The opinion
Browne, J.,
dissenting.
On May 1, 1923, an election was held in Putnam County to determine whether - there should be created in that *360 county a special road and bridge district. On the 4th of May the election returns were canvassed, and showed that the election resulted in favor of creating the special road and bridge district.
On the 15th of May, 1923, a bill was introduced in the Legislature to validate the election held on May 1, 1923.
It is apparent to me, from, this, that sixty days notice as required by Section 21, Article III of the Constitution of Florida was not given.
The possibility, that sixty days’ notice may have been given of the intention to introduce a bill to vadidate an election that had not been held, may be within the realm of a vivid imagination, but is hardly within the realm of reason.
In the light of legislative action on special and local acts, the decision in Stockton v. Powell, 29 Fla. 1 , 10 South. Rep 688, has had the effect of giving judicial sanction and encouragement to the legislature to tear Section 21 of Article III to shreds and scatter it to the four winds of Heaven.
No member of the legislative, executive or judicial departments of the government believes that the constitutional notice of intention to enact local or special laws is given in a vast majority of instances. In fact every well informed member of these departments knows that it is a rare exception when it is done.
For the courts to adopt a presumption, which they know to be false, undermines justice which should be founded on truth..
Excessive credulity led'to the decision in Stockton v. Powell, supra, but it is carrying credulity to the point where it ceases to be the result of mental processes, to base a solemn judicial decision upon the supposition in this case, that perhaps some one gave notice of his intention *361 to apply to the Legislature to ratify an election that had hot been held — the residt of which was not known and could not have been known — and where if the election had gone against bonds, there would have been nothing to ratify.
In the case of Horton v. Kyle, 81 Fla. 274 , 88 South. Rep. 757 , we said that the presumption upon which the decision in Stockton v. Powell was based, “leads to a conclusion which we know is not so, and we are unwilling to extend it further by adopting another violent presumption,' — that notice was given of intention to do something at an extra session of the Legislature before it was known that there would be an extra session.”
In that ease, no one knew there would be an extra session of the Legislature in time to have given sixty days’ notice required by the constitution before the enactment of the law.
In the instant case no one knew how the bond election would result, in time to have given the sixty days notice required by the constitution, before the passage of the validating act.
The principle upon which the case of Horton v. Kyle was decided, I think controls in the instant case.
The doctrine that prevents the judiciary from determining whether Section 21 of Article III of the Constitution has been violated, is based upon the presumption that the Legislature obeyed that constitutional mandate. The same presumption, if applied to all legislative acts, would deprive the courts of power to declare any law unconstitutional when passed in defiance of the mandates of the constitution; a power so essential to the preservation of constitutional government.
The constitutional oath of a member of this court} is not *362 merely to obey the constitution, but “to support, protect and defend” it.
To “defend” means “to shield from attack,” and neither the decision in Stockton v. Powell, nor decisions in other jurisdictions, can relieve us of our obligation to defend the constitution from attack, from whatever source it may come.
I think, therefore, that so much, of Chapter 9582 of the Special Acts of the Legislature of 1923, as purports to validate a road and bridge election held only fourteen days before the introduction of the bill, is null and óf no effect, it having been passed in violation of Section 21 of Article III of the Constitution.
Ellis, J., concurs in this dissent.