Opinion
Order Entered January 25, 1936.
A case of original jurisdiction — mandamus.
D.H. Redfearn, R.H. Ferrell, Thomas H. Anderson, H.H. Eyles and E.F.P. Brigham, for Relator;
Cary D. Landis, Attorney General, H.E. Carter, Assistant, Cockrell Cockrell, Francis P. Fleming, E.J. L'Engle, L.R. Milton, P.H. Odom, Erskine W. Landis, Frank D. Upchurch and Henry E. Williams, for Respondents.
The alternative writ of mandamus in this case contains a command reading as follows:
"THEREFORE, these are to command you, the said Robt. W. Davis, as Secretary of the Senate of the State of Florida, that you do correct and revise the Journal of the Senate of the State of Florida for May 31st, 1935, by expunging therefrom the statement that said Senate adjourned at 12 o'clock in the daytime on May 31, 1935, by expunging therefrom all recitals that said alleged Chapter 17085, being Senate Bill number 4, was engrossed, enrolled and signed by the President of said Senate and by you as Secretary of said Senate and presented to the Governor of the State of Florida before midnight on May 31st, 1935, and that you, also, further revise and correct said Journal for May 31st, 1935, by expunging therefrom all recitals that the attempted confirmation by the said Senate of persons to be judges of the circuit court of the 11th judicial circuit did occur on said Friday, May 31st, 1935, at any time during said day, and before the hour of midnight on said day; and you, the said Weldon G. Starry, as Chief Clerk of the House of Representatives of the State of Florida, that you do correct and revise the Journal of said House for May 31st, 1935, by expunging therefrom the statement that said House adjourned at 12 o'clock in the daytime on May 31, 1935, and by expunging therefrom all recitals that said alleged Chapter 17085, being Senate Bill number 4, was engrossed, enrolled, and signed by the Speaker of said House and by you as Chief Clerk of the said House and presented to the Governor of the State of Florida before midnight on May 31st, 1935; or that you, and each of you show cause before this Court on the 10th day of December, 1935, at 10 o'clock A.M., why you should not be commanded so to do."
Insofar as the command of the alternative writ embraces a direction to the respondent Robt. W. Davis, as Secretary of the Senate, to expunge from the Senate Journals recitals concerning the appointment and confirmation of Circuit Judges of the Eleventh Judicial Circuit on May 31, 1935, the alternative writ is too broad, in that it thereby undertakes to embrace in one and the same proceeding matters concerning the records of the Senate as a participant in the executive function of making appointments to the office of Judge of the Circuit Court, with matters which relate solely to the function of the Senate as a part of the legislative department of the government.
Moreover, if Chapter 17085, Acts 1935 (Senate Bill No. 4) was validly enacted prior to the final adjournment of the 1935 regular session of the Legislature on or before May 31, 1935, it repealed the law under which relator is shown to have been appointed and confirmed for a term that had expired as an additional Judge of the Eleventh Judicial Circuit of Florida. Therefore so long as that Chapter stands unimpeached, relator in this case is without a justiciable interest in having the Senate Journals relating to appointments and confirmations of Judges of the Eleventh Judicial Circuit altered, amended or revised in the particulars herein prayed.
The alternative writ of mandamus is quashed with leave to amend to conform to the foregoing holding.
WHITFIELD, C.J., and ELLIS, TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.