HOCKER, J. On the 19th of May, 1913, W. A. Hallowes, as state attorney of the Fourth 7. MUNICIPAL CORPORATIONS (8 918*)-CITY judicial circuit, under the authority conferBOND ELECTION-CANVASS OF RETURNS- red on him by section one (1), c. 6237, Laws VALIDITY OF CERTIFICATE.

10. MUNICIPAL CORPORATIONS (§ 907*)-MU-sideration thereof, it is ordered, adjudged, NICIPAL BONDS VALIDITY OF STATUTE "GOLD COIN."

Petition by the State, on relation of W. A. Hallowes, Jr., State's Attorney, and another, for a decree validating municipal bonds of On the 23d of December, 1913, B. G. Lasthe city of Jacksonville, and B. G. Lasseter seter entered his appeal from this decree.

The first six assignments of error are aban- nay, or that they declined to vote. State ex doned.

rel. Markens v. Brown, 20 Fla. 407, is cited by [1] The seventh assignment is as follows: appellant. The facts in that case are unlike "Said circuit court erred in making and en- those in the instant case, but appellant copies tering its order and decree of June 24, 1913, from the opinion in the case a quotation from validating and confirming said city of Jack Cooley's Constitutional Limitations to the efsonville dock and terminal bonds." This gen- fect that it will not be presumed, from the eral assignment only raises the question of mere silence of the journals, that either the merits of the decree. Assignments of er- house has exceeded its authority, or disreror ought to be specific. Newberry v. State, garded a constitutional requirement, in the 26 Fla. 334, 8 South. 445; Hodge v. State, passage of a legislative act, unless where the 26 Fla. 11, 7 South. 593; 2 Ency. Pl. & Pr. Constitution has expressly required the jour954. Under this assignment, the appellant nals to show the action taken, as, for inpresents divers grounds based on rulings on stance, where it requires the yeas and nays demurrers to the petition. The third ground to be entered. Of course this can only aptakes exception to the manner in which the ply to cases where there are yeas and nays Legislature of 1912 was called in session by to be entered. The Constitution (section 17, the Governor. It is alleged the journals show art. 3) does not in terms require the fact affirmatively the Governor did not believe it to be entered that there are no yeas or no necessary to call the extra session. The jour-nays on the final passage of a bill. It seems nals also show he did call it together, and to require only that the yeas and nays shall what he may have thought of his act is immaterial, under section 8, art. 4, and section 2, art. 3, Constitution of 1885. Farrelly v. Cole, 60 Kan. 356, 56 Pac. 492, 44 L. R. A. 464.

[2] The next question presented by the brief is that chapter 6415, Laws of 1912, was not passed in conformity with the requirements of, nor in the manner prescribed by, section 17 of the Constitution of Florida as amended in this, that the yeas and nays were not entered in the journal of the House of Representatives upon the vote on the final passage of said act, as required by said section as amended, but only the affirmative votes, and it is not stated or shown by said journal how the members of said House, other than those who voted affirmatively, voted upon the final passage of said act; and, in connection with this question, is another, viz., that the yeas and nays were not entered in the Journals of the House as required by this section of the Constitution. It is admitted by appellant in his brief that the journal in question shows affirmatively that Senate Bill No. 3 (the bill in question), on its final passage, received 65 affirmative votes in the House on its final passage from members properly named in the journals, who, at the time the vote was cast, constituted a clear majority of all its members and a legal and sufficient quorum of said House of Representatives. But it is contended that before the regular passage of the bill can be claimed, that the journal of the House should show, in addition, that the six members not accounted for on the final vote, either refused to vote or voted in the negative, and that, in the event there were no negative votes, this fact must affirmatively appear as a part of the journal entry, and, the journal failing to show this information, chapter 6415 (Senate Bill No. 3) of the Acts of 1912 is, for the reason stated, inoperative and void. On pages 51 and 52 of the Journal of the House it is seen that 65 members voted yea, and does not show that the other six members voted

be entered in the journal. If there are neither of these, there is nothing to enter. The journal does not show there were any nays, and we cannot infer it. Several other Florida cases are cited, but the facts are different from this case. There were not more than 71 members in the House, and 65 voted for the law, which was more than a sufficient majority to pass it.

