
    STATE DEPARTMENT OF PUBLIC WELFARE v. MELSER.
    Supreme Court of Florida, en Banc.
    June 5, 1953.
    On Rehearing Jan. 5, 1954.
    David J. Lewis, Jacksonville, for appellant.
    Whitaker Brothers, Tampa, J. Lewis Hall, Tallahassee, for appellee.
   MATHEWS, Justice.

This is an appeal from a filial decree in a suit brought under the provisions of F.S. Chapter 87, F.S.A., providing for declaratory decrees. The final decree, among other things, contained the following:

“It is further Ordered that all rules,' regulation's and policies under which the defendant, State Department of Public Welfare, a corporation, is administering the social welfare act, Chapter 26937, Laws of Florida, Acts of 1951 [F.S.A. § 409.01 et seq.], including the rule or regulation attached to and made a part of the bill of complaint, under and by which said rules, regulations or policies the said defendant, State Department of Public Welfare, a corporation, is allowing up to $12.00 per month to recipients under said Act of public assistance for prescriptive medicines, when purchased by recipients under prescriptions only when written by medical or Osteopathic doctors, are discriminatory, arbitrary and invalid insofar as they exclude payment to recipients for. medicines under prescriptions written and furnished by Naturopathic physicians. The said defendant, State Department of Public Welfare; a corporation, is hereby specifically enjoined and restrained from continuing thi . arbitrary discrimination against Natui ipathic physicians, and is hereby requi? d to recognize and pay to recipients of public assistance, moneys for prescriptive medicines when written by Naturopathic physicians-in the same manner and to the same extent as it recognizes, honors, and pays for same when written by medical doctors or Osteopaths.
“It is further Ordered that in the administration of said social welfare act, the said defendant, State Department of Public Welfare, a corporation, is hereby further enjoined and prohibited from refusing to accept and recognize certificates of Naturopathic physicians in- any and all matters wherein Chapter C5937, Laws of Florida, Acts of 1951, provide for examinations and certificates by'physicians or doctors, and said defendant is hereby required to honor certificates and pay for all services authorized by said act, or any rule or regulation, when rendered by Naturopaths within their authorized field of practice under Florida law, to the same extent 'as when rendered by medical doctors or Osteopaths.”

Prior to the final decree the Chancellor rendered an opinion, which appears to be the basis of his final decree. In the opinion he stated:

“ * * * By action of the Legislature the plaintiff in this case is a ‘physician’ and entitled to act as such ■in. prescribing medicines, which prescriptions shall be honored by the defendant or other similar welfare agencies. When such agencies are of the opinion that in particular instances the prescriptions or services of a naturo-pathic physician are not completely adequate or satisfactory, then another or different type of physician can be called in, but the agencies cannot arbitrarily exclude all naturopathic physicians from their legal rights to serve members of the public and to be accorded at the hands of such agencies equal treatment with practitioners of other schools insofar as the field of their practice is concerned.”

It will, therefore, be noted that the Chancellor placed great significance upon the word “physician” and bottomed his opinion and final decree upon the definition of this word “physician” contained in the statutes. This definition is given in subsection (2) of Section 1 of Chapter 16087, Laws of Florida 1933, F.S.A. § 398.01 et seq., which was “An Act to regulate the manufacture, sale, possession, control, prescribing, administering, dispensing, compounding, mixing, culti-. vation and growth of narcotic drugs in the State of Florida, to define certain words and phrases as used in this Act * * *.”

The title of F.S. Chapter 398, F.S.A., is: “Uniform Narcotic Drug Law”.

F.S. Section 398.01, F.S.A., is as follows :

“This chapter may be cited as the uniform narcotic drug law.”

F.S. Section 398.02(1), F.S.A., which is a part of the “Uniform Narcotic Drug Law”, is as follows:

“(1) ‘Physician’ means a person authorized by law to practice medicine in this state and any other person authorized by law to treat sick and injured human beings in this state and to use, mix or otherwise prepare narcotic drugs in connection with such treatment.” (Emphasis supplied.)

