence in order to arrive at the truth and do justice; but in none of them was the necessity for arriving at the truth, of such transcendent importance as in the instant case.
. In the case of Blackwell v. State, 79 Fla. 709, 86 Sonth. Rep. 224, the majority of this court sanctioned the practice of enlarging rules of evidence to meet new conditions, and said: “ In the earlier days the testimony of a witness given at a former trial was confined to cases where the witness was dead, or had become insane, or beyond the seas or.-^he jurisdiction of the court; btvt the tendency of the modern decisions has been to'enlarge the rule of evidence as to the admission of such .testimony.”
*391In the same case this court cited approvingly from a case note in State v. Hefferman, 22 S. D. 513, 118 N. W. Rep. 1027, 25 L. R. A. (N. S.) 868, as follows: “This latter view is taken by an overwhelming majority of the courts, but the real basis for the admission of such testimony. seems to be the necessity from its admission to prevent the miscarriage of justice, and the instances in which it is admitted are in reality exceptions to (sometimes recognized as such by the court), rather than in compliance with the rule that the accused is to be confronted with the witnesses against him. ’ ’
Thus recognizing that testimony otherwise or theretofore inadmissible, should be admitted when it will prevent the miscarriage of justice. (The italics in the citations, supra, are mine.)
In the Blackwell case, supra, this court cited approvingly from Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. Rep. 337, as follows: “But general rules of law of this kind, however beneficial in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. ’ ’
The great Lord Ellenborough in the interest of truth and justice, allowed testimony to be introduced contrary to then existing rules of evidence, and as a warrant for his ruling, called attention to prior innovations when justice and truth so required, in this language: “The rules of evidence must expand according to the exigencies of society. I remember the innovation of receiving evidence of the handwriting of attesting witnesses abroad, to prove the execution of deeds. This entry, I think, is reasonable evidence to prove the contents of the letter of lSth^December, 1807, which the defendants acknowledge they received, and which they do not produce upon a notice for *392that purpose. We know that it is the habit of merchants to keep such a book; and a witness has sworn that the book in question was .kept with great punctuality. Therefore, if the entry in Forbe's handwriting were not admitted, there would be no way in which the most careful merchant could prove the contents of á letter after the death of his entering clerk. It will therefore allow the entry to be read as prima facie evidence, and the defendants may rebut it by producing the original.” Pritt and Others v. Fairclough and Others, 3 Camp. Nisi Prius Reports, 305.
The rules of evidence as they exist today are no more inflexible than they were when Lord Ellenborough held that they “must expand according to the exigencies of society.”
If, as was said by the Supreme Court of the United States in the Forbes Pioneer Boat Line v. Commissioners of Everglades District, decided April 10, 1922, that “constitutional principles must leave some play to the joints of the machine,” it seems most reasonable that rules of evidence Umust leave some play to the joints of the machine.”
How insignificant are the instances when courts have considered it advisable to change, modify, extend, enlarge and make exceptions to, rules of evidence as compared with the exigencies of the instant case! Here is no mere question of proving an account in a civil action — no mere punishment of a culprit — but a great and fundamental question, going to the very heart of constitutional government, and the constitutional enactment of laws, affecting the rights, of property and personal liberty.
. If the old rules of evidence established by the courts themselves to meet old conditions are inadequate to meet new conditions and remely new evils, then the rules of evidence should be changed or modified, or exception made to them, to meet- the new conditions and prevent new evils.
*393So far, I have discussed this question upon the hypothesis that a well settled rule of evidence prevents this court from ascertaining the truth, and deciding the ease in accordance therewith. I am not satisfied, however, that there is any well established rule of evidence that prevents this court from receiving evidence to establish the time when an act took place, when the truth with regard to the date is escential to the validity of what purports to be a law. The statute of frauds does not apply; there is no statutory rule of evidence that closes the door of this court to the truth; and there are no decisions of courts of last resort where this question has been decided adversely to the power < f the courts to take evidence of the date of an event, when that date becomes essential to the enforcement of constitutional mandates. It is conceded in the opinion of the majority of the court, that no case has been found that is exactly in point. Says the opinion: “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. * * 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.”
*394- We are, therefore, confronted with a situation that so for as we can find has never arisen before.
What has been said by this and 'other courts about “reference to the legislative journals,” is beside the question in this case and in no way applies; it being alleged that the challenged acts were done at a time when no legislative journal was kept.
The unconstitutionality of the act under consideration is based upon acts of -legislative officers, which the sworn bill charges were done after the legislature adjourned sine die.
