THE STATE OF FLORIDA, EX REL. GEORGE W. MARKENS,

v.

MOSES J. BROWN, COLLECTOR OF REVENUE, RESPONDENT

The Chief-Justice delivered the opinion of the court'.

This is an original application for a mandamus to compel the Collector of Revenue to issue a license to relator to sell intoxicating liquors, notwithstanding the act of the Legislature of 1883, Chapter 3416. It is alleged by relator that the act printed in the statutes is not a valid law because a material amendment to the bill had been made by the Houses of the Legislature before its passage, which amendment had not been incorporated in the bill as enrolled and signed, and therefore the act as published is not the act as passed.- It is also alleged that the act was not passed in a constitutional manner, it having been read a' second time on one day without waiving the constitutional rule on that subject. The Journals of the Senate and As sembly are referred to as showing the irregular and unconstitutional manner of the passage of the bill.

Respondent moves to quash the alternative writ, and this motion, it was conceded, brought up the whole case upon its merits, the Journals of the Legislature being considered in connection with the allegations of relator. It is contended bj^ relator that when the bill was pending in the Senate (known as Assembly Bill Ho. 168) it was there amended by inserting at the end of section two the words : “ That the County Commissioners shall issue said license apon the presentation of such petition,” and the bill passed the Senate with this amendment, and on the same day the amendment was concurred in by the Assembly, but that this addition to section two was omitted from the enrolled bill and was not incorporated in the act as approved by the Governor. If the journals sho.w conclusively that any material portion of a bill as passed was omitted in the enrolling, so that it may be considered that the act as approved was not passed by the Legislature and does not express the legislative will, the act as approved, at least to the extent that it is affected by the omission, must be held invalid. This is a rule now well settled by the Americau courts.

The Constitution requires the keeping of, journals of their proceedings by the respective Houses of the Legislature; and these Journals are received as evidence of such proceedings. When an act is duly approved and published, it is prima facie a law ; but if the Legislative Journals show that instead of being passed it was defeated, or that it is not the same that was passed, it is not a law. See the-collection of cases in Cooley’s Con. Lim., 5th Ed., 163, note 2.

Upon an examination of the Journals of the Senate and Assembly of 1883 we are unable to find that the amendment above mentioned was voted upon or adopted. Ho mention was made in either Journal that any such amendment wa3 moved by any member or considered by either House.

The only mention of. it contained in the Journals is in a communication of the Clerk of the Assembly addressed to the President of the Senate under date of February 28d, 1883, as follows:

“ Sir: I am directed by the Assembly to inform the Senate that the Assembly has concurred in Senate amendment to Assembly Bill No. 168. Insert at the end of section two, ‘ that the County Commissioners shall issue said license upon the presentation of such petition,’ and refused to concur in the second Senate amendment ‘ to strike out all after the word minor in the fourth section,’ and refused to concur in the third Senate amendment, ‘ to strike out all after the word minor in the fifth section,’ and ask for a committee of conference, and have appointed Messrs. Harris, Cobb and Kickliter such committee on the part of the Assembly, and respectfully request the appointment of a similar committee on the part of the Senate.” (Signed by the Clerk.)

Now, the Senate Journal does not show that such an amendment was moved or voted upon in the Senate, nor do the words appear in any report of any committee which was acted on by the Senate. The only indication that such an amendment had been made is in this letter of the Clerk of the Assembly to the President of the Senate. The Clerk of the Assembly is not the proper source of information as to the action of the Senate, and nowhere else do we find the statement.

In the Journal of 'the Assembly, as before stated, we do not find any mention of any motion or vote upon this amendment.

The report of the Enrolling Committee of the House shows that the committee had examined the bill as enrolled, and find it “ correctly enrolled.” On the same day the Speaker of the Assembly and the Clerk signed the bill, attesting that it was the bill as passed. The bill was also duly signed by the President and Secretary of the Senate, thus attesting its correctness.

