delivered the following dissenting opinion :
I do not concur in the opinion of a majority of the court.,, and will give my own views of the case.
On the 12th of November, 1887, the relators in their capacity as City Council of Palatka, and as citizens of said city, filed their petition in this court fora writ of mandamus to compel respondent, as Assessor of the city, to assess the property therein under section 7, of chapter 3780, of the acts of 1887. The substance of their petition is,, that the time for beginning the assessment has arrived, and that the City Council, by resolution adopted in September,, ordered the Assessor to proceed with the assessment under the section mentioned, but that he refused, and still refuses, claiming that he should make his assessment in the-manner provided by the general law for the incorporation of cities and towns, because under section 30 of the act containing section 7, that act does not'become operative until: the Mayor and City Councilmen have been elected and qualified under it. The relators allege that said section 30" is no part of the law, inasmuch as neither that section nor any others, except those from 1 to 8, inclusive, were ever passed by the Legislature, wherefore they say the assessment should be made as the City Council ordered.
To the' alternative writ the respondent makes return» that he refuses to make the assessment as ordered—
1st. Because chapter 3780 is not a valid law, being local or special, within the meaning of the Constitution, and no notice of intention to apply for the same was published sixty days, as the Constitution requires; and further, because in the Legislature which passed it, the Senate was presided over by the Lieutenant-Governor, and .not by one-of its own members, as provided by the Constitution.
*3122d. Because if said chapter be a valid law, it does not go into effect until the Major and Councilmen have been elected and qualified thereunder, and that these have not been elected; and further, because section 25 of the act provides that “ the assessment shall be made * * under the laws by which * property is assessed for State and county purposes.”
Chapter 3780, referred to, is “ An act to revoke and abolish the present municipal government of the town or city of Palatka, and to reorganize a city government for the said town or city,” approved June 3d, 1887.
At the hearing, the relators, to show that only the first eight sections of the act were passed by the • Legislature, produced in evidence, through the Secretary of State, the original bill, and the original engrossed bill, and the journals of the Senate and House of the session of the Legislature in which the act was passed. From these it is shown that the bill originated in the Senate, and was passed there, containing thirty-one sections, the last twenty-three of which are the sections from 9 to 31, inclusive, of the act as it now stands. The bill, as thus passed, went to the House, and in that body was amended by striking out all after the enacting clause, and inserting eight sections, which are the first eight sections of the act as it now stands. The Senate concurred in the amendment; and the bill, thus amended, was the bill, and all of the bill, that was finally passed by both houses.
It is shown by inspection of the engrossed bill that the change which resulted in the present act was brought about in the enrollment by substituting the eight sections of the amended bill for the first eight of the Senate bill, and then adding the remaining twenty-three sections of the latter bill, which had not been passed.
The case thus presented involves the constitutionality of *313the act, which is assailed on two grounds. The first of these is that the act, being a local one, the Constitution requires sixty days notice before the introduction of the bill, and respondent says this was not given ; and the second is that the law is unconstitutional because the Lieutenant-Governor presided over the Senate, instead of one of the members of the body elected, by itself. In the case of the State ex rel. McQuaid et al. vs. County Commissioners of Duval county, decided at the last term, this court held, in reference to the same objections to the constitutionality of the charter for the city of Jacksonville, that the objections are not well taken. That ruling will apply to this case, and it is unnecessary to repeat here the reasons upon which the ruling was based.
These objections aside, the question arises whether the act, in view of the evidence as to its passage, has constitutional standing as a legislative enactment. While every presumption is to be allowed in favor of the Legislature to sustain its acts, there is abundant authority to the effect that its journals and authentic papers may be resorted to for evidence of its action on the bills before it, that get into the statute book as laws, to ascertain whether they have or have not been passed in accordance with the requirements of the Constitution ; and that if, from such evidence, it be found that what purports to be a law was never passed it may be pronounced to be of no validity. Cooley’s Con. Lim., 163; Gardner vs. Collector, 6 Wallace, 499; Spangler vs. Jacoby, 14 Ill., 297; Beny vs. B. & D. P. R. R. Co., 41 Md., 446; Asburn vs. Staley, 5 W. Va., 85; S. C. 13 Am. Rep., 640.