In order for a naturopathic practitioner to be a “physician” for the purpose of prescribing narcotic drugs, he must be: first, “a person authorized by law to practice medicine in this state”; and if he is not authorized to practice medicine; then second, “any other person authorized .by law to treat sick and injured human beings in this 'state”; and in addition to being such a person above mentioned in the first or second classification, he must also be; third, authorized by law “to use, mix or otherwise prepare narcotic drugs in connection with such treatment.”

F.S. Section 462.01, F.S.A., defines “naturopathy” as follows:

“For the purpose of this law natureo-pathy and naturopathy shall be construed as synonymous terms and are hereby defined to mean the use and practice of psychological, mechanical and material health sciences to aid in purifying, cleansing and normalising human tissues for the preservation or restoration of health, according to the fundamental principles of anatomy, physiology and applied psychology, as may be required. Naturopathic practice employs, among other agencies, phytotherapy, dietetics, psychotherapy, suggesto-therapy, hydrotherapy, zone therapy, bio-chemistry, external applications, electro-therapy, mecháno-therapy, mechanical and electrical appliances, hygiene, first aid, sanitation and helio-therapy * ' * (Emphasis supplied.)

In order to eliminate any doubt as to what a “naturopathic” practitioner could not do, the Statute 462.01, further provides:

“ * * * that nothing in this chapter shall be held or construed to authorize any naturopathic physician licensed hereunder to practice materia medica or surgery or chiropractic, nor shall the provisions of this law in any manner apply to or affect the practice of osteopathy, chiropractic, Christian science, or any other treatment authorized and provided for by law for the cure or prevention of disease and ailments.” (Emphasis supplied.) ■

It should be observed that a naturo-pathic practitioner may use psychological, mechanical and material health sciences to aid in purifying', cleansing and normalising human tissues for the preservation or restoration of health. He is not authorized “to practice medicine” or “to practice ma-teria medica or surgery or chiropractic”. He is authorized “to treat sick and injured human beings” — “only for the purpose of purifying, - cleansing and normalizing human tissues,” and in so doing is limited -to the use and practice of “psychological, mechanical 'and material health sciences.” To use, mix or- otherwise -prepare narcotic drugs is directly connected with the practice- of materia medica or surgery or chiropractic, and therefore, one licensed' to engage in the practice of naturopathy under the Act is not authorized to use, mix or otherwise prepare narcotic drugs.

In a well reasoned opinion in the case of Perry v. Larson, 5 Cir., 104 F.2d 728, 730, which construed the Florida “Uniform Narcotic Drug Law”, it was held that a naturopath was not authorized to prescribe narcotic drugs. In that opinion Judge Sib-ley, speaking for the United States Court of Appeals for the Fifth Circuit, said:

“But it is argued that the statute expressly allows phytotherapy, which means the use of plants to heal, and that these ’ narcotics are derived from poppy plants and cola leaves. But so are aconite and belladonna, also powerful drugs, derived from plants. Although such drugs are of plant origin, their prescription is not the phytother-apy meant, but is the use of materia medica reserved to the practitioner of medicine and denied to the naturopathic practitioner. The medical terms used in the statute in describing na-turopathy are strange to common speech, and the proviso which follows and limits them must be given controlling effect. ‘The office of a proviso, generally, is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some possible ground of misinterpretation of it, as extending to cases not intended by the legislature to be brought within its purview.’ ”