The legislative journals record only what transpires while the legislature is in session and not after its adjournment, and the lengthy discussion and array of authorities cited in the brief of the Attorney General to establish the proposition — that in order to ascertain if certain acts were done by certain officers after the legislature adjourned and when no journal was kept, we must “look to the ■journal,” and if we fail to find anything therein showing that these acts were done by those officers after the journal had ceased to be kept, we must assume that they were done during the legislative session — are of no avail.
■ As well look in a World Almanac of 1913 to ascertain when was was declared between Germany and Russia in 1914, as to look to a journal that ceased to be kept on June 3rd, to find out what happened outside the legislative halls on June 4th.
The law is settled in Florida, by numerous decisions of. this court that a paper purporting to be an enrolled bill is. not conclusive evidence of its own validity, or of its contents, but that it may be disproved by proper evidence.
*395It is true that heretofore this court has had recourse only to the journals to establish the invalidity of an act, but that is because the journals afford proof of the fact and not because of any special sanctity of the journal.
A new question, however, is presented in this case, where acts that determined the invalidity of the law, were done after the adjournment of the legislature, and of which the journals could not afford any proof.
In this new situation the court should advance another step in the interest of truth' and the constitutional enactment of laws, and say that it will admit the testimony of the officers whose function and duty it was to sign the bill, to establish the date when it was signed, when such date becomes essential to the validity of the act.
The Attorney General in a very comprehensive brief contends that the cases cited by the appellee do not apply because of the different circumstances, conditions and facts, in those cases and the one at bar.
Accepting that as a proper rule in determining the effect of decisions of courts, no such direful consequences as pictured by the Attorney General would follow the decision in this case if we were to hold that where it is charged that the President and Secretary of the Senate and Speaker and Clerk of the House of Representatives did not sign a bill until after the adjournment of the legislature, and it became material to establish the truth of that allegation in order to determine the validity of the law, the court would receive the testimony of these officials, because this decision would be authority only where the facts and circumstances were the same.
I cannot agree with the conclusion reached by the majority of the court as to the effect of the signing of the *396bill by the Governor. I do not regard his signature as certifying or purporting to. certify anything except .that he.'.approved the bill on June-10,' 1921.
The opinion says: “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 attached to such bill in approval is equivalent to a certificate by him under oath that it reached his hand in due course; ’ ’ meaning that the Governor by signing the bill did that which is ‘ ‘ equivalent to a certificate by him under oath,” that it reached his hand before the adjournment of the legislature with the signatures of the President of the Senate and the Speaker of the House attached thereto before such adjournment. This is placing upon the act of the Governor in signing the bill, a construction that it is extremely doubtful was contemplated by him, and which he no doubt would disclaim if given an opportunity.
This of itself would seem to be of sufficient gravity, to warrant the admission of parol evidence, so that the Governor will not be put in the attitude of having done something that “is equivalent to a certificate by him under oath”,.of .a condition of facts', which, under the allegations of the’ bill does not exist.
■ In discussing the power of this court to receive the testimony of officials as to the date when they performed certain official acts, the opinion in this case says: “For the judiciary to -assume the power of exercising a supervisory aseéndency over the official acts of the executive, is • to *397assert the superior, even supreme power of the judiciary over the other departments of government.” :':i;
This is the same argument that was used against the power of the courts to declare Act.s of Congress unconstitutional, and which led Mr. Thomas Jefferson after the decision in Marbury v. Madison, to write to Mr. Adams, ‘‘The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch.” Beveridge’s Life of John Marshall, Vol. 3, p. 144.
President Jackson made the same contention in his message to Congress on July 10, 1832, vetoing the National Bank Act, where he said: ‘ ‘ The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will sup - port it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon: the constitutionality of any bill or resolution which may b& presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both, the authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.” Richardson’s Messages and Papers of Presidents, Vol. 2, p. 582.
*398Notwithstanding these views, the law is settled otherwise, and the power of courts to declare void, acts of the legislature not enacted according to all the requirements of the Constitution, are seldom questioned, and the duty to do so should be unflinchingly performed.
The pre-eminent question involved in this case, as I see it, and which I have attempted to discuss, is, are rules of .evidence more sacred than constitutional mandates 1 When therefore the situation is presented as in this case, where hither the Constitution shall be violated, or rules of evidence modified or extended, I favor the extension of the xules of evidence to preserve the Constitution.
Having reached the conclusion that it is competent to prove by the testimony of the presiding officers of the Senate and the House of Representatives, the date when they signed the bill, it follows that for the purpose of deciding the legal question involved, the demurrer admits the allegations of the bill of complaint that House Bill No. 702 was not signed until June 4, 1921, the day after the legislature adjourned sine die, and that the order of the Circuit .Judge overruling the demurrer should be affirmed.
Taylor, J., concurs.