It is clearly shown by the journals before us that the Palatka charter, as it passed the Legislature, had only eight sections, these being the first eight in the approved act; and just as clearly shown that the other twenty-three sec*314tions of the approved act were not passed by the Legislature. However it may have occurred, whether by design or mistake, the bill as passed is not the. bill enrolled, signed and approved. There can be no question bat that, the sections not passed have no validity. They appear under the form of law, but are utterly null and void. The question then is, whether their infirmity attaches to the other eight sections, and invalidates the whole act? The decisions on this subject are diverse. In 43 Ala., 721, is a ease (Jones vs. Hutchinson) somewhat similar to this. The act there contained only one section, with a proviso. From the journals of the Legislature it was shown that the proviso was not passed, while the other portion of the act was. The court held that the bill signed and approved was not the bill passed, and that, therefore, the whole act was void. Moody vs. the State, 48 Ala., 115, is to the same effect. On the other hand, in State vs. Platt, 28 So. Ca., N. S., 150. it is held that when part of an act was properly passed by the Legislature, and part not, the courts may either declare the whole act void, or only that portion not passed. The case in 41 Md., supra, was one in which part of a statute was sustained, while another part of it was declared null and void, because it had not been passed by the Legislature. In that case it is said: “ As the entire published statute, except the third section, was regularly passed by the Legislature, and approved by the Governor, there can be no reason for declaring the other portions of it void, because the third section is found to be a nullity. ¡Statutes may be void in part and good in part; and if the part that is valid is entirely distinct and sev.erable from that which is void, the courts will uphold and euforce the former as if passed disconnected from the latter.” I think this the correct rule. The Alabama cases must have been decided on a distinction in the mind of the court, though not ex*315pressed, which placed an act, parts of which are invalid, because not passed by the Legislature, on some different looting from an act with part regularly passed, but void because unconstitutional. In my opinion there is no just distinction by which the familiar rule that courts may uphold one portion of an act while declaring another portion void, should not apply to an act whose defect arises from one portion of it not having been passed by the Legislature. If that portion can be stricken out, and, in the language of Cooley, “ that which remains is complete in itself, and capable of being executed in accordance with the the apparent legislative intent, wholly independent of that rejected, it must be sustained.” I can see no reason why this doctrine should not apply to all statutes alike, whatever may be the grounds of the invalidity of their bad parts.
Whatever is void is not law, say the courts. They further say that what is void in a law may be stricken from it, and that it is their duty if what remains can be enforced independent of the part stricken, to uphold that much ; but they nowhere say, and it would be inconsistency to say, that being void for one reason this- is unauthorized, while if void for auother a different rule may prevail. In every case where part of a law is sustained to the exclusion of another part, the whole has been approved by the executive, the bad and the good alike. If it has the form of law in a case like the present, as well as in cases where the whole act was passed, it would seem to be making a distinction without a difference to declare the former all void and the latter void only as to its bad parfs.
It is suggested that the conclusion which sustains this act, disregards the position and rights of the Governor, that as a component part of the legislative power his action is directed solely to the consideration of the bill presented *316to him, and if a bill is presented which he approves, it is a bill that in its entirety most be considered a bill duly passed by the Legislature, else no bill at all. This view, as I think, rests upon a misapprehension of the relations of the Governor towards legislation. The provision of the Constitution which connects him with legislation is this : “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 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 objections 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.” Section 28, Article III.
This does not convey the idea, loosely expressed, it seems to me, by some authorities, that the Governor is a component part of the Legislature. The three departments of government — legislative, executive and judicial, have separate, distinct functions, each independent of the other, with exceptions provided for, one of which is found in the foregoing section of the Constitution, and also except so *317far as the Constitution provides checks to restrain encroachments upon each other, or upon the rights or welfare of the people. The executive, by the checking power given to that department, restrains the legislative by the interposition of a veto. The judicial department puts its restraint upon both the others through its power to declare their acts unconstitutional and void. And the legislative department regulates the others by its authority to make laws, unlimited except by such prohibitions as are imposed by the Constitution. Each acts for itself within its sphere, and when they are brought into connection, as the Gover. nor and Legislature are in the passage of laws, or into contact, as the judiciary may be with the others in its authority to pronounce upon their acts or proceedings, it is chiefly in the way of restraint or check upon each other. This adjustment is considered the crowning excellence of the governments of this country — the cardinal idea being that the safety of our institutions depends upon the holding of each department to its separate functions.