We are not unmindful of the affirmance by the Court without opinion of the case of In re Complaint of Melser, 160 Fla. 333, 32 So.2d 742, in which case the Circuit Judge had held that a licensed naturopathic practitioner may prescribe narcotic drugs. Chapter 398, Florida Statutes, F.S.A., should be construed as a whole and not by isolated sections. It does not appear from the records on file in this Court in the case of In re Complaint of Melser, supra, that Sections 398.04 or 398.08, Florida Statutes, F.S.A., were called to the attention of the Circuit Court or this Court, or were considered in the opinion in that case. The prohibition contained in 'Section 398.04 that “No person shall manufacture, compound, mix * * * narcotic drugs” without a license so to do is expressly stated to be not applicable to “a registered physician, dentist or veterinarian in the course of his professional practice”. Section 398.08 specifically names those who “may prescribe * * * narcotic drugs,” and a naturopath is not one so named. Section 398.03 reads as follows: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.” A naturopath is not one authorized to manufacture, mix, compound or prescribe narcotic drugs in said Chapter 398. Wherever the opinion in In re Complaint of Melser, supra, may be considered to be in conflict with this opinion, the same is specifically receded from.

The doctrine of stare decisis does not apply in this case. In the case of State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6, in an opinion by Mr. Justice Terrell, this Court said:

“* * * It is not out of place to say in this connection that no decision is authority on any question not raised and considered, although it may be involved in the facts of the case.”

In the case of State ex rel. Garland v. City of West Palm Beach, 141 Fla. 244, 193 So. 297, 298, in an opinion by Mr. Justice Terrell, the Court said:

“We were not unmindful of our holding in these cases when we promulgated our opinion in this case which we do not consider to be in conflict with the last cited cases. For one case to have the effect of overruling another, the same questions must be involved; they must be affected by a like state of facts and a conclusion must be reached in hopeless conflict with that in the former case.”

In 21 C.J.S., Courts, § 186(c), p. 299 of the text, the author says:

“c. Decision without Full Argument of Point — A decision is, generally, not a precedent as to a point which was not sufficiently argued and presented to the court, although if the point was an essential one the fact that it was duly presented and considered may be presumed. An affirmance without an opinion is not an approval of the opinion of the lower court; and an af-firmance by consent of parties creates no binding precedent.
*****
“An affirmance without an opinion is an approval only of the point decided or result reached by the court below, and not of the opinion and the conclusions of law of the lower court, so as to establish a precedent for future action.”

We hold in this case:

(1) That there is nothing in Section 398.02(1) F.S., as construed in connection with F.S., Section 462.01 F.S.A., that confers any power upon a licensed naturopathic practitioner to prescribe narcotic drugs. To hold otherwise would completely nullify F.S. Section 398.08, F.S.A. This section is a part of the “Uniform Narcotic Drug Law” and it specifically named the persons who “may prescribe, administer, dispense, mix, or otherwise prepare narcotic drugs” in the course of his professional practice to be: (1) a physician or a dentist, (2) a veterinarian, and (3) any person who has obtained from a physician, dentist, or veterinarian any narcotic drug for administration to a patient during the absence of such physician, dentist, or veterinarian. The doctrine of inclusio unius est exclusio alterius applies to the “Uniform Narcotic Drug Law.”

(2) Even if the definition of the word “physician” contained in F.S. Section 398.-02, F.S.A., could be construed as authorizing the appellee to prescribe narcotic drugs, such word has reference only to the “Uniform Narcotic Drug Law,” and not so as to classify appellee as a “physician”'for the practice of materia medica or surgery or chiropractic, or as a “physician” for all purposes.

As an example of a duty imposed by law upon the appellant in this case, Section 15 of Chapter 26937, Laws of Florida 1951, F. S.A., provides for assistance to dependent children. Subsection (2) of Section 15 of. Chapter 26937, Laws of Florida 1951, F.S. A., provides as follows:

“Provided, however, that if aid to dependent children shall be claimed or applied for on the ground of physical or mental disability of parent or other person liable for the support of the dependent child, such aid shall not be granted unless the parent or other per.son liable for the support of the1 child be examined by a physician and a certificate of disability shall be signed by said physician and filed with the department. Where such physician certifies to the disability of the parent or other person liable for the support of the dependent child, re-examination as to disability shall be made annually, if said disability is not obvious, and aid to the dependent child shall be discontinued if at any such examination a physician shall certify that the parent or other person liable for support of the child is able to provide such support.”

