¶1On Petition for Rehearing.
¶2An Act of the legislature, as appears by an enrolled bill on file in the office of the Secretary of State, bearing the signatures of the speaker and chief clerk of the House of Representatives, the president and secretary of the Senate and the Governor of the State of Florida showing that it passed the Hou.se of Representatives May 28th, 1921, the Senate June 2nd, 1921, and was approved by the Governor June 10th, 1921, is attacked as an act which had not become a law under the constitution because it had never been presented to the Governor by the legislature as required by the provisions of Article III, Section 28 of the Constitution.
¶3That section of the constitution is as follows: “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 the 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 ob*315jections 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.”
¶4It is apparent from the language of the above quoted section of the Constitution that before a bill which may have passed the legislature can become a law it must be presented to the Governor by the legislature. The method of presenting it to the Governor may be immaterial so long as the legislature presents it. Some courts hold that where the Constitution requires.the presiding officers of‘the two houses to sign the bill, such signing in open session of an enrolled bill is a presentation to the Governor. That it is an official attestation by the two houses of such bill as one that has passed. It is a declaration by the two houses through their presiding officers to the Governor that a bill thus attested has received in due form the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass the legislature shall be presented to him. Such is the holding in Field v. Clark, 143 U. S. 649, 36 L. Ed. 294, in which case there was under consideration an Act of Congress, the court holding that the signing of the bill by the speaker of the House of Representatives and the president of the Senate in open session was a presenting of the bill to the President by Congress.
¶5In the case of Carr v. Coke, Secretary of State, 116 N. C. 223, 22 S. E. Rep. 16, 28 L. R. A. 737, the petition alleged that the act which was attacked was signed by the speaker of the House and the president of the Senate in the presence of each house. In so far, however, as either of these cases hold that the court has no power to enquire into the passage of an act by the legislature to determine whether *316the requirements of the organic law have been complied with by the legislature, they are not authority in this jurisdiction, because this court has announced a doctrine in line with other jurisdictions holding to the contrary. See State ex rel. Attorney General v. Green, 36 Fla. 154, 18 South. Rep. 334.
¶6The court speaking through Mr. Justice Whitfield in Crawford v. Gilchrist, 64 Fla. 41, 59 South. Rep. 963, said: “Under our system of constitutional government regulated by law, a determination of whether an amendment to the constitution has been validly proposed and agreed to by the Legislature, depends upon the fact of substantial compliance or non-compliance with the mandatory provisions of the existing constitution as to how such amendments shall be proposed and agreed to and such determination is necessarily required to be in a judicial forum where the Constitution provides no other means of authoritatively determining such questions.” Again: “The people of the State have a right to amend their constitution, and they also have a right to require proposed amendments to be agreed to and submitted for adoption in the manner prescribed by the existing constitution, which is the fundamental law. If essential mandatory provisions of the organic law are ignored in amending the constitution of the State and vital elements of a valid amendment are omitted, it violates the right of all the people of the State to government regulated by law. It is the duty of the courts in authorized proceedings to give effect to the existing constitution. The proposal of amendments to the constitution is a highly important function of government, that should be performed with the greatest certainty, efficiency, care and deliberation. With this in view, the organic law confers this prerogative exclusively upon the Legislature, a soverign *317deliberative body, and a co-ordinate department of tbe State government, whose acts are independent of the other departments and subject only to the limitations contained in the fundamental organic law of1 the land. The provisions of the constitution mandatorily require amendments of the constitution to be proposed by either house of the Legislature in regular session and to be “agreed to by three-fifths of all the members elected to each house” of the Legislature. These requirements clearly contemplate that such amendments shall be agreed to by the deliberate, final, affirmative vote of the requisite number of the members of each house of the Legislature duly taken at a regular session. ’ ’
¶7In that case reference was made to the legislative journals to ascertain if the proposed amendment under consideration had been passed in compliance with constitutional requirements.