In the case of Steckert v. City of East Saginaw, 22 Mich. 104, Judge Cooley wrote the opinion of the court. He is dealing with the charter of the city of East Saginaw, which requires that the vote of a city coun cil in certain cases shall be entered at large on its minutes. He decides that the record of a vote that it was adopted "unanimously on call," the names of those voting no otherwise not appearing than by the statement of those present at the opening of the session is not a compliance with the statute. He asserts that: "Neither the spirit nor the purpose of the act can be satisfied with entries on the minutes, showing who voted on each resolution embraced within the terms of the act, and how the vote of each was cast; in other words, the ayes and nays on each resolution must be entered at large on the minutes." Among other arguments used by him in support of his views is the following: "What is designed by this statute is to fix upon each member who takes part in the proceedings on these resolutions the precise share of responsibility which he ought to bear, and that by such an unequivocal record that he shall never be able to deny either his participation or the character of his vote. But manifestly we cannot determine in the present case with any certainty that any one of the aldermen named-Alderman Buckhout, for example-actually voted for the resolutions in question. We know he was present when the council convened, but we have no record which points specifically to his individual action afterwards. Suppose he were to contest the tax as illegal, and the city authorities were to insist upon an equitable

estoppel arising upon his vote in its favor, "It is not sufficient to enter the yeas and and he should deny such vote, we should omit the nays, nor to enter the nays and look in vain in this record for anything ab- omit the yeas, and in all cases the names of solutely inconsistent with such denial. Sup- those voting in the affirmative and negative pose his constituents, dissatisfied with his must necessarily be entered on the journal.” vote, undertake to call him to account for his In considering this case, we find it difficult participation, and he were to say to them, to understand how the 11 members not vot 'I was not present when these resolutions ing are to be considered as having voted elwere adopted; I was indeed present when ther yea or nay. If they refused to vote, the council convened, but was called away what authority did the clerk, or the House soon after on private business;' this record itself, have to record them as voting "yea or plainly could not be relied upon to contradict | nay"? If this construction is correct, one his assertion. The persons arraigning him single member who refused to vote could dewould be obliged, in order to fix his responsi- feat the passage of any act, and possess a bility, to resort to the parol evidence of his veto over legislation. We do not think this associates or of bystanders. But the Legis- construction should be placed on our Conlature understood very well the unsatisfac-stitution. Certainly every member of the tory character of that kind of evidence, and Legislature ought to vote aye or no on the they did not intend that the power to call an final passage of a bill, but we hesitate to put alderman to account for misconduct, delin- a construction on the Constitution which quencies, or errors of judgment in the per- seems to lead to an absurdity, and give a formance of this official duty should be left to single contumacious member of the Legisdepend upon it. They have imperatively re- lature the power to defeat all legislation by quired that there should be record evidence simply refusing to vote aye or no on the final of a character that should not be open to passage of a bill; so that, although he may contradiction, or subject to dispute; and be present, he cannot be recorded as voting their requirement cannot be complied with aye or no. A majority vote of the members according to its terms, nor satisfied in its present is all that is required by the Conspirit and purpose, without entries in the stitution to pass every bill or joint resoluminutes showing who voted on each resolution. Section 17 of article 3 of the Constitution embraced by the section quoted from tion as amended. the charter, and how the vote of each was cast. In other words, the ayes and noes on each resolution must be entered at large on the minutes, so that the presence or participation of any member shall not be left to conjecture or inference." It is evident that Judge Cooley is dealing with a proceeding to levy a tax by the city of East Saginaw, and not with an act of the Legislature. Then again he is dealing with a proceeding adopted by a unanimous vote, which does not give the vote of any single member of the city council, and fixes no responsibility upon any member as to how he voted. In the instant missioners of Madison County, 125 N. C. 480, case the journal of the Legislature affirmatively shows that 65 members of the Legislature by name voted for the act which is attacked. It may be that even so great a legal mind as Judge Cooley might find it difficult to lay down a rule of construction, in considering a city ordinance, which would be applicable to all possible conditions which might arise under the provision of the Constitution we are considering.

The Constitution of North Carolina seems to be like ours in requiring the aye and nay vote on the final passage of a bill to be entered on the journal. The Supreme Court of that state in several cases holds that, if there are no nays, that fact should be affirmatively stated; and yet the Constitution only re quires the aye and nay vote; yet the court argues from this that "of course, if there were no nays, that fact should be affirmatively stated." This is simply an inference of the court. The Constitution does not expressly require it. See Smathers v. Com

34 S. E. 554; Commissioners of New Hanover County v. De Rosset, 129 N. C. 275, 40 S. E. 43; Debnam v. Chitty, 131 N. C. 657, 43 S. E. 3. It is upon this inference that the statutes they were considering were held unconstitutional.