With reference to payments for medical services as to dependent children and to the aged, the law makes no provision for payment for such services. The appellant does prepare a budget in the exercise of its discretion setting forth the needs of recipients, which budget may include items for clothes, groceries, shelter, drugs, dental, surgical or medical services. The appellant makes no payment whatsoever directly to the grocer, the butcher, the drug store, the ’dentist, surgeon, physician, or the clothing store. The payment is made to the recipient. If the recipient is dissatisfied, he or she has the right of appeal and to have a fair hearing. This is not a complaint from a recipient. The statute with reference to naturopathy, F.S. Section 462.01, F.S.A., among other things, provides:

“ * * * that nothing in this chapter -shall be held or construed to authorize any naturopathic physician licensed hereunder to practice materia medica or surgery or chiropractic, nor shall the provisions-of this law in any manner apply to or affect the practice of osteopathy, chiropractic, Christian science, or any other treatment authorized and provided for by law for the cure or prevention of disease and ailments.”

It is, therefore, obvious that the statute recognizes a clear distinction between various classes of practitioners. Certainly,' the appellant in the exercise of a sound discretion may recognize such a distinction. One case may. require the services of an orthopedic surgeon; another a pediatrician; another a brain specialist; a cancer specialist; a stomach specialist; or an eye, ear, nose and throat specialist.

Even a Circuit Judge in the appointment of a physician' in a personal injury case is not required to appoint any physician who may be available, but he exercises a discretion in selecting one best fitted for the particular case. In a capital case where the defense may be insanity, the Judge does not appoint someone to make an examination simply because he may be a physician, but he exercises ■ a discretion and employs a specialist in that field. Even a physician generally cannot qualify as an expert witness in the treatment of all human ills and ailments. He generally qualifies as an expert in a párticular field. ■

If a certificate is required by the appellant as to the nature of some mental or physical disability of a recipient, before granting relief, the appellant has the right to exercise a sound and reasonable discretion in selecting the physician whose certificate the appellant will accept.

It has not been made to appear that the Welfare Act gave to the appellee, and others similarly situated, any rights under the said Act. Whatever payments may be made are made to the recipient, that .is, the aged or dependent children, and not to the appellee. These payments may be based upon a budget for each particular individual whereby the appellant in the exercise of a sound discretion determines the need of each individual. The fact that such budget may contain an item for medical, dental, or surgical services paid to the recipient does not vest in the appellee any right to receive a portion of the money which may be paid to the recipient. If there is any complaint to be made with reference to any particular item set forth in the budget for the individual recipient, that complaint should be made by the recipient and not by the grocer, the butcher, the clothier, the landlord, the naturopath, surgeon, dentist or the physician, or any other person who may have a claim against the recipient for services rendered, for food, clothing, or shelter furnished.

The appellee has not shown that he has any right to maintain this action.

Reversed, with directions to set aside the final decree and to dismiss the bill of complaint.

ROBERTS, C. J., SEBRING, J., and PATTERSON, Associate Justice, concur.

TERRELL, THOMAS and DREW, JJ., dissent.

On Rehearing Granted

PER CURIAM.

A rehearing was granted in this cause and the matter was duly argued to the Court en banc.

The material portion of the order appealed from is as follows :

