State Ex Rel. Landis v. Thompson

This case is before us on demurrer to amended return and motion for a writ of ouster, the return to the contrary notwithstanding, after opinion and judgment rendered herein on September 18th, 1935, reported 163 So. 270, in which the judgment was that we sustained the demurrer with leave to amend respondent's return in particulars not inconsistent with the holdings of that opinion.

We hold the allegations of the return to be inconsistent with the opinion referred to in that it is sought in this return to collaterally attack the contents of what appears on its face to be the legislative journals in which are recorded the proceedings of the Legislature of Florida.

In Amos v. Gunn, et al., 84 Fla. 285, 94 So. 615, we said:

"An allegation in a bill of complaint attacking the validity of an Act of the Legislature that a certain document on file in the office of the Secretary of State purporting to be an official Act of the Legislature and purporting to be duly enrolled and signed by the presiding officers of the two Houses of the Legislature and their respective clerks and duly approved by the Governor, is not in fact an Act of the Legislature because it was never presented by that body to the Governor, nor signed by the presiding officers and clerks of the two Houses of the Legislature while that body was in session, is not susceptible of proof by parol evidence or other means aliunde the legislative journals or other public records in the office of the Governor or Secretary of State. And such allegation, standing alone, which does not also affirm the existence of a public record in the office of the Governor or Secretary of State which shows the alleged defects to exist is not admitted by demurrer to the bill of complaint." *Page 564

"A document on file in the office of the Secretary of State, purporting to be an enrolled bill duly passed by the Legislature and duly signed by the presiding officers and clerks of the two Houses of the Legislature is prima facie a valid Act of the Legislature and may not be impeached by any evidence of less dignity than a public record of an official executive or legislative Act."

In that case we also held:

"The Court has no power to take judicial knowledge of facts existing in pais depending upon parol testimony to establish them, that will destroy the faith and credit which the law requires to be given to a public record, and leave the officer, whose duty, or power, in law it was to make the record, under suspicion of fraudulent conduct in the making of it."

"Judicial knowledge is confined to the record when an official act of the legislative or executive department is called in question and such record is authentic and complete in itself."

The holding in that case, however, does not mean that on direct attack the Court may not inquire into the question as to whether or not the document which purports to be the record of the legislative proceedings is in truth and in fact a record of such proceedings. If it should appear in a proper suit instituted for the purpose of questioning the bona fides of the purported record that the purported record contains recitals of legislative action which in truth and in fact did not occur during the legislative session it became functus officio, the false entries may be expunged upon the ground that it is shown that when the body of men which had constituted the membership of the Legislature of Florida took the action assaulted they had ceased to be a legislative body by operation of the Constitution, or otherwise, *Page 565 and were, therefore, without jurisdiction to function as a legislative body, when it is further shown that there was neither legislative nor constitutional authority for including in the record the items which transpired outside of legislative authority.

In other words, a resolution duly adopted by each branch of the Legislature authorizing the Secretary of the Senate and the Chief Clerk of the House of Representatives to prepare the Journal of the last day of the session so that the same would speak the truth as to what transpired on the last day of the session would not authorize those officers to include something in the Journal that did not transpire on the last day of the session.

For the reasons stated, the demurrer will be sustained without prejudice to the respondent to institute any proceedings which he may be advised to be proper and necessary to correct the legislative records involved, should they be shown not to speak the truth, and judgment awarding the writ of ouster is withheld until the further order of this Court.

So ordered.

WHITFIELD, C.J., and TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.