
    William Spafford and W. H. Pruyn, Jr., Petitioners, v. Brevard County, Florida; E. C. Johnson, John B. Rodes, Geo. C. Brockett, P. W. Roberts and John E. Reed, County Commissioners of Said County, and the State Road Department of the State of Florida, Respondents.
    
    On Petition for Rehearing.
    Additional Headnotes by Brown, C. J.:
    1. While the question of whether -the use for which private property is taken by eminent domain is a public use, is ultimately a judicial question, where the legislature declares a particular use to be a public use, the presumption is in favor of its declaration, and the courts would not interfere therewith unless the use is clearly and manifestly of a private character.
    2. The appropriation of private property for the establishment of public highways has been uniformly held by the courts to be an appropriation to a public use.
    3. The necessity for the taking of any particular parcel of land for the carrying out of an admittedly public purpose is ultimately a judicial question on which the landowner, if he so desires and acts seasonably and appropriately, has a right to be heard, and should be afforded reasonable opportunity to that end.
    
      . 4. The rule is well settled that wherever land is taken under the power of eminent domain, even for a manifestly public purpose, it is essential to due process that the owner should have reasonable notice of the proceedings and an opportunity to appear and protect his rights before any appropriation of the property is adjudged.
    5. The grantee of the power of eminent domain may determine the location of the land required to be appropriated in order to accomplish the public purpose in view, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious, or wantonly injurious, or in some other respect beyond the privilege granted by the statute.
    6. The legislature cannot lawfully interfere with the substance of the judicial power and discretion vested in the courts by the Constitution, nor hamper or hinder the free and independent exercise thereof.
    7. That part of Section 2 of Chapter 10118, Laws of 1925, which provides that the State Road Department may immediately and without notice to the landowner appropriate land to the construction of state roads or bridges upon securing to the owner compensation therefor by depositing double the amount of value of such property as fixed by the judge of the court based upon eos parte affidavits, is void because it constitutes a denial of due process as guaranteed by Section 12 of the Declaration of Rights, and as being an unconstitutional invasion of the judicial power by reason of the limitations thereby imposed upon judicial inquiry.
   Whitfield, J.

Section 29, Article XYI of the State Constitution mandatorily applies wben private property is appropriated to the use of any corporation or individual;” and even if a corporation that is created and used as a State agency, is not subject to that organic section, when a delegated right of eminent domain is exercised by it, such corporate State agency is subject to the dominant organic provisions requiring due process of law and just compensation in appropriating private property to the use of highways or other public purposes under the law. Sec. 12, Declaration of Rights. Even if the owner is not entitled to notice and an opportunity to be heard before his property is taken for a public use by direct Act of the Legislature, if the means of obtaining just compensation is reasonably secured to him, yet the owner has a right to be heard as to the amount of compensation that should be paid or secured to him; and such right extends to a determination of amounts to be paid into court or secured to meet an ultimate adjudication or compensation where such amounts are to be paid into court or secured as a prerequisite to an appropriation of the property pending condemnation proceedings. When the right of eminent domain is delegated with conditions to its exercise, the performance of the conditions is subject to judicial cognizance; and judicial authority is exercised upon notice and hearing. See Mississippi and Rum River Boom Co. v. Patterson, 98 U. S. 403, text 406; Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co. 17 W. Va. 812.

In this State the determination of what is just compensation for private property that is taken for public use, is a judicial function that cannot be performed by the Legislature either directly or by any method of indirection.

Even if under 'the present constitution. of this State, the Legislature may lawfully authorize private property to be appropriated to a public use upon the institution of condemnation proceedings and the payment into court < or the securing of such an amount as the court may direct, to pay the adjudged compensation when finally ascertained, the amount so paid into court or secured should be duly determined by the court in the orderly course of judicial procedure. The means and processes of such determination cannot lawfully be so circumscribed or arbitrarily controlled by legislative action as to make the amount to be paid into court or secured, a legislative and not a judicial ascertainment and determination.

Section 2, Chapter 10118, delegates to the State Road Department the right to condemn “all necessary lands * for rights of way” and any property “necessary and useful for road building purposes;” and purports to authorize said department to ‘ ‘ enter upon the lands or other property sought to be taken and proceed to the construction of the State road or bridge for which said lands or property are necessary” provided the department shall have “secured to the owner of said property full compensation therefor, by depositing * double the amount of the value of said property as fixed by the judge of said court based upon affidavits of not less than three disinterested freeholders owning property in the vicinity of that sought to be taken.”

