I concur with Mr. Justice TERRELL that the decree of the court below in this case should be affirmed, and I also concur in what he had to say in his opinion with reference to the general purposes of Chapter 21820, Acts of 1943, which Act enlarges the scope of its predecessor Chapter 7857, Acts of 1919 (62.09 F. S. 1941).

But I must say that when, soon after its enactment, I first read Chapter 21820, Acts of 1943, I was impressed with the apparently almost unlimited scope of the act, and was reminded of the words of one of Shakespeare's characters who said: "Give me a charter as wide as the wind, to blow on whom I please." However, upon further study of the statute I became convinced of its usefulness if properly construed; that is, if it is so construed as not to conflict with constitutional principles.

We must not forget that Article II of our constitution divides the powers of the State of Florida into three grand divisions, the legislative, the executive and the judicial departments. And both our national and State constitutions guarantee that no person shall be deprived of his life, liberty or property but by due process of law, which latter term embraces of course due notice and an opportunity to be heard.

The power vested in the courts by Article V of the constitution is judicial power. In Section 11 of Article V the Circuit Courts are given exclusive jurisdiction in all cases at law and in equity, not cognizable by inferior courts, and "of such other matters as the legislature may provide." But, as was said by Mr. Justice ELLIS in Barnett v. Green, 97 Fla. 1007, *Page 33 122 So. 570, 69 A.L.R. 244, "such other matters must be justiciable; that is, such matters as are capable of being adjudicated by the judicial power." And he added that: "The judicial power of the State extends to all controversies justiciable in their nature."

In 16 Am. Jur. page 282, it is said:

"Sec. 9. Real Controversy as Prerequisite. — It is well settled that a proceeding for a declaratory judgment must be based upon an actual controversy. The Federal Declaratory Judgments Act and some of the state acts so provide; but even in the absence of any express provision to this effect, a similar limitation is generally implied and observed by the courts both in America and in England. No proceeding lies under the declaratory judgment acts to obtain a judgment which is merely advisory or which merely answers a moot or abstract question.

"Sec. 10. — What Constitutes a Controversy. — The term 'actual controversy' has been given a broad construction by the English courts. Generally speaking, a controversy which will justify a court in entertaining a suit under a declaratory judgment must be something more than a mere difference of opinion or a mere theoretical question. It must be justiciable, and this implies a state of facts involving persons adversely interested in matters in respect of which a declaration is sought. Moreover, the interest of the parties arising out of their relationship to each other and to the subject matter of the controversy must be more than merely general. It must be a substantial present interest in the relief sought and such that the judgment or decree will operate as res judicata as to them and be of practical help in terminating the controversy. On the other hand, it is clear that to constitute an actual controversy so as to render these acts applicable, there need not exist an actual right of action on one party against the other in which consequential relief might be granted.

"In a number of cases it has been held and in others intimated that the appearance of 'ripening seeds of a controversy' is sufficient. Within this rule the 'ripening seeds of a controversy' appear where the claims of the several parties in interest are present and indicative of threatened litigation in *Page 34 the immediate future which seems unavoidable, even though the differences between such parties as to their legal rights have not yet reached the stage of an 'actual controversy', which involves the active pressing of the claim on the one side and active opposition thereto on the other. The rule has been laid down broadly that a claim of a legal or equitable right on the one hand and its denial on behalf of an adverse interest constitute a case for proceeding for a declaratory judgment. Numerous examples of particular sets of facts which have been held to be, or not to be, such a controversy as will sustain a proceeding for a declaratory judgment will be found in later sections of this article."

The constitution of Florida only gives to the Governor of the State the right to request advisory opinions from the Justices of this court, and that right is limited to questions arising as to his powers and duties under the constitution. The differences between a declaratory judgment and a purely advisory opinion is that the former is a binding adjudication of the rights of the parties, even when unaccompanied by the issuance of process to enforce such rights.

We may be sure that it was not the intention of the legislature, in adopting our present declaratory judgment act, to authorize or require the judiciary to give free legal advice to any party requesting it, nor to practice law without a license. In Denver v. Lynch, 92 Colo. 102, 18 P.2d 907, 86 A. L. R. 907, it was held that the Colorado declaratory judgments act was not intended to repeal the statute prohibiting judges from giving legal advice, or to impose the duties of the legal profession upon the courts, or to settle mere academic questions.