¶8In the case of Amos v. Mosley, 74 Fla. 555, 77 South. Rep. 619, speaking through Mr. Chief Justice Browne, this court said: “It is a well settled rule in this State that where the Constitution says that ‘each house of the legislature shall keep a journal of its proceedings which shall be published’ and expressly requires that ‘the vote on the final passage of every bill or joint resolution shall be taken by yeas and nays, to be entered on the journal of each house’ the journals are conclusive on the point whether the yea and nay vote was so taken and entered.” And Mr. Chief Justice Mabry, speaking for the court in State ex rel. Attorney General v. Green, supra, said: “There are two conflicting views held by the decisions on this subject. Under constitutional requirements that journals of the proceedings of the legislative bodies shall be kept and published, it has been held in many decisions that where the *318journal entries, as to the legislative proceedings, are explicit, and conflict even with legislative acts regularly authenticated, the journals are superior, and the courts will be governed by them as to matters clearly, explicitly and affirmatively stated therein.. The other view maintained by high authority, is that the legislative act itself embodied in a bill engrossed and enrolled, and bearing the proper official signatures, is of higher dignity than the journals, and wall over-ride them. This court has placed itself on the side of those maintaining the view first stated (State ex rel. v. Brown, 20 Fla. 407; State ex rel. v. Deal, 24 Fla. 293. 4 South. Rep. 899; Mathis v. State, 31 Fla. 291, 12 South. Rep. 681); and as there is ample authority to sustain this view, we will not now make any departure. It is generally held that the plain constitutional injunctions as to the mode and manner of enacting law's are mandatory, and the equally high authority that journals of the proceedings shall be kept, strengthens the view that the evidence of a compliance with such injunctions should be found in the journals. The inconvenience and danger resulting incidentally from the rule that the journals when clear and explicit as to matters proper to be incorporated therein will control, can be guarded against by a proper observance of the prescribed procedure and diligent attention to the making and preservation of the requisite journal evidence. But while the journals wall control, under the rules announced by this court, as to the legislative proceedings, it is proper to observe, in language used by Judge Cooley, and quoted by this court, that whenever the Legislature is acting in the apparent performance of its 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 *319a 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. State ex rel. v. Brown, 20 Fla. 407. As all bills and joint resolutions that pass both Houses of the Legislature are required to be signed by their respective presiding officers, and also by the secretary of the Senate and clerk of the House of Representatives, an act thus authenticated and approved by the Governor will not be set aside unless the journals affirmatively and explicitly show that the constitutional requirements have not been observed, except where the Constitution requires the journals to show the action taken, and then their silence will be fatal. An examination of the journals of the two Houses of the Legislature, which must control us, leaves no room to doubt that the title of the act as it passed both Houses differs, in the particulars mentioned, from the title of the enrolled bill approved by the Governor. The journal evidence of this fact is affirmative and explicit.-
¶9It is settled by this court that the Governor acts as a part of the law-making powers of the State in approving bills passed by the Legislature, and unless substantially the same bill that passed the two Houses of the Legislature is submitted to the Governor for his approval, it cannot become a law by his approval, or silence, or against his approval. Advisory Opinion, 23 Fla. 297, 6 South. Rep. 925; State ex rel. v. Deal, 24 Fla. 293, 4 South. Rep. 899.”
¶10Much that is contained in the above quotation is obiter dictum. The court had under consideration merely the question whether an enrolled bill on file in the office of the Secretary of State bearing the signature of the speaker and chief clerk of the House of Representatives and pre*320sident and secretary of the Senate and Governor of the State conld be successfully impeached by the legislative journals on the ground that the title of the act as it passed the legislature was different from the one appearing upon the enrolled bill’after the formalities of signing by the presiding officers of the two houses of the legislature and the respective clerks of each house and approval by the Governor had been complied with. The'answer to that question was in the affirmative and the .reason given for the answer was that the legislative journals which the constitution required should be kept and published were evidefice of superior dignity and quality than the record in the office of the Secretary of State of legislative action. In arriving at this conclusion it was pointed out that there were two lines of authorities, one holding to the affirmative of the proposition and the other to the negative..- This court decided to follow the former.
¶11.The proposition that the silence of the legislative journals upon legislative action which the constitution does not .expressly require to be recorded in the journals of the two houses shall not be taken as evidence that the required legislative action was not taken but on the contrary every reasonable presumption is to be made in favor of the action of the legislative body was announced in the case of Mathis v. State, 31 Fla. 291, 12 South. Rep. 681, for the first time in this State. The question arose upon the validity of the enactment of the Revised Statutes.
¶12The court held that all the proceedings in reference to the adoption of the Revised Statutes required to affirmatively appear on the journals were there recorded and rejected the contention that there was nothing to show that the Revised Statutes accompanying the bill were read and the further objection that there was nothing to identify the *321Revised Statutes on file in the Secretary of State’s office being the same revision of the statutes which was before the legislature accompanying the bill providing for their adoption.