This provision purports to authorize an appropriation óf private property upon making a deposit and arbitrarily requires the judge to determine the amount of the deposit upon ex parte affidavits of not less than three disinterested freeholders, without affording the owner any notice of opportunity to be heard and without using any other appropriate means or processes for determining fhe proper amount to be deposited from .which to pay the compensation whén the amount thereof has been duly adjudicated. Such provision is clearly an attempted statutory limita»tion upon the judicial powers that are by the constitution vested in the Courts of the State. And such legislative limitation of judicial powers necessarily invades the organic rights of the owners to due process of law and just compensation w'hen private property is taken for public use.

In State ex rel. Moody v. Baker, 20 Fla. 616, the Constitution of 1868 was applicaible, and the statute authorized the petitioner in' condemnation proceedings to take possession of the property sought to be condemned when suit is begun and money is paid into court or secured to pay the compensation when finally ascertained. But the statute there required a sum sufficient to pay the compensation when finally ascertained to be paid into Court or secured as the court may direct, leaving the amount, to be paid into court or secured, to the determination of the court by due course of law, upon notice, hearing, etc., without legislative limitation or restrictions.

The statute, Chapter 10118, delegates to the several counties of the State the power of eminent domain to condemn at the request of the State Road Department, all necessary lands for thé purpose of securing rights of way for State roads, by the procedure prescribed and set forth in designated statutes, such lands to be first surveyed and located by the State Road Department.

The power of eminent domain is an incident of sovereignty and, within the limitations of organic law, may be exercised by the law-making power or may by it be delegated with appropriate limitations and conditions, such delegated power to be exercised subject to controlling provisions and principles of law. "Whether the purpose for which private property is taken under the power of eminent domain is a public purpose is utimately a judicial question. Hairston v. Danville & W. R. Co., 208 U. S. 598, 28 Sup. Ct. Rep. 331. See Mears v. City of Akron, 246 U. S. 242, text 251, 38 Sup. Ct. Rep. 245; 20 C. J. 549.

While under the sovereign power of eminent domain tbe Legislature, unless restrained by the Constitution, may by direct statutory enactment appropriate particular private property to a public use without notice to the owner, provided just compensation for the property be paid or adequately secured after being duly ascertained upon notice to the owner with a reasonable opportunity afforded to him to be heard in the premises; yet where the sovereign power is delegated with limitations or conditions upon the exercise of the right of eminent domain; the owner of property sought to be taken under such delegated authority has a right to be heard in an appropriate tribunal upon the question of whether delegated authority is being duly exercised in taking his property.

Where the taking or appropriation of particular private property for a public use is not by direct act of the Legislature, but is by a corporate State agency under delegated authority with conditions attached to the exercise of the power, the organic law contemplates that such taking or appropriation shall be by due course of law after notice and reasonable opportunity to be heard in the premises have been given to the owner. See Cotulla v. LaSalle Water Storage Co., (Tex. Civ. App.) 153 S. W. Rep. 711, 713; Lewis’ Eminent Domain (3rd Ed.) Sec. 603.

The statutes confer upon the State Road Department, a corporation, and the several counties, authority to exercise the right of eminent domain to condemn property “necessary and useful for road building purposes subject to stated limitations and conditions, and such exercise is subject to applicable provisions of organic law as well as subject to the authority of the courts to determine, upon notice and other requirements of due process, whether the delegated authority is being duly exercised within the conditions and limitations imposed by law.

In this case the exercise of the right of eminent domain is by a subordinate agency upon which conditions are imposed, and the order-authorizing the appropriation of private property was made ex parte without notice or an opportunity to be heard being given to the owner and without a hearing or determination that the statutory conditions of the authority had been complied with; and likewise the sum required to be deposited for subsequent use as compensation for the property taken when the amount is determined, was based upon ex parte affidavits without notice to the owner who had an organic right to be heard upon matters affecting the compensation for property taken.

The Constitution commands that all courts in this State shall be open so that every person for any injury done him in his lands, &c., shall have remedy, by due course of law, and right and justice shall be administered. If delegated authority to exercise the right of eminent domain is not exerted in accordance with the authority as conferred and thereby injury is done to any person, the courts are by the Constitution required upon proper procedure to afford appropriate remedy by due course of law.

Where, pursuant to the sovereign right of eminent domain, and in the absence of organic limitations, private property is appropriated by direct action of the law-making department, such action is controlling, provided the appropriation is for a public use and just compensation is duly paid or adequately secured; but where the right of eminent domain is delegated with limitations and conditions upon its exercise, the Legislature has no facilities for enforcing the conditions and limitations imposed upon the exercise of the right, and the authority and duty devolves upon the courts in appropriate procedure by proper parties to prevent an unlawful exercise of the delegated authority.