It is the function of the legislative department to pass laws, and that function is subject to no restraint except the veto of the executive. When an act is passed and presented to the Governor for his approval, it is not because that approval is necessary to make it a law, for it becomes a law irrespective of his approval, if he does not challenge it by a veto; and even if he vetoes it, it may become a law independent of him by a two-thirds vote of the two houses of the Legislature. It is clear, therefore, that the Governor’s agency in the passage of laws is not affirmative, but only a sign to indicate that he has no veto to iuterpose.
Then, if all bills passed by the Legislature may become laws without any affirmative action of the Governor, does his approval of a bill, part of which has been passed by *318the Legislature, continuing other parts not passed, fail to make law of the part passed ? Why should it ? The only reason given is that the bill presented to the Governor was not the bill which passed, though included in it. How that makes the question of the validity of the part passed, if it can stand by itself, different in principle from the case of a bill, all of which was passed and approved, but some of it void, while the rest may be sustained, I am unable to conceive. I cannot enter into the reasons of the Governor for his approval in the one case any more than in the other. To do that would require us to say that he would not have approved the bill if it had been presented to him as actually passed. There can be no escape from this, except upon the naked rule that a bill presented to the Governor and approved by him, which contains substantive matter not passed by the Legislature, is ipso facto en_ tirely void. I think such a rule is against the analogies of the law, and that, in view of the mischief that may be perpetrated under it, either by evil design or clerical mistake, good reason will not uphold it.
Applying the foregoing views to the act under consideration, I am now to enquire whether, if all the sections after the Sth are stricken out, a law is left complete in itself, answering the intent of the Legislature, and in nowise dependent ou those sections, or any of them. Prima facie, there would be such a law, for those eight sections constitute the law as it actually passed the Legislature. But, onking to the act itself, I come to the same conclusion.
The first section provides for the division of the city into four wards, restricts voting to the ward in which the voter resides, and authorizes the Mayor to appoint three inspectors of election in each -M’d.
The second section provides that at the next annual election there shall be chosen two Aldermen for each ward, *319and an Alderman at large, who shall constitute the city Council; and fixes the terms of the Aldermen so that at' subsequent annual elections one shall be chosen tor each ward to serve for two years, but the one at large to be elected every year.
The third section provides the mode of appointment of City Marshal, fixes his salary, and directs how he may be removed or suspended.
The fourth section fixes the salary of the Mayor, and provides for the disposition of fines, forfeitures, &e.
The fifth section invests the City Council with power to levy taxes annually to the extent of two per cent, of the assessed value of the property in the city, and no more.
The sixth section empowers the City Council, with approval of a majority of the registered voters of the city, to issue bonds for sanitary and municipal purposes, the interest on same not to exceed the legal rate of interest of the State.
The seventh section provides that the City Assessor shall assess property in the city equally at its fair and reasonable valuation ; and gives the City Council power to act as a board of equalization.
The eighth section is as follows : “ Nothing in this act shall be so construed as to deprive the city of Palatka of its rights, powers and privileges now allowed by law under the general incorporation act for cities and towns in this State, but all the provisions of said general incorporation law, not inconsistent with this act, shall apply to said city of Palatka.”
Prom this compendium of the eight sections it will be seen that the first seven provide for special matters pertaining to the government of Palatka, while the eighth provides for all other matters necessary to compílete the organization by continuing in force such provisions of the *320general law for the incorporation of towns and cities as are not inconsistent with the previous seven. Practically the general incorporation law is kept in force, modified only by the provisions of those seven sections. Taken together, they constitute a law complete in itself, and answering the purpose of reorganization expressed in the title of the act. I think, therefore, that these eight sections, disencumbered of the others, should be sustained as the act passed by the Legislature, signed by its officers and approved by the Governor.