¶13In case of State ex rel. Boyd v. Deal, 24 Fla. 293, 4 South. Rep. 899, the court speaking through Mr. Justice Raney held that the Governor acts as part of the law making power of the State in approving a bill passed by the legislature. The function is not of an executive but of a legislative character. The question arose upon the validity of the Palatka charter and the decision was by a divided court. Mr. Chief Justice Maxwell, who delivered the dissenting opinion, 'questioned the accuracy of the loosely expressed idea that the Governor in approving a bill passed by the legislature acted in a legislative character and pointed out that his approval was not essential to the validity of a bill passed by the legislature and presented to him. But in 1887 the justices of the court in an advisory opinion- to Governor Perry said that when the Governor was required by the constitution to do any act which is an essential prerequisite to the enactment of laws, such act is legislative in character and is performed by the Governor as a part of the lawmaking power and not as the law-executing or executive power.
¶14Advisory opinions however do not have the same force and effect as primary authority as decisions of the courts for the obvious reason that they are given in the nature of advice to the executive without the benefits derived from a litigated point on which the court has the advantage and aid of counsel’s argument. They are not judicial decisions but merely the expression of the opinion of the individual justices and accordingly without binding effect in a subsequent judicial proceeding before the court. See *322Laughlin v. City of Portland, 111 Maine 486, 90 Atl. Rep. 318; Woods v. City of Woburn, 220 Mass. 416, 107 N. E. Rep. 985, Ann. Cas. 1917A 492 and note.
¶15The reasoning of Judge Maxwell in opposition to the suggestion that the Governor acts in a legislative capacity while approving a bill appears to me as most cogent. Each branch of the government necessarily at times either by express'provision of the constitution or in the orderly administration-of the State’s affairs comes in contact with one or the other branch, but such contact in no wise merges the functions of one into that of the other. It appears to me as accurate to say that the court acts in a legislative capacity when it declares an act of the legislature to be unconstitutional as to say that the Governor so acts when he vetoes a bill. There would seem to be greater reason for the first proposition than the latter, because when the court declares an ac invalid it destroys its effect, but a bill-passed by the legislature may become a law the Governor’s veto notwithstanding.
¶16¡Before a bill passed by the legislature can become-'» law it must be presented to the Governor by the legislature:: Our system "of government-thus-provides two'checks upon legislative action, one a check, not however complete, by the- executive, and the other a complete check by the judicial braiaeli when ¿cause arises'in due form and the cburt deeins the'legislative action'to have been in violation of the'express or necessarily implied limitations of the 'constitution but In ’neither case does either official;' the Governor or the judges, act in a' legislative capacity.' ■ " _''
¶17-•According to this, view, .therefore; an enrolled.'bill'bearjng'i'thei signature's/ of> the1 presiding officers of' thg .'two; Hóuses hnd¡,their respective'.clerks-whicli is presentedtOKthe *323Governor in the manner which the usage, .the orderly con-, duct of legislative procedure and the rules under which the, two bodies- have ever acted and the express mandatory pro-, visions of the constitution requiring its presentation to the Governor marks the termination of - legislative 'action in regard to it.
¶18When such bill receives the approval of the Governor and. is signed by him and filed with the Secretary of State it becomes an executive record importing verity as to the or-, derly presentation of the bill to him as one which had passed the legislature which fact is essential to its becoming a law.
¶19The constitution definitely in most unequivocal terms, explicity and unreservedly requires certain procedure to be followed by the legislature in the passage of a bill or joint resolution, and those requirements are that on final passage the bill shall be read by sections, the yea and nay vote shall be taken, the presiding officers of the respective, houses and the secretary of the Senate and 'clerk of the House, of Representatives shall sign the same and the yea and nay vote on final passage in each house shall be entered on the respective journals. See Sect. 17 Art. Ill Constitu-, tion.
¶20The reason for requiring the signatures of the presiding officers and clerks of the two Houses is clearly expressed in the ease of Field v. Clark, supra, by Mr. Justice Harlan,, whose aid, speaking of the Constitution- of the United States, “although the constitution does not expressly require bills .that have passed Congress to be attested by the, signatures of the presiding officers of the two houses, usage,the orderly conduct of legislative proceedings and the rules; und,ér:which,the two bodies have, acted since the organiza*324tion of the government require that mode of authentication.” He then proceeds to say that such signing “in open session of an enrolled bill is an official attestation by the two houses of such bill as one that has passed Congress. It is a declaration by the two houses through their presiding officers to the President that a bill thus attested has received in due form the sanction of the legislative branch of the government and that it is delivered to him in obedience to the constitutional requirement that all bills which pass Congress shall be presented to him.”