The intent of the law is the controlling element; and it seems clear that the intent of Section 29, Article XVI, of the Constitution is that no private property nor right of way shall be appropriated until full compensation therefor has been first paid or secured by deposit of money, which compensation shall be ascertained by a jury of twelve men in due course of law.

In this case the property was by interlocutory order in effect authorized to be appropriated upon deposit of an amount determined by the court upon ex parte affidavits without giving the owner any notice or opportunity to be heard as to what is “full compensation;” and the interlocutory order made upon ex parte affidavits as to the amount of the deposit to be made, necessarily embarrasses the owner in showing what is “full compensation,” and denies the express organic right to have the compensation determined by a jury of twelve men before the property is appropriated to a conceded public use.

The order to which the writ of certiorari herein is addressed, authorizes the State Road Department, a corporation, to enter upon the lands sought to be condemned and to construct a highway thereon, upon depositing in the registry of the court a sum that is double the value of the lands as determined from ex parte affidavits, no notice or opportunity to be heard being given to the owner. •

The organic provision that private property shall not be taken without just compensation, contemplates that before private property is taken for a public use, just compensation therefor shall be paid or adequately secured, and the owner is entitled to be heard as to what is just compensation before the property is appropriated, at least where the-right to condemn is delegated to an agency with attached limitations and conditions to the exercise of the delegated authority. The statutes provide for orderly judicial proceedings to be had in dire course of law, except that the provision of Section 2, Chapter 10118, for an order for the entry upon and the construction of a highway on the lands sought to be condemned upon the making of a deposit, the ambunt of which is determined upon ex parte affidavits without notice to the owner of the property, is an arbitrary attempt to appropriate property without due process of law and without a lawful determination of what is just compensation for the property taken.

The petition for rehearing should be denied.

Ellis and Buford, J. J., concur.

SPAFFORD CASE.

Ellis, J.,

concurring in opinion by Whitfield, J.:

Upon the first hearing of this case the order of the court in which proceedings for the c'ondemnation of a strip of land for road purposes were begun was quashed,the ground being .that the agencies of the state had not proceeded properly under the statute vesting them with power to subject private property to public use.

A petition for rehearing was filed. The basis of the petition is that the word “corporation,” as used in Section 29, Article 16 of the Constitution, does not apply to a State agency which may have been vested with the powers of a corporation.

But the argument contains a fallacy which is quite apparent. Some corporations are empowered by law to exercise the power of eminent domain.

They are prohibited by. the article above referred to from appropriating any private property to their use until full compensation therefor shall be first made to the owner, which compensation shall be determined by a jury of twelve men in a court of competent jurisdiction. If the State Road Board may be distinguished from other corporations in being a state agency and the property which it appropriates is not for its own use but for that of the state does it follow that the property of citizens may be taken for a public or state purpose without due process of law?

The words “eminent domain” relate to an authority existing in every sovereignty to own, possess, control and take property. In some cases the authority is complete without any action on the part of the state, in other cases it becomes complete by displacing the right of ownership. This is accomplished in three ways: by contract with the owner, by accepting his gift or by appropriating his property against his will.

It is the last phase of the power of eminent domain with which this case deals.

Our constitution provides that no person shall be deprived of property without due process of law nor shall his property be taken without just compensation.

This guaranty implies orderly judicial process it matters not whom the parties may be, whether state or individual. Does it therefore matter that in this ease it is the state through its agencies which seeks to acquire the private property of an individual without due process of law ?

I think not.

Brown, C. J.,

concurring specially.

Upon a further consideration of the questions involved in this case, on petition for rehearing, I concur in the conclusion that the rehearing should be denied, but I cannot concur fully in all the reasons given in the able opinions of Justices Wi-iiteield and Ellis.

I have become convinced that Section- 29 of Article 16 of the Constitution is not applicable to a public corporation acquiring property for the State for a purely public purpose and the title to and control of which property will, when acquired, be vested in the State of Florida, because certain language of such constitutional provision shows that it does not apply. It reads:

“No private property or right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, first secured to him by the deposit of money,” etc. (Italics mine.),

The Act here in question (Chap. 10118, Laws of 1925), construed in connection with other prior acts relating to state roads and the State Road Department, shows that whatever property is acquired for state roads and bridges, in the exercise of the power of eminent domain, either by such Road Department itself, or by the County Commissioners acting in its behalf, will be appropriated to the use of, and become the property of, the State of Florida, which means the people of Florida, and for the common good. (See Chap. 7900, Acts of 1919; Chapter 9311, Acts of 1923). It will not be “appropriated to the use of any corporation or individual,” and hence the constitutional provision referred to does not apply. It is true, the State Road Department is, by the Act, made “a body corporate for the purposes of the