star-pagination">*Page 770 Commissioners of the County "to refrain from offering for sale one million dollars par value of Marion County Road Bonds remaining unsold and undelivered of the $4,550,000. issue of Road Bonds of said County voted in the year 1925 upon the ratification of such law by a majority of the qualified freeholders of said County to be ascertained in an election to be called and submitted as shall be provided in said law" etc. The notice was signed "Marion County Tax Payers League by J. E. Baxter, President."

A bill was introduced in the Legislature subsequently to the published notice which had for its title: "An Act Relating to the Authority of the Board of County Commissioners of Marion County, Florida, to issue and sell the unsold portion of the Four Million, Five Hundred and Fifty Thousand Dollars ($4,550,000.00) of authorized County of Marion Highway Bonds; providing for the cancellation and abrogation of the authority of said Board of County Commissioners to issue and sell one-half of the One Million Dollars ($1,000,000.00) unissued and unsold portion of said bonds; providing for the submission to the qualified electors, who are freeholders in said Marion County, Florida, of the question of whether or not the authority of the Board of County Commissioners of Marion County, Florida, to issue and sell the other one-half of the unsold portion of said bonds, shall be abrogated and rescinded; and providing for a special election to be held, to determine such election and prescribe the effect thereof." (Chapter 14217, Special Acts 1929).

The Act provided in substance that the Board of County Commissioners should forthwith cancel $500,000 of the authorized bond issue; that the "right, power and authority" of the Board to issue and sell the $500,000 of the bond issue directed and required to be cancelled be "withdrawn, abrogated and set aside" and the issuing of the *Page 771 same was made unlawful; that as to the remaining $500,000 of that issue provision was made for submitting the question of rescinding the Board's power to issue the bonds to the freeholders of the County who were qualified voters at the last general election, at an election to be called for that purpose. It was also provided that the issue and sale of any portion of the $1,000,000 of unsold and unissued bonds should be prohibited until after the result of the election was declared.

Section 7 of the Act reads as follows:

"Section 7. It is hereby found and determined by the Legislature that due and legal notice of intention to apply for the passage of this Act was published in the Ocala Evening Star, a newspaper published in Marion County, Florida, which notice was published in the issue of said newspaper dated April 16th, 1929, which notice the Legislature finds and determines was in compliance with Section 21 of Article III of the Constitution of the State of Florida as amended at the general election in 1928."

When the bill was introduced in the Senate there was attached to it an affidavit by H. D. Leavengood that a "notice stating the substance of a contemplated law or proposed bill relating to the authority of the Board of County Commissioners of Marion County, Florida, to issue and sell the unsold portion of the four million five hundred and fifty thousand dollars of authorized County of Marion Highway Bonds, has been published at least thirty days prior to this date, by being printed in the issue of April 16, 1929, of the Ocala Evening Star, a newspaper or newspapers published in Marion County, Florida; that a copy of the notice that has been published as aforesaid and also this affidavit of proof of publication are attached to the proposed *Page 772 bill or contemplated law, and such copy of the notice so attached is by reference made a part of this affidavit."

That affidavit was spread in full upon the Senate Journal and following that entry there appears the following: "And the Senate thereupon determined that the evidence that said bill has been published in compliance with Section 21 of Article III of the Constitution has been established in this Legislature."

The rules were then waived on motion and the bill was read a second time by its title only and proceeded to its final passage.

In 1928 Section 21 of Article III of the Constitution was amended so as to provide, among other things, that "The evidence that such notice has been published shall be established in the Legislature before such bill shall be passed by having affidavit of proof of publication attached to the proposed bill when the same is introduced in either branch of the Legislature, and which such affidavit constituting proof of publication shall be entered in full upon the journals of the Senate and of the House of Representatives, which entries shall immediately follow the journal entry showing the introduction of the bill."

It is apparent from the above language that the Constitution requires that when a local or special act of the class affected by this provision is contemplated, first, that the notice of the intention to apply for the passage of such an act shall be published; second, that the evidence that such notice has been published shall be established in the Legislature; third, thatsuch evidence shall be by an affidavit of proof of thepublication attached to the bill when it is introduced; fourth; that the affidavit constituting the proof of publication shall be entered in full upon the journals of the Senate and of the House of Representatives, and fifth that such entries shall immediately follow the journal entry showing the introduction of the bill. *Page 773

It is clear to my mind that the Constitution by such language determines the competency of the evidence by which the publication of the notice is to be established in the Legislature and declares that such evidence shall be by "affidavit of proof of publication attached to the proposed bill when it is introduced"; that it also requires that such "affidavit constituting proof of publication shall be entered in full upon the journals of the Senate and of the House of Representatives" and that such entries shall immediately follow the journal entry showing the introduction of the bill.