“It is further ordered that all rules, regulations and policies under which the defendant, State Department of Public Welfare, a corporation, is administering the social welfare act, Chapter 26937, Laws of Florida, Acts of 1951 [F.S.A. § 409.01 et seq.], including the rule or'regulation attached to and made a part of the bill of complaint, under and by which said rules, regulations or policies the said defendant, State Department of Public Welfare, a corporation, is allowing up to $12.00 per month to recipients under said Act of public assistance for prescriptive medicines, when purchased by recipients under prescriptions only when written by medical or Osteopathic doctors, are discriminatory, arbitrary and invalid insofar as they exclude payment to recipients for medicines under prescriptions written and furnished by Naturopathic physicians. The said defendant, State Department of Public Welfare, a corporation, is hereby specifically enjoined and restrained from continuing this arbitrary discrimination against Naturopathic physicians, and is hereby required to recognize and pay to recipients of public assistance, moneys for prescriptive medicines when written by Naturopathic physicians in the same manner and to the same extent as it recognizes, honors and pays for same when written by medical doctors or Osteopaths.
“It is further ordered that in the administration of said social welfare act, the said defendant, State Department of Public Welfare, a corporation, is hereby further enjoined and prohibited from refusing to accept and recognize certificates of Naturopathic physicians in any and all matters wherein Chapter 26937, Laws of Florida, Acts of 1951, provide — for examinations and certificates by physicians or doctors, and said defendant is hereby required to honor certificates and pay for all services authorized by said act, or any rule or regulation, when rendered by Naturopaths within their authorized field of practice under Florida law, to the same extent as when rendered by medical doctors or Osteopaths.”

Justices TERRELL, THOMAS and DREW and Associate Justice PATTERSON are of the view that the opinion of Justice MATHEWS filed June 5, 1953, should be receded from insofar as it holds that naturopathic physicians are prohibited from prescribing narcotic drugs. It is the view of said Justices and the Associate Justice that not only is that issue not presented for our consideration in this appeal but that since the precise and only point decided by the Circuit Court of Pinellas County in “In re Complaint of Melser, 160 Fla. 333, 32 So.2d 742,” was the statutory right of naturopathic physicians to prescribe narcotic drugs included in the term phytotherapy, the affirmance of that judgment by this Court — even without opinion — settled the law to that extent and that this Court, in this case, should not be drawn into an unnecessary reconsideration of its former decision.

In all other respects the former opinion of Justice. MATHEWS is adhered to.

It is so ordered.

TERRELL, THOMAS and DREW, JJ., and PATTERSON,. Associate J.ustice, concur.

ROBERTS, C. J., and SEBRING and MATHEWS, JJ., dissent.

MATHEWS, Justice

(dissenting).

Rehearing was granted in this case. The grounds for rehearing may be briefly stated as follows:

1. The Court has decided rights of persons who are not parties to this suit.

2. In discussing the word “physician” and determining who is a “physician,” the Court discussed and determined the right to prescribe narcotics and this issue was not before the Court.

3. That in the opinion this Court erroneously stated: “It does not appear from the records on file in this Court in the case of In re Complaint of Melser, supra, that Sections 398.04 or 398.08, Florida Statutes, F.S.A., were called to the attention of the Circuit Court or this Court, or were considered in the opinion in that case.”

The fourth ground of the petition contained new matter and complains that this Court failed to consider that after the opinion in the ex parte case of In re Complaint of Melser, 160 Fla. 333, 32 So.2d 742, there, were introduced in the Legislature certain bills having for their intent and purpose the depriving of naturopathic physicians of the right and privilege of prescribing and administering narcotics, which bills never became law. It is the contention of the appellee that the failure of the Legislature to enact these particular laws was an approval by the Legislature of the opinion in the ex parte case of In re Complaint of Melser, supra.

As to the first question raised by the petition for rehearing, the record , shows that the appellee himself filed his suit as a class- suit and he alleges in the bill that it was brought “for the purpose of having the Court determine the rights, privileges and immunities of petitioner and others similarly situated * * (Emphasis supplied.) The law provides for class suits which the appellee claims this suit to be. After petition for rehearing was granted the case was orally argued and only the appellee was represented. , No other person “similarly situated” appeared to complain.

As to the second ground, it appears from the record that this Court did not inject a foreign issue and one not raised by the pleadings or presented to this Court for determination, but that the questions decided were raised specifically by the plaintiff in the Court below and in his briefs filed in this Court. In paragraph 5 of his bill of complaint he alleged that the welfare acts specifically provided for the payment of prescriptions for medicines written by a “physician” or “doctor” and he then alleged that he is a “physician.” In paragraph 6, it is alleged that the 'Welfare Board was not recognizing prescriptions or certificates given by naturopathic physicians or doctors on the ground that such can be rendered and given only by medical doctors or doctors of osteopathy and thereby denying to him his rights as a “physician."

