I do not know just what form the appropriate final order will take, but I agree that the motion for a peremptory writ notwithstanding the answer should be denied.

The views expressed by the learned Circuit Judge, Honorable Ira A. Hutchinson, in the case of J. Van Wilhite v. Porter,et al., as members of the Board of County Commissioners of Bay County, contained in an opinion delivered by him in that case, and a copy of which is attached to the answer of respondents in this case, are, in my opinion, sound particularly as they relate to the alleged enactment by the Legislature of 1925 of House Bill No. 116, Chapter 11425, Acts of 1925, a special Act passed at an extraordinary session of the Legislature.

The decision in Horton v. Kyle, 81 Fla. 274, 86 So.2d Rep. 757, was followed in Williams v. Dormany, 99 Fla. 496, 126 So.2d Rep. 117, in which case the court held that *Page 727 Chapter 11541, Laws of 1925, Special Session, came within the rule stated in Horton v. Kyle, supra, and was void. The Court speaking through Mr. Commissioner DAVIS said: the Act "never became effective because of non-compliance with constitutional requirements with reference to notice for the passage by the Legislature of local or special bills, Chapter 12864 (Laws 1927, Special Session) was, as stated in Horton v. Klye, supra, 'ineffectual to put life in the corpse.' "

In each case it was stated: "There was no way in which a member of the extra session or any one else in the State could have known that the Legislature would be called together in extra session prior to the Governor's proclamation." In the Dormany case, supra, the Court said: "The calling of the extraordinary session by the Governor was not known in time to make the required publication of the notice with reference to local or special laws before the approval of the Act in question."

The proclamation for the Special Session of 1925 was dated November 2nd; the session was convened on the 17th day of the same month, and adjourned on November 25th, 1925.

The Constitution provides that the Governor may convene the Legislature in extra session by his proclamation; that no special session convened by him shall exceed twenty days. Art. III, Sec. 2, Constitution 1885.

No special bill may be passed by the Legislature unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice must state the substance of the "contemplating law, and shall be published at least sixty days prior to the introduction into the Legislature of such bill, and in the manner to be provided by law. The evidence that such notice has been published shall be *Page 728 established in the Legislature before such bill shall be passed." Art. III, Sec. 21, Constitution.

The above clauses of the Constitution were in force when Chapter 11425, supra, was attempted to be passed.

The amendment proposed in 1927 and adopted in 1928 prescribed the evidence by which a notice of intention to apply for special legislation should be established in the Legislature. That amendment was, of course, not in effect in 1925 when Chapter 11425, supra, was attempted to be passed. The evidence of a publication, however, was required by the Constitution to be established in the Legislature of 1925 when Chapter 11425,supra, was proposed. Under this clause, Article III, Section 2, Constitution, the Legislature was not required to cause to be entered upon its journals any affirmative showing that a notice of local or special bills had been properly published. See Rushton v. State, 58 Fla. 94, 50 So.2d Rep. 486.

The reason being that as members of the Legislature were under oath to support the Constitution and laws of the State they were presumed to have had the evidence of such publication established before attempting to pass the proposed special bill. A declaration on the journal affirmatively showing that a notice was published sixty days before the special bill was proposed adds no force to the presumption under the Constitution that the Legislature had observed the requirement. Such an entry is a mere declaration that the Legislature has observed the requirements of the Constitution, which under the Constitution it is presumed to observe.

In the case of State, ex rel. Bliss v. Blitch, 100 Fla. 809, 130 So.2d Rep. 444, the Court stated that the Act under consideration in that case was not in the class of laws enumerated in Section 20, Art. III, prohibiting the passage of special or local laws, which class under Section 21 "shall *Page 729 be general and of uniform operation throughout the State." It was treated as a local law, although the establishment of a criminal court is a mere addition to the judicial system of the State which the Legislature "may from time to time ordain and establish." Art. V, Sec. 1, Constitution.

It is very doubtful whether a law establishing a criminal court is forbidden to be enacted without first establishing in the Legislature evidence of a notice of intention to apply for such law. The establishment of a court anywhere is a matter of general and public interest, a building of the State's judicial system, and the reason for a notice required in other special or local legislative proposals does not lie.

The evidence of notice in the instant case, as well as in the Blitch case, supra, is of no probative value further than a mere declaration that a notice was published. No facts are given as to when the notice was published, during what periods, and the place where and the means by which it was published.

The reason why the Governor by his proclamation calls an extra session within sixty days may be to obviate the possibility of necessity of considering special or local bills of the kind of which notice is required to be given. To hold that a person interested in special legislation may publish a notice at any time and await the calling of a special session, if by chance it may be called, or to publish a notice and then let it lie dormant during a general session to call it up at a special session that may thereafter be called is to defeat the purpose of the Constitution and refute the doctrine in Horton v. Kyle and Williams v. Dormany, supra.

So it is obvious that there must be some modification of the statement that a mere entry on the Legislative journal of the publication of a notice is sufficient evidence to satisfy the requirements of the Constitution. *Page 730