In the case of Sheldon v. Powell, 99 Fla. 782, 128 So. 258, Mr. Justice TERRELL wrote an able opinion construing the general scope and purpose of our first declaratory judgments act, in which he pointed out its advantages and also some of its limitations. The scope of that act was narrower than that of the present act, but much that was said in that opinion is applicable to a proper construction of the present act. The opinion in Sheldon v. Powell was quoted with approval by Mr. Justice SEBRING in the recent case of Sample v. Ward, *Page 35 156 Fla. 210, 23 So. 2d 81. In that opinion, it was said: (referring to section 62.09 F.S. 1942.)

"Under this section of the statute it is not necessary that there be an 'actual controversy' before an equity court may take jurisdiction of a suit to construe a deed, will, contract in writing, or other instrument in writing, and declare the rights of persons interested thereunder. If the question raised in such suit is real and not theoretical, the person raising it has a bona fide interest under the writing, and there is a defender or defenders with a bona fide right to defend, the court in which the suit is brought will not be held in error in assuming jurisdiction and rendering a declaratory judgment, even though there be no 'actual controversy.' Sheldon v. Powell, 99 Fla. 782, 128 So. 258."

It was also held in Sheldon v. Powell that the rendition of a declaratory decree is no less a judicial act when made before the right in question is invaded, and no consequential relief is sought or given, but that the act does not fit every occasion, and does not call for the scrapping of the balance of the system of action and remedies.

The present act, Chapter 21820, in Section 11, states that "its purpose is to settle and afford relief from insecurity and uncertainty with reference to rights, status and other equitable or legal relations." The language of that section, and of sections 1 to 5, is very broad, but much of the apparent danger is eliminated by section 10, which reads in part as follows:

"When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceedings."

In many of the appeals which come to this court, I have noticed that the plaintiff's bill unnecessarily prays for a declaratory decree and then goes on to allege facts making out a complete case for some well settled equitable relief, independently of the declaratory judgments act, winding up with an appropriate prayer for specific equitable relief, such as injunction, impressment of a lien, foreclosure, specific performance, rescission, cancellation, and the like, which was the real object of the bill. Although the case made by the *Page 36 bill and answer might have required the construction of a contract, deed, or other instrument in writing, or the validity of its execution, in order to determine the equities as between the parties and the adjudication of the existing suit, brought to redress some wrong or enforce some right, courts of equity had that jurisdiction long before declaratory judgment acts were even thought of. In other words, where there is an existing actual controversy between the parties to a real suit in equity, it is seldom if ever necessary to invoke the declaratory decree act. Perhaps this is some times done, in an abundance of caution, in cases where the plaintiff is in some doubt as to the equities of his case without invoking the declaratory judgment act.

Another principle adverted to in Mr. Justice TERRELL'S opinion in Sheldon v. Powell is that instead of this Court prescribing rules for the governance of proceedings under the act, authorized by the act then in effect, it would be safer for this court to follow the practice adopted by the English and New York courts "of exercising its discretion sparingly and with caution and by a gradual process of judicial inclusion and exclusion define the manner in which its discretion will be exercised in these matters." In view of the very broad language of the present act, this need for caution is all the more important. While the act might be given a liberal construction (as the act itself provides) as to those purposes of the act which are justiciable in their nature, and which can be dealt with properly by the judicial branch of the government, it should be cautiously construed whenever any conflict with fundamental constitutional principles appears, either in the language of the statute or in the attempted application of it to the facts of any particular case. Nor should it be so broadly construed as to make it a procedural juggernaut which would ride down and crush out other valuable well defined and time-proven equitable and statutory remedies. See in this general connection, 16 Am. Jur. Pages 287-288, and 295 et seq.; Borchard on Declaratory Judgments, pp 145, 156.

For these reasons, I think this act should be cautiously applied and construed, as was done in this case.

CHAPMAN, C. J., and SEBRING, J., concur.