We have, then, no evidence that the words of the supposed amendment were ever adop ed by the Senate or Assembly and passed as part of the bill, but we have the negative evidence of the Journals of each House that no such amendment was passed, the Journals not showing it, and the affirmative evidence of the presiding officers and clerks that the bill was passed as signed by them ; and the certificate of the Enrolling Committee of the Assembly that it was enrolled as it was passed.

We cannot regard the communication of the Clerk of the. Assembly to the President of the Senate as evidence of the proceedings of the Senate while the Senate Journal does not contain such proceedings, nor does the Assemble Journal show its action on the amendment; nor can we take that communication as controlling evideuce, that the Enrolling Committee and the Speaker and the same Clerk of the Assembly were mistaken in certifying to the correctness of the enrolled bill.

The bill, after the supposed amendment, was in the hands of a committee of conference of both Houses, which committee reported the bill to the respective Houses and their report was adopted. There is nothing to show that any further action was ha 1 upon the bill before it went to the Enrolling Committee and they reported it correctly enrolled.

The conclusion is that there is no evideuce in the Journals of the two Houses that the act as approved is not identical with the bill as passed by the Legislature. The only remaining question suggested by the relator is that the act was not passed in conformity to the rules prescribed in the Constitution, in this, that' the bill was read a second time on the same day without waiving the rule prescribed in Section 15, Art. IV, to wit: “ Every bill shall be read by sections on three several days in each House, unless, in case of emergency, two-thirds of the House where such bill may be pending shall deem it expedient to dispense with this rule, but the reading of a bill by sections on its final passage shall in no case be dispensed with ; and the vote of the final passage of every bill shall be taken by yeas and nays, to be entered on the Journal.”

The bill having been passed by the House of Assembly went to the Senate February 23d, and on the same day a committee reported the bill for the action of the Senate “ with amendments.” After amendments had been acted on the bill as amended was read a second time. “Mr. Bryson moved to waive the rule and that the bill be read the third time and put upon its passage, which was agreed to by a two-thirds vote. Mr. Duncan moved that the rule be waived and that the bill be put back on its second reading for purposes of amendment, which was agreed to by unanimous consent. Mr. Duncan offered the following amendment: Strike out all after 1 minor ’ in section 5, which was adopted. On motion, the rule was waived by unanimous consent and the bill as amended was read the third time and put upon its passage.” The vote was, yeas, 11; nays, 8 ; so the bill passed. The above is quoted from the Journal.

The rule having been waived, it was only necessary to read the bill entire on it final passage, and this was done, after which the yeas and nays were called and recorded and the bill was passed. The rule being dispensed with, which the Senate was authorized to do, when, in its judgment, it was expedient, there was no necessity of reading the bill on three several days or three several times. The rule requiring it was not in existence as to this bill.

Says Judge Cooley, in his Constitutional Limitations, 164 : “ Whenever it is acting in the apparent performance of legal functions, every reasonable presumption is to be made in favor of the action of a legislative body; it will not be presumed in any case, from the mere silence of the journals, that either House has exceeded its authority or disregarded a Constitutional requirement in the passage of legislative acts, unless where the Constitution has expressly required the journals to show the action taken, as, for instance, where it requires the yeas and nays to be entered.” This is sustained by numerous adjudications cited by the author. The principle announced covers this entire ease. There must be affirmative evidence that an act attested by the officers of both Houses and approved by the Governor was not passed in accordance with the essential requirements of the Constitution, or it must be upheld.

The writ is quashed.

Mr. Justice Westcott

delivered the following opinion.

The act regulating the sale clearly comtemplates that the Collector of Revenue shall issue the license to sell. The general revenue statute makes express provision to like effect. The act regulating the sale, when construed with reference to the other legislation upon the subject, contemplates that the County Commissioners shall issue a permit' which is to be the basis of the act of the Collector in issuing the license. Any amendment, therefore, providing in terms that the County Commissioners should issue a license to be given an effect consistent with the clear intent of the entire Legislation, must be construed to be equivalent to authority to issue a permit, and nothing more. As this authority is already granted, the omission of the amendment would be an immaterial matter, the law having the same effect with it as without it. I have not examined to see whether such an amendment was made. With the conclusion I state, the other Justices concur.