Opinion of Randall, C. J.-Session of Legislature.

JACKSONVILLE, FLA., November 15, 1875.

To his Excellency the Governor:

SIR: I have the honor to acknowledge the receipt, this day of your communication of the 8th instant, inquiring of the Justices of the Supreme Court whether there is "any authority for a regular session of the Legislature on the first Tuesday after the first Monday in January, 1876," since the adoption of the recent amendment of the Constitution prescribing biennial sessions.

I respectfully reply that the original section 2 of Article IV, which provided for annual sessions of the Legislature, having been abrogated by the amendment, and there remaining no provision anywhere for a regular session in January, A. D. 1876, such session would be unauthorized.

The original section provided that the Governor might convene the Legislature in extra session by his proclamation, and this provision is not changed, but is reiterated by the amendment.

If a session of the Legislature is to be held before 1877, it must be in virtue of such proclamation. I have the honor to remain, very respectfully,

E. M. RANDALL, Chief Justice.

TALLAHASSEE, FLA., November 9, 1875. His Excellency, M. L. Stearns, Governor of Florida, Tallahassee, Fla.:

SIR: I have before me your communication of this morning. Without stating or repeating the questions, I have the honor to reply:

There are many cases in which the letter of an act of the Legislature is made to yield to the spirit and intention of the law-making power. The rules to ascertain this spirit nad intention are, for the most part, simple in their nature. In this case, however, admitting the application of the rule

Opinion of Westcott, J.-Session of Legislature.

to changes in the organic law, the Legislature and the people have, by their action, left nothing to construction. To say that this section, as amended, which is the entire law, authorized a session in January, 1876, would be simple judicial legislation.

In all of the States in which the method of amendment here followed has been adopted, the unvarying rule is that nothing of the old section which is omitted from the new section as enacted, is, in the future,operative as law.

The very purpose of requiring the section, as amended, to be published entire, is to give certainty, by declaring the whole law, leaving nothing open for construction.

The Legislature and people, by expressly omitting all authority for a session in January, 1876, from the new section, and nothing but the new section being now operative as law, it follows, necessarily, that there is no constitutional sanction for any regular session until the first Tuesday after the first Monday in January, A. D. 1877.

Having had nothing to do with this amendment, I am, as a matter of fact, ignorant of the purposes of its author, if it was other than I have defined it, nor am I sufficiently advised of the opinions of the members of the Legislature to know what may have been their individual views.

As the section, as amended, retains the power of the Governor to call an extra session, this, as a matter of course, is within your Executive discretion.

Very respectfully,

JAMES D. WESTCOTT, JR., Justice Supreme Court of Florida.

VAN VALKENBURGH, J., assented.

INDEX.

INDEX

TO THE

FIFTEENTH VOLUME OF FLORIDA REPORTS.

ADMINISTRATORS-Presentment of accounts within two years-

PAGE.

Under a previous decision of this court it is not essential to the
validity of a notice by an administrator calling for the presentation
of claims against the estate of the intestate, that the precise time
fixed by law as the period within which claims should be pre-
sented should be stated. While the statute fixes the time of "two
years," such notice under this decision is sufficient if it calls for a
presentation "within the time prescribed by law." A decision fix-
ing a matter of practice of this character should not be reversed, ex-
cept for reasons of the most cogent character. May vs. Vann.

AMENDED BILL-Demurrer to-

......

To an amended bill the defendant has a right to interpose a new
demurrer, notwithstanding a previous demurrer to the original bill
has been overruled. Bowes vs. Hoeg..

AMENDMENTS-To complaint when allowed-

Where in an amended complaint a corporation is named a party
by the plaintiff, and upon its motion it is ordered to be made a
party defendant, both the plaintiff and defendant being heard upon
the motion, it is too late to insist that the defendant should have
intervened under the original complaint by petition to be examined
pro interesse suo. The only question, under these circumstances, is
whether this party has or claims an interest in the controversy ad-
verse to the plaintiff, or is a necessary party to a complete deter-
mination or settlement of the question involved. The State of
Florida et al. vs. J. P. & M. R. R. Company et al...

AMENDMENT-To a complaint under the Code relates back-How far-
Under the code, an amendment of a complaint relates back to the
commencement of the action.-Ib.......

APPEAL-Where a proper remedy instead of injunction-

553

403

201

201

Where an inferior court, after appeal and proper measure to se-
cure a stay of proceedings, continues to proceed, the proper remedy
is an appeal to the exercise of the power of the appellate court, and
not by injunction from a court of equity. Kahn vs. Kahn and Doll. 400