In his prayer for relief, petitioner asked the Court to declare, determine and decree that he, as a naturopathic physician, and all others similarly situated, have the right to do and perform any and all of the things authorized and permitted to be done by physicians or doctors.

In the opinion filed by the Circuit Judge, in the Court below, he stated:

“ * * * By action of the Legislature the plaintiff in this case is a ‘physician’ and entitled to act as such in prescribing medicines, which prescriptions shall be honored by the defendant or other similar welfare agencies. * * * ” (Emphasis supplied.)

The final decree, based upon the above mentioned opinion and from which we have quoted, among other things, contained the following:

“ * * * The said defendant, State Department of Public Welfare, a corporation, is hereby specifically enjoined and restrained from continuing his arbitrary discrimination against Natur-opathic physicians, and is hereby required to recognize and pay to recipients of public assistance, moneys for prescriptive medicines when written by Naturopathic physicians in the same manner and to the same extent as it recognizes, honors, and pays for same when written by medical doctors or Osteopaths.” (Emphasis supplied.)

In his brief the appellee stated:

“ * * * By action of the Legislature the plaintiff in this case is a ‘physician’ and entitled to act as such in prescribing medicines, which prescriptions shall be honored by the defendant or other similar welfare agencies. * * *” (Emphasis supplied.)

It therefore, appears that the plaintiff himself and the Chancellor below placed great significance upon the word “physician” and the Chancellor bottomed his opinion and final decree upon the definition of the word “physician” as contained in the statutes. It was impossible to determine the rights of the appellee without determining whether or not he was a “physician.” This was recognized and emphasized in the entire record from the bill of complaint, the opinion and final decree of the Chancellor in the Court below, and the briefs and oral argument of counsel in this Court. In order to determine whether or not the ap-pellee was a “physician” it was necessary to determine whether or not he was authorized and licensed to “use, mix or otherwise prepare narcotic drugs.”

As to the third ground with reference to the statement in the opinion: “It does not appear from the records on file in this Court in the case of In re Complaint of Melser, supra, that Sections 398.04 or 398.08, Florida Statutes, P.S.A., were called to the attention of the Circuit Court or this Court, or were considered in the opinion in that case”, such statement in the opinion was not only literally true as to the proceedings in the Circuit Court hut was also true with reference to the record filed in this Court. It is true, as stated in the petition for rehearing, that the decree of the lower Court mentioned Chapter 398, Florida Statutes, F.S.A., but in no place did it mention Sections 398.04 and 398.08, Florida Statutes, F.S.A., and there is nothing in the opinion of the Circuit Court to indicate that these sections were called to the attention of the Circuit Court of this Court. The opinion of the Circuit Court in the case of Complaint of Melser, supra, did quote from Chapter 398, Florida Statutes, F.S.A. and discussed and construed portions of the same but nowhere did the Circuit Judge constfue- Sections 398.04 and 398.08 Florida Statutes, F.S.A. or quote from them or discuss them. It is, therefore, literally true that these sections were not called to the attention of the Circuit Court or this Court and were not considered or construed in the opinion in that case. That case may be compared to an assault upon a Statute to the effect that it violates the Constitution of the State, and only one section of the Constitution is called to the Court’s attention, and considered and passed upon by the Court. No one would contend that the Court had passed upon every other section of the Constitution.

With reference to the claim of the ap-pellee that the failure of the Legislature to enact any law after the opinion in the ex parte case of In re Complaint of Melser, supra, was the equivalent of an approval by the Legislature of the opinion in that case, he summarizes the action taken on certain bills in an attempt to show such legislative approval. He alleges that in 1947 Senate Bill 769 was reported favorably by the Senate Committee on Public Health and died on the Senate Calendar; that in 1949 House Bill 508 was killed by the Senate Committee on Public Health; and that in 1951 Senate Bill 798 died on the Calendar.