In the case of Board of Commissioners of Onslow County v. Tollman, 76 C. C. A. 317, 145 Fed. 753, this question was very thoroughly considered by Judge McDowell. The In the case of Smithee v. Garth, 33 Ark. opinion in this case is so clear and logical 17, the Supreme Court of Arkansas applied it is well worth reading. He starts his reaJudge Cooley's views in a case where there soning with the maxim "Omnia præsumuntur” was a constitutional provision similar to the officers of the Legislature are presumours, and where the vote on the final pas-ed to have done their duty, in the absence of sage of a bill was affirmative; 47 yeas, nays 24, not voting, 11. The court says in its opinion:

"The Constitution says the yeas and nays shall be entered on the journal; and we have no right to say that this need not to

proof to the contrary. He cites several cases decided by the Supreme Court of the United States to the effect that an act of the Legislature can only be held unconstitutional in cases entirely free from doubt. Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch,

slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered void." Judge McDowell, among other things, says: "The Constitution in the words selected by its authors requires the entry of votes. In entering on the journal 'nay votes none,' the clerk is undeniably not entering nay votes. As the Constitution is silent concerning nay votes in cases where the only votes cast are yeas, we think the proper, if not the necessary, implication is that no entry concerning the nonexistent nay votes is required."

bonds for municipal purposes without the sanction of its citizens or taxpayers expressed in an election. Middleton v. City of St. Augustine, 42 Fla. 287, 29 South. 421, 89 Am. St. Rep. 227. Under section 8, art. 8 of the Constitution, this whole question was under the control of the Legislature, and we can discover in the act no interference with the vested rights of any one. See City of Miami v. Romfh, 63 South. 440.

[4] The next contention is that the bonds provided for in the ninth section of chapter 6415 are void for uncertainty of place of payment in New York, and that the bonds which The more recent case of Board of Com'rs are sought to be validated are not authorized of Town of Salem v. Wachovia Loan & Trust by law, inasmuch as the city council of JackCo., 143 N. C. 110, 55 S. E. 442, held: "The sonville, by the enactment of Ordinance L159, entries upon the Senate Journal give the undertook to supply a definite place for names of a large majority of the total mem- payment of the principal and interest of the bership of that body as voting for the pas- bonds, and designated the United States sage of this bill upon the second and third Mortgage & Trust Company of the city of readings, so that there can be no question of New York as the bank in said city where its passage by a constitutional majority. But such payments are to be made. The bonds the entries indicate further that the bill pass- sought to be validated are in the form proed by a unanimous vote, and that there were vided by the ninth section of the act of the no names to be recorded as voting in the Legislature, except that the place of payment negative." The entry in the journal which is as provided by the ordinance. The contenis referred to is as follows: "Senate Journal, tion is that the city council could not by orSenate Chamber, January 23, 1891. The bill | dinance change the form of the bond providpassed its second reading. Ayes 39, noes ed in the act. The act in section 9 states as follows: Then follows a list of that the bonds and coupons attached shall be those voting in the affirmative, without any in the following words and figures, and in reference to those voting in the negative. the form of the bond it is provided that "the The bill passed its third reading. Ayes 34, city of Jacksonville in the state of Florida • the bearer the sum of as follows: Then follows a list will pay to of those voting in the affirmative, with no one thousand dollars ($1,000.00) in gold coin further reference to those voting in the neg- of the United States at the office of the city ative." The court cites approvingly the case treasurer of the city of Jacksonville, or at a of Board of Commissioners of Onslow County bank in the city of New York designated v. Tollman, 76 C. C. A. 317, 145 Fed. 753, by the city of Jacksonville, with interest and overrules the case of Debnam v. Chitty, thereon," etc. 131 N. C. 657, 43 S. E. 3. We think it does not appear from the journal that on the final passage of the bill, which became chapter 6415, the requirements of section 17 of ar

noes..

......

ticle 3 of the Constitution as amended were

not complied with as to entering the vote in the journal; but, on the contrary, under the circumstances, proper entries of the votes were made, which show that the act was constitutionally passed.

[3] The next ground of the demurrer to the petition which is argued is that chapter 6237, Laws of 1911, under authority of which the petition was filed, is unconstitutional and void, because that in the third section thereof it confines the right of intervention to citizens of the state of Florida who may be residents in the county or municipality desiring to issue bonds; all other taxpayers and property owners are excluded from any right to contest the validity of the bonds sought to be issued. No authority is cited as sustaining this contention, and we know of none. Under section 8, art. 8, of the Constitution of 1885, the Legislature might have

