Davis v. Wilson & Toomer Fertilizer Co.

Per Curiam. A motion is made to dismiss the appeal herein because the appellants have not filed in this court ‘ ‘ a duly certified transcript of the record and two copies thereof,” as required by Rule 11 of the Supreme Court Rules, adopted March 2, 1905. The appellants had filed in this court “one original and one carbon copy of the transcript of the record,” and the carbon copy was sent to counsel for appellee as required by Chapter 8482, Acts of 1921; but the appellee in support of the motion to dismiss the appeal contends that the statute, Chapter 8482, is invalid because the title to the Act is fatally defective, and that as one “certified transcript of the record and tvro copies thereof” were not filed here as required by Rule 11, the appeal should be dismissed. Rule 11 of the Supreme Court Rules adopted March 2, 1905, is as follows: “In all civil causes, except habeas corpus eases, the plaintiff in error or appellant shall file in the Supreme Court within the time required by law a duly certified transcript of the record and two copies thereof, each of which shall be clearly and legibly typewritten or printed in black ink, and within the same time shall also serve the opposite party or his attorney with a type-written or printed copy of the certified transcript, preserving in each of the said copies provided for the pages and order in the transcript. Said copies need not be certified. Should the plaintiff in error or appellant fail to comply with the provisions of this rule the cause shall be dismissed on motion of the defendant in error or appellee upon the pro [104] duction of a certificate from the clerk of the court below', or from the judge if it have no clerk, that a writ of error or appeal has been sued out in such court, or upon producing proof that no copy of the transcript has been served upon the opposite party, or that copies have not been filed as required. The court may also of its owm motion dismiss the cause for failure to comply with this rule; but for good cause shown the court may allow further time to comply therewith. The statute referred to is as follows: “CHAPTER 8482 — (No. 87). AN ACT Relating to Preparation, Form and Filing of Transcript of Record in Civil Cases in the Supreme Court. “Be It Enacted by the Legislature of the State of Florida: “Section 1. The Clerk of the Circuit Court of the County, or the Clerk of the Court from which the appeal is taken, shall prepare or cause to be prepared a transcript of the record for the use on any appeal or writ of error sued out returnable to the Supreme Court, to be used in the prosecution of such appeal or writ of error, which said transcript shall consist of one original and two carbon copies to be bound and indexed, provided, that attorneys-at-law may prepare or cause to be prepared such transcript for certification by the Clerk. ‘ ‘ Sec. 2. The Clerk shall receive as compensation for preparation of the transcript the sum of twenty cents for the first one hundred words of the record and ten cents for each additional one hundred words or fraction thereof, and fifty cents for his 'certificate and where the transcript is [105] prepared by tbe attorneys for certification by him, shall receive two dolars and fifty cents for each one hundred pages or fraction thereof of the original record compared and verified and fifty cents for his certificate. “Sec. 3. Only one original and one carbon copy of the transcript of the record shall be required to be filed in the appellate court -in any case, and the original only need be certified by the Clerk. Upon the filing of such original and copy in the appellate court, the Clerk of same shall cause the carbon copy to be immediately mailed to the defendant in error or appellee, or his counsel, as now provided by rules of court. ‘ ‘ Sec. 4. All laws or parts of laws in conflict herewith are hereby repealed. “Sec. 5. This Act shall take effect upon its becoming a law. “Approved June 14, 1921.” The title of the Act, Chapter 8482, is misleading in that it has reference .to the preparation, form and filing of transcripts of record in the Supreme Court, while the main purpose as shown by the body of the Act is to change existing laws and rules of court as to the number of transcripts to be filed and the fees to be paid therefor, neither of which is expressed in the title of the Act. This renders the entire Act violative of Section 16, Article III of the Constitution and unenforceable on the principles stated in Webster v. Powell, 36 Fla. 703, 18 South. Rep. 441, if the Act is not .also invalid in that it is an undue and unauthorized encroachment upon the judicial powers of the court to regulate the number and form of transcripts that shall be filed in appellate proceedings, in view of Article II of the Constitution. [106] Chapter 8482, Acts of 1921, being invalid, it is the duty of the appellants to comply with Rule 11 above set out; but as the appellants were justified in obeying the statute while it apparently remained in force, this motion to dismiss the appeal will be denied and the appellants .will be allowed thirty (30) days to comply with the rule, by filing two. additional copies of the transcript. It is so ordered. Browne, C. J., and Taylor and Ellis, J. J., concur. Whitfield and West, J. J., dissent.