The. appellee strongly urges that the failure of the Legislature to vote upon and pass the bills in question amounted to a legislative intent to confirm and establish the opinion in the ex parte case of In re Complaint of Melser, supra, as the law of this state.

If failure to act by the Legislature subsequent to the opinion in the case of In re Complaint of Melser, supra, has any effect then it would be to adopt the opinion of the United States Court of Appeals, Fifth Circuit, in the case of Perry v. Larson, 104 F.2d 728, where that Court held that a naturopath was not a “physician” under the provisions of the Florida Uniform Narcotic Drug Law which related it to one authorized to “practice medicine.” With the holding of the United States Court of Appeals in Perry v. Larson, supra, in existence the Florida Legislature reenacted Section 462.01, Florida Statutes, F.S.A. by the provisions of Section 1 of Chapter 21707, Acts of 1943 (making only the changes in the proviso of adding “licensed hereunder” after “any naturopathic physician” and changing “effect” to “affect”).

. In other words, the Legislature reenacted the provision of the law upon which the Federal Court decision was based without making any change in the law so reenacted. By the reenactment of this law a bill actually went to a committee, was reported by the committee, was placed upon the proper Calendars of each House and was voted upon by each House. It is proper to ascertain the legislative intent from positive action by the Legislature. When both Houses have an opportunity to vote and do vote upon a bill, the legislative intent may be determined. The legislative intent cannot be determined because a committee killed a bill or because a bill was placed on the Calendar but never voted upon.

In Section 620 of 59 C.J., p. 1050, in the article on Statutes, the author stated:

“The effect of a statute cannot be narrowed by reference to a bill which was never voted on, but was merely proposed in committee.” See also 82 C.J.S., Statutes, § 366.

In the case of United States v. Allen, 179 F. 13, 18, the Circuit Court of Appeals, Eighth Circuit, said:

“ * * * The trial court held that because a statute conferring the jurisdiction here in question by more direct language was not enacted, though brought to the attention of the committee having the present act in charge, that this amounted to an expression of the legislative intent that the right itself either did not exist or was so doubtful that the only proper procedure was to make provision for a judicial determination of its existence. Courts can find the intent of the Legislature only in the acts which are in fact passed, and not in those which are never voted upon in Congress, but which are simply proposed in committee. , It is not contended, that the bill referred to was ever brought to a vote in Congress and rejected. It was simply one of the measures which was under consideration at the time the act of May 27, 1908, was, passed. To hold that such facts can be looked to for the purpos'e of narrowing the effect of. a statute actually passed, would be to invent a new and dangerous canon of statutory interpretation.”

In Section 326 of SO Am.Jur., p. 318, in the article on Statutes, the author stated:

“It is a general rule that the intent of the legislature is indicated by its action, and not by its failure to act * * *»

It is clear that the failure of the Legislature to vote upon any of the bills mentioned in the petition for rehearing cannot be considered in determining the legislative intent. If any legislative intent is to be gathered from any action by the Legislature, it is from that positive action reenacting the statute above mentioned, which was construed by the United States Circuit Court of Appeals, Fifth Circuit, in Perry v. Larson, supra.

There is no way to ascertain the intention of the Legislature with reference to a bill unless the bill is voted upon. In 33 C.J. 168, the word “intent” is defined as “a determination to do a certain thing * * * a mental attitude made known by acts.” See also, 46 C.J.S., Intent, p. 1103. In the same volume, page 169, the word “intention” is defined, “In legal contemplation, it means the purpose or design with which a willful act is done, characterizing the act. * * * Knowledge is necessary to intention. Intention is a fact.” See, also, 46 C.J.S., Intention, p. 1105.

With all of the known legislative tricks it is impossible to determine the intention of the Legislature by the killing of a bill in committee, by having it placed on the Calendar where it may die for insufficient time to reach it, or where it may meet its death without being voted upon by each'branch of the Legislature.

The former opinion should be adhered to.

SEBRING, J., concurs.

ROBERTS, C. J., agrees to conclusion.  