¶21The constitution of Florida, as herein before stated, contains a provision identical in meaning with that of the Constitution of the United States as to the action the legislature shall take after a bill passes that body. In the case of the Federal Constitution the language is: “Every bill which shail have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States.7 7 The language of the Constitution of Florida is: “Every bill that may have passed the legislature shall, before becoming a law, be presented to the Governor.” In addition, the Constitution of Florida requires the signing by the presiding 'officer of the two Houses and their clerks.
¶22It seems to the writer that to hold these provisions of the organic law to be directory, that the signing of the bills passed ma.y be done after the legislature has adjourned sine die and cannot reassemble except upon call by the Governor under the constitutional provisions for calling extraordinary sessions, that after such adjournment the bill may be enrolled and the signatures of the officers written upon a blank sheet 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 *325by 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 proceedure ?
¶23The Constitution of Iowa adopted in 1857 contains a provision that ‘1 every bill having passed both Houses, shall be signed by the speaker and president of their respective Houses.” The Supreme Court of Iowa held this provision to be mandatory. See State ex rel. Hammond v. Lynch, 169 Iowa 148, 151 N. W. Rep. 81, L. R. A. 1915D 119; Cooley’s Constitutional Limitations 94.
¶24Judge Cooley says “It is the province of an instrument of this solemn and permanent character: to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters it is lowering the proper dignity of such an instrument and usurping the proper province of ordinary legislation.” The Supreme Court of Iowa holds that the enrolled bill on file with the Secretary of State is the ultimate proof of its passage in the form there appearing and that beyond this the courts cannot go in ascertaining whether the legislature complied with the requirements of the Constitution. This court, however, as has been shown, holds to the contrary view on that point.
¶25The Constitution of Texas 1876, Sec. 38. Art. Ill requires the bill passed by the legislature to be signed by the speakers of the two Houses in open session, and the fact of sign*326ing to bo entered on the journals. The court held the provision to be mandatory and that the journals could be rer ceived in evidence to show that the requirements had not been complied with, notwithstanding the enrolled bill signed by the two speakers and the Governor was on file with the Secretary of State and in so holding repudiated a contrary rule broadly announced in prior decisions. See Hunt v. State, 22 Texas App. 396, 3 S. W. Rep. 233.
¶26In the case of People ex rel. Akin v. Rose, 167 Ill. 147, 47 N. E. Rep. 547, the question is not discussed at all. The petition for mandamus to require the Secretary of State to file the bill and authenticate the. same while it recited the fact that the bill was enrolled and signed after the legislature adjourned presented the only point raised by the Secretary of State for refusing to file the same, which was that the bill had not been presented to the Governor for approval within ten days after the adjournment of the General Assembly. The court awarded, the mandamus in a modified form, directing that unless the Governor should veto the bill before the ten days elapsed and return the same with his objection the writ would issue. The decision was announced orally upon the facts stated in the petition. The only question considered was the construction of the term “within ten days, after adjournment.”
¶27I am persuaded that the following propositions are sound and are the law in this State :
1st. The provision contained in Section 17, Article III, of the Constitution requiring the presiding oficers and the clerks of each house of the legislature to sign all bills and joint resolutions passed is mandatory.
2nd. That such signing of bills and joint resolutions must be done in open session of the House over which the. *327officer signing is then presiding and to which the clerk sighing is attached.
3rd. That no bill passed .by the legislature can become a law until it has been presented by the legislature to the Governor.
4th. That such presentation can be made by the legislature only while in session.
5th. That the enrolled bill on file with the Secretary of State showing upon its face to have been signed by the presiding officers of the two Houses and their respective clerks before the legislature adjourned and to have.been approved by the Governor is prima facie evidence that all mandatory provisions of the Constitution as to the requirements to be observed by the legislature in the passage of the bill, signing by the officers and presentation to the Governor, have been complied with.
6th. That such prima facie evidence may be overcome by reference to the journals of either house, which if they affirmatively show such mandatory provisions were not complied with the so called act of the legislature must fail.
7th. That the approval by the Governor of a bill which has passed the legislature, is a certification by him that the bill after .its passage was presented to him while the legislature was in session.
; 8th: That the Governor's approval of a bill passed by the legislature constitutes an .executive record which imports the same verity, is as solemn and dignified an act and entitled to the same faith, credit and. respect, as the records of a court or those of the legislature.
9th. That the silence of the journals of the- legislature upom the question of., whether. the .-bill passed, by the leg*328islature was signed by the presiding officers of the two houses and their clerks does not overcome the prima facie evidence of regularity afforded by the enrolled bill on file with the Secretary of State, bearing upon its face the approval of the Governor and the signatures of the presiding officers of the two houses of the legislature appearing to have been attached before the legislature adjourned.