It is the affidavit which constitutes the evidence of publication. It is the affidavit which is to be attached to the bill and the affidavit which must be entered upon the journals. To say that the notice of intention to apply to the Legislature for the passage of the bill as the same was published shall be attached to the bill when introduced or entered in full upon the journals is to read a requirement into the Constitution which neither its letter nor its spirit requires.

Under the provisions of the amendment the Court may now "look to the journals and the evidence attached to the bill to ascertain whether they disclose that proper notice was given." See Whitney v. Hillsborough County decided at the present term. This Court has not held that the amendment now permits the courts to look to the notice which was actually given and to go into an inquiry as to the truth or falsity of the facts upon which the legislation is supposed to be predicated where the Legislature has sole jurisdiction of the subject. When it does so hold the doctrine announced in Stockton v. Powell, 29 Fla. 1, 10 So. R. 688, will have to be again restated.

The competency of the evidence by which the publication of the notice is to be proved is determined by the Constitution. *Page 774 The sufficiency of that evidence as to the contents of the notice as published and the subject with which it deals is for legislative determination. A notice stating the substance of the bill to be introduced is required to be published thirty days before the bill is introduced in the locality where the matter to be affected by the bill is located, but the proof that such notice has been published is required to be established in the Legislature by affidavit.

The purpose of the constitutional provision is obvious. It is that the people of any locality to be affected by a proposed special or local law may be notified of the proposition to be submitted so that if they deem it expedient to do so they may exercise the right to "assemble together to consult for the common good, to instruct their representatives and to petition the Legislature for redress of grievances." Sec. 15, Declaration of Rights, Constitution of Florida.

The power to enact a local or special law depends upon the publication of a notice for the required time of intention to apply therefor. The sufficiency of the notice as to the contemplated law is for legislative determination subject to review by the courts for an unreasonable exercise of the discretion. It is restricted for proof to an affidavit of the publication of such notice.

I know of no authority which empowers the court to sit in judgment upon a legislative act which depends for its validity upon the evidence by which its necessity or expediency was made manifest to legislative judgment. The "judiciary is without power to enquire whether the requisite notice of application for the passage of local or special legislation has been given." See Whitney v. Hillsborough County, supra.

If an affidavit attached to a proposed local bill was absurd, wholly irrelevant and bore no relation to the subject *Page 775 matter of the bill, legislative action in passing it would be deemed invalid because of an arbitrary and unreasonable exercise of the power to enact local or special legislation, but where the affidavit describes a notice which relates to the subject matter of the proposed bill, described the matter to be affected and the relief which would be sought it is not within the power of the court to substitute its judgment for that of the Legislature as to the question whether the notice served to advise the people concerned.

The strict rules of pleading are not and cannot be applied to such transactions. That the notice should be certain to that degree required of a plea in bar was not intended; rather that rule which applies in determining the sufficiency of a title to a bill should be all that is required.

There is another reason why the bill is valid. The published notice was to the effect that bill would be requested requiring the Board of Commissioners to refrain from offering for sale one million dollars of the bonds. The act requires the Commissioners to refrain from issuing $500,000 of the bonds. As to the remaining $500,000 the issue is left by the act to the determination of the people at an election to be held for that purpose. In that case no notice of special legislation is necessary under the Constitution. That portion of the act is valid. There is no constitutional objection to it. Now the notice referred to a bill which would require the County Commissioners to refrain from issuing the entire sum of one million dollars of the bond issue.

The Act provides that $500,000 of the issue shall be restrained and the other $500,000 of the issue shall be restrained if the people at an election to be held shall so declare.

In other words the Legislature gave half of what was asked for outright and the other half on condition that the *Page 776 people concerned should so agree. In what way were the people misled by the notice?

Whether the failure to enter the affidavit on the journals of the House as well as those of the Senate is sufficient to invalidate the bill is not determined. See Keene v. Lake County, 125 So. R. 908.

I think the decree was erroneous and should be reversed.

BUFORD, J., concurs in part but dissents as to the conclusion.

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