*

Ordinance No. L159, Bill No. L241, recites that the board of port commissioners of the city of Jacksonville had passed a resolution designating the United States Mortgage & Trust Company, of the city of New York, as the bank in said city for the place of payment of the principal and interest of the city

of Jacksonville dock and terminal bonds, issue of 1913, and recommended that the form of the bonds and coupons, as prescribed in section 9 of chapter 6415 of the Laws of Florida, approved October 3, 1912, be amended as follows: After the words "at the office of the city treasurer in the city of Jacksonville, or at" strike out the words "a bank in the city of New York designated by the city of Jacksonville," and, in lieu thereof, insert the following, "The United States Mortgage & Trust Company in the city of New York, which is designated by the city of Jacksonville as the place of payment," and that said changes be made wherein the context requires. The ordinance recites that the city council has been requested by said board to pass an ordinance designating a bank in the city of New York for the payment of prin

the above change, "therefore be it ordained, that three men, Gaillard, Harrison, and Richby the mayor and city council of the city of ardson, constituted the board of election comJacksonville: Section 1." Without copying missioners. Only two of them, Gaillard and it, it is sufficient to state that the ordinance | Harrison, signed the certificate of the canmade the requested changes in the form of vass showing the result of the election. There the bond. Considering the powers conferred is no express provision of law that all the by sections 3 and 9 of the act, the city had members of this board should sign the certhe authority to designate the bank in New tificate. The certificate states that the three York where the payments were to be made, members met at the city hall and proceeded and did not exceed their authority in making to publicly canvass the vote. The board of the change referred to in the form of the election commissioners are required by secbond to carry out the purpose of the act. tion 2, c. 6415, Acts of 1912, to canvass and We do not think the facts in the case of Mid- declare from the said returns of the inspec dleton v. City of St. Augustine, supra, are tors and clerk of election the result of said similar to those in the instant case, and the election, etc., and it is therein provided that decision is therefore not applicable. said election shall in all respects be conduct[5] The next contention is that the valida-ed as nearly as may be in compliance with tion of the bonds should have been completed prior to March 1, 1913, the date from which the bonds will bear interest, and as of which the bonds must be executed. It is contended that, because of the form of the bond this language occurs, "In testimony whereof the city of Jacksonville has issued this bond bearing date 1st March, A. D. 1913," the validation should have been completed before that date; and, since that was not done, the decree entered June 24, 1913, validating the bonds, was unavailing. It is perfectly evident from the context that the word "issued" simply indicated one step in the preparation of the bonds for delivery, and does not exclude the idea that some other step might not also be taken. Potter v. Lainhart, 44 Fla. 647, text 673, 33 South. 251. The date March 1, 1913, indicates the date of execution from which the bond is to bear interest. We do not think that the terms of the act exclude the power of validation after March 1, 1913. The petition to validate was filed by the state attorney as soon as he was officially inform

ed of the election.

[6] The next contention is that "the coupons of the bonds are attempted to be made acceptable for taxes or other dues to the city of Jacksonville." It is contended on the one hand that this provision is equivalent to an attempt to authorize the city of Jacksonville to issue bills of credit or currency, and on the other that it creates an unlawful, unjust, and unconstitutional discrimination between classes of individuals who may be so fortunate as to possess some of these bonds, if they are ever issued, and that class who are not so fortunate, in the payment of taxes and dues to the city of Jacksonville. This question was settled adversely to the contention of the appellant in the Virginia Coupon Cas

es.

See Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962, 29 L. Ed. 185. No authorities are cited by appellant.

[7] The next contention is that the petition and contents of the exhibits fail to show that the board of election commissioners ever met, canvassed, declared, or certified the results of the election upon the question of issuing bonds.

the laws regulating the holding, returning, certifying, and canvassing of city elections. Two sections of the charter act of the city of Jacksonville make it the duty of the elec tion commissioners to meet at their office and publicly proceed to canvass the vote on the day following any election. Section 43, c 4498, Laws 1895, and section 7, c. 4301, Laws 1893. The certificate before us shows that the commissioners met the day after the elec tion and canvassed the returns. The further contention is that it does not appear that any notice of this meeting was given to Richardson, who did not sign the certificate, and therefore the act of the canvassing by two of the three commissioners was void. We think the statute itself gave each commissioner notice when to meet and canvass the election returns, and no other notice was necessary. The canvass was made by two of the commissioners, and the third commistice of the time required by law for the cansioner, even if not present, had statutory no

vass to be made. We think the certificate

shows a legal canvass of the vote.

It is contended that the certificates of the result of the election were executed merely by the two members of the board of election commissioners, and do not pretend to be the certificate of the board. We do not think this fact renders the certificate fatally defective. As a matter of fact and law, a quorum acted, all had statutory notice of the meeting, and their act was the act of the board. 23 A. & E. Ency. Law (2d Ed.) 366.

[8] Another objection to the decree is that it appears from the certificate signed by Harrison and Gaillard to show the result of the election was for some unexplained reason made from, and only from, the returns in the office of the city recorder, and not from the returns filed with the chairman of the board of election commissioners, as required by section 2, c. 6415, Acts of 1912. We find no error under this contention. Under the act, the returns were in duplicate, and both of equal dignity, authority, and probative force.

[9] The next contention by appellant is that chapter 6237, Laws of 1911, applies only