Opinion
Opinion filed March 1, 1933.
A writ of error to the Circuit Court for Hillsborough County, L. L. Parks, Judge.
C. B. Parkhill, State Attorney, and Wm. L. Pencke, for Plaintiff in Error; L. D. McGregor, for Defendant in Error.
The writ of error herein was allowed and taken under the statute from a final order discharging a petitioner in habeas corpus proceedings before a Circuit Judge in Hillsborough County.
Petitioner was held in custody pursuant to a conviction under Chapter 12197, Acts of 1927, entitled "An Act regulating the practice of Podiatry; providing for the examination and licensing of Podiatrists and penalties for violation of this Act;" and the discharge of petitioner followed an adjudication that the Act is invalid because it had not been duly passed by each House of the Legislature as is required by Section 17, Article III of the Constitution.
When the validity of a statute is challenged on the ground that it had not been passed by both the Senate and the House of Representatives, the legislative journals afford the controlling evidence.
The Senate Journal of 1927, page 2044 shows the following:
"Senate Bill No. 87:
"A bill to be entitled An Act regulating the practice of Podiatry; providing for the examination and licensing of Podiatrists and penalties for violation of this Act.
"Was taken up and was read the second time in full.
"Mr. Wagg moved that the rules be waived and that Senate Bill No. 87 be read the third time in full and put upon its passage.
"Which was agreed to by a two thirds vote.
"And Senate Bill No. 87, with title above stated, was read the third time in full.
"Upon call of the roll on the passage of the bill the vote was:
"Yeas — Mr. President; Senators Caro, Cobb, Dell, Etheredge, Cary, Gillis, Glynn, Hodges, Jennings, McCall, Malone, Mitchell, Overstreet, Phillips, Putnam, Smith, Swearingen, Taylor (11th Dist.), Turner, Wagg, Walker, Waybright — 23.
"Nays — None.
"So the bill passed, title as stated.
"And the same was ordered to be certified to the House of Representatives under the rule."
The House Journal of 1927 shows the following, pages 3876-7:
"Senate Bill No. 87.
"A bill to be entitled An Act regulating the practice of pediatry; providing for the examination and licensing of Pediatrists and penalties for violation of this Act.
"Was taken up.
"Mr. McKenzie (Lake) moved that the rules be waived and that Senate Bill No. 87 be read a second time by its title only.
"Which was agreed to by a two-thirds vote.
"And Senate Bill No. 87 was read a second time by its title only.
"Mr. McKenzie (Lake) moved that the rules be further waived and that Senate Bill No. 87 be read a third time in full and put upon its passage.
"Which was agreed to by a two-thirds vote.
"And Senate Bill No. 87 was read a third time in full.
"Upon call of the roll on the passage of the bill, the vote was:
"Yeas — Mr. Speaker; Messrs. Andrews (Orange), Andrews (Union), Auvil, Bales, Bell, Bonifay, Booth (Frank J., Pinellas), Bryant, Bullard (Polk), Bullard (Walton), Burns, Byrd, Carr, Carn, Carroll, Catts, Christian, Churchwell, Collier, Corry, Conely, Creel, Crews (Duval), Davidson, Edwards, Ellis, Ezell, Farnell, Frisbee, Getzen, Hagan (Seminole), Hagan (Waukulla), Harper, Harris, Hendry (Taylor), Hobson Householder, Jackson (St. Johns), Jackson (St. Lucie), Kanner, Kennedy, Ketchum, King, Lewis, Lowe, Millinor, MacKenzie (Lake), McKenzie (Putnam), McKenney, O'Neil, Oliver, Perry, Philips, Register, Sale, Scofield, Smith, Stalnaker, Stephens, Thomas, Tervin, Warran, Wilson, Wynn — 65.
"Nays — None.
"So the bill passed, title as stated.
"And the same was ordered certified to the Senate."
It is not shown that the quoted entries in the House Journal were questioned or in any way changed or amended.
It thus appears that the Senate passed Senate Bill No. 87 regulating the practice of Podiatry, while the House passed Senate Bill No. 87 regulating the practice of Pediatry, the two words having essentially different meaning.
After giving the vote showing final passage by the House of Senate Bill No. 87 regulating the practice of Pediatry, the House Journal states: "So the bill passed, title as stated." Such entries do not appear to have been changed by any entry in the House Journal.
As the House Journal shows that Senate Bill No. 87 as passed by the House and a title essentially different from the title to Senate Bill No. 87, which the Senate Journal shows was passed by the Senate, the bill referred to in the Journals as Senate Bill No. 87 which was approved by the Governor and published as a statute did not become a law.
Affirmed.
DAVIS, C. J., and TERRELL, BROWN and BUFORD, J. J., concur.