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Pay of Members of the Legislature-Dissenting Opinion of Westcott, J.

It is provided that the pay of the members of the Senate and House of Representatives shall be five hundred dollars per annum. What does this term "per annum" mean here? It will be noted that it occurs in a previous portion of the same section, wherein provision is made "that the salary of the Governor shall be five thousand dollars per annum," and it is obvious that the meaning of the words "per annum" in each connection mean precisely the same thing, and there is no reason in my judgment why we should look elsewhere to construct a new and different legislative year for purposes of pay; and especially is this so when the section to which you are referred is only in the Constitution to fix the number and time of the sessions of the Legislature, and has nothing to do with the pay of its members.

It is my opinion, therefore, that the pay of a member of the Legislature attaches and begins to run when he becomes subject to be called upon to perform legislative duties, in the same way that an officer's pay attaches upon his acceptance and qualification. The mode of drawing it I am inclined to think may be fixed by the Legislature in such manner and at such time as is consistent with this view of the Constitution.

I am therefore of opinion that no act or series of acts, the operation of which is to pay a member of the Legislature anything beyond the sum of five hundred dollars within the space of one year from the time he is subject to be called upon to perform legislative duties, is constitutional.

I am aware of the fact that another department of the government has with an almost unanimous voice given a different construction to the Constitution, and if I had any reasonable doubt in the matter, I would follow their construction; but as I am without doubt in the premises I am constrained to express that opinion which I feel sure is correct.

Respectfully

JAMES D. WESTCOTT, JR.,

Associate Justice Supreme Court of Florida.

SUPREME COURT, Tallahassee, Fla., Feb. 1st, 1869.

INDEX

TO THE

TWELFTH VOLUME OF FLORIDA REPORTS

ACTS-See statutes construed.

ALIMONY—

1. Ad interim alimony, or alimony pendente lite, as well as the allowance of a sum to the wife to enable her to prosecute her suit, are given not as of strict right in the wife. It is a matter for the sound discretion of the court, 434.

2. If no order awarding alimony pendente lite or counsel fees is made until after a decree for divorce, such an order under the statute should not be then made unless the nature of the case makes it "fit, equitable, and just." 434.

3. Where the wife has brought her case to a hearing before such an order is made, no allowance, either for alimony or costs of counsel, should be made where the case from the evidence and the pleadings is one in which she had no reasonable ground of suit. Underwood vs. Underwood, 434.

her

4. Where, upon the face of the bill, there is not sufficient alleged to justify a decree of divorce, the court should not, at any stage of the proceedings, allow to the wife means to compensate counsel to prosecute suit. A prima facie case must at least be made in her pleadings before such an order is passed, 450.

5. Permanent alimony is a continuous allotment of sums payable at regular periods. A gross sum of money given absolutely in full satisfaction, or a specific proportion of the husband's estate, cannot be given absolutely in full satisfaction of alimony. 450.

6. Before a decree for permanent alimony is passed, there should be testimony sufficient to form an intelligent basis for such an order. There should be such testimony as would enable the court, with reasonable tainty, to do justice alike to the parties. Phelan vs. Phelan, 450.

AMENDMENT

cer

1. The proceeding by information, in the nature of a quo warranto, is essentially a civil proceeding, and the pleadings in it are as much subject to amendment as they are in ordinary civil actions. It is criminal only in form. State of Florida vs. Wm. H. Gleason, 191.

Index to Twelfth Volume.

TAN

AMENDMENT-(Continued.)

2.

Where an attachment bond does not appear upon its face to be executed by the plaintiffs, their agent or attorney, as required by statute, the omission cannot be remedied by amendment. Work & Son vs. Titus, 628.

ANTECEDENT GRUDGE

was

1. Where an antecedent grudge has been proved, and there is no satis factory evidence to show that the wicked purpose had been abandoned, it must be clearly shown to the court and jury that the provocation great in order to warrant them in finding that the killing was on the re cent provocation, and not on the old grudge. Holland vs. The State, 118. (See title Criminal Law.)

APPEAL

1.

BLOME

Where a bill is taken pro confesso, and a final decree is passed under the statute, an appeal lies to this court under the practice in this State, and in all cases such an appeal opens for the consideration of this court the record prior to the default, 395.

2. Where there is no equity in the bill, or the case made shows a plain remedy at law, this court, in an appeal of this character, should direct the bill to be dismissed, though these questions are not raised in the pleadings. Freeman vs. Timanus, 393.

3. Under the statutes regulating appeals in chancery from final or interlocutory decrees, a bond is not necessary to perfect an appeal. The only result attending a failure to give bond under the statutes is, that the appeal does not operate as a supersedeas, 416.

4. Where an appeal is prosecuted from an interlocutory order or decree in chancery, under the act of 1853, if the bond is in a sufficient amount and so conditioned as to secure the appellee fully in his rights, as well as for all damages in the event the decree of the court below is affirmd, either in whole or in part, it is a sufficient bond. Kilbee & Barnes vs. Myrick. 416.

5. Where, upon bill filed, a decree of divorce a vinculo matrimonii, and of reference to master to report as to allowance for alimony, is passed upon the consent and agreement of the parties, an appeal from the order confirming the report when made, and fixing the alimony, opens for consideration under the statute of this State the decree of divorce, and though the parties may not desire to disturb the decree of divorce, it will be reversed if improperly granted. Underwood vs. Underwood, 434.

6. It is the imperative duty of the court to dismiss an appeal upon an application based on the production of the certificate of the clerk of the circuit court that an appeal has been obtained and a bond given, the copy of the proceedings in the court below not being filed, unless the party in default show some good cause for not having complied with the statute, 493.

7. What is "good cause" for an omission to file a copy of the record of proceedings with the clerk of the Supreme Court, after taking an ap

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