¶28The allegations of the bill charge the Governor, the president of the senate, the speaker of the house of representativs and the clerks of the two houses with conduct involving a disregard of the mandatory provisions of the constitution. Not conduct of a fraudulent or arbitrary character evincing disrespect of their obligations to the State, but of official action nevertheless which misrepresents the circumstances under which their names were signed to the bill.
¶29■ If, for instance, the officers of the two houses signing the bill under the extraordinary circumstances alleged in the complaint had frankly stated the fact, and the Governor had likewise stated over his signature the circumstances under which the bill came to his possession, the question would have been fairly presented upon the record made and the people would have been fully and accurately informed of the facts, and the question could have been determined by the courts squarely upon the proposition of whether the signing of a bill by the presiding officers of the two Houses was mandatory and whether such signing was required to be done in open session.
¶30As it is the determination of these vital questions, involving as they do the powers of the legislature, the safeguarding of the peoples rights from abuse that in a different case under a different administration at another time, people of conscienceless characters and designing motives *329may desire to practice upon the people for selfish ends becomes unnecessary and the issue may be made to turn upon a rule of evidence or pleading.
¶31If the allegations of the bill of complaint are true and the court holds the bill passed by the legislature to be valid notwithstanding, it is high time that the people of the State of Florida should be informed of the facility with which plain mandates of the constitution imposed by them upon their representatives in legislature assembled may be ignored by their representatives and the case with which the courts of the land may be prevailed upon to facilitate such practices by interpretation of words, construction of language which emasculates and devitalizes the living words of the people written by them in their Constitution to limit the powers of their servants to the end that liberty and the pursuit of happiness may be secured to them and their posterity.
¶32But the question presented in this case becomes one of pleading and later possibly one of evidence.
¶33It is not correct, as stated in the petition for rehearing, that the presumption of facts arising from the enrolled bill in the Secretary of State’s office is a nontraversable fact. Nor is it in any sense true that the bill imports absolute verity. Its validity may be attacked as successfully as the verity of any other record. The power to correct error is inherent in all governments. As pointed out, this court will have recourse to the legislative journals to determine in some cases whether an act of the legislature duly signed and approved and on file with the Secretary of State is valid legislation.
¶34The signature of the Governor to the bill on file with the Secretary of State makes the document an Executive Eec*330ord. It implies that the bill came to’ him in due course while the legislature was in session pursuant to the clear and unmistakable language of the Constitution. The bill-of complaint charges a state of facts contradictory of the clear implications of the record. A state of facts which if true would vitiate the record and render it void and of no effect. But may the record be attacked collaterally ? Has the Comptroller by the Attorney General the power to admit a state of facts which would impeach an Executive Record and destroy its effect, a record in the making of which he had no part?
¶35Assuming that the complainant as a citizen and tax payer may maintain his bill to test the validity of the act, if he relies upon the misconduct of officials’ to impeach the record should they not be parties? Or if he relies upon the affirmative declarations of the legislative journals to sustain the truthfulness of his allegations, should he not allege that the journals contain- such affirmative evidence of the invalidity of the act? In the event of issue joined upon the allegations of fact contained in this bill and the journals are silent as to the enrolling and signing of the bill how is the proof to be made? Will the speaker of the House or President of the Senate, or Governor, be permitted to testify to any fact that would impeach the official record ?
¶36These questions were not considered in the majority opinion nor in the minority opinion filed by Mr. Justice Whitfield and concurred in by Mr. Justice West. I consider them essential to be considered in the determination of the question raised upon demurrer and for the reason given I favor the granting of a rehearing in this case and so vote.
¶37concurring in part and dissenting in part.
¶38I 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.
¶39I 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.
¶40*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.
¶41This 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.
¶42Whatever 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.
¶43Mr. 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?”
¶44It 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.
¶45This 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?
¶46The 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.
¶47Rules 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.
¶48Writers 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:
¶49These 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.
¶50. 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.”
¶51*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. ’ ’
¶52Thus 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.)
¶53In 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. ’ ’
¶54The 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.
¶55The 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.”
¶56If, 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.”
¶57How 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.
¶58. 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.
¶59*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.”
¶60*394- We are, therefore, confronted with a situation that so for as we can find has never arisen before.
¶61What 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.
¶62The 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.
¶63The 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.
¶64■ 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.
¶65The 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.
¶66*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.
¶67A 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.
¶68In 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.
¶69The 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.
¶70Accepting 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.
¶71I 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.
¶72The 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.
¶73This 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.
¶74■ 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;
¶75This 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.
¶76President 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.
¶77*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.
¶78The 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.
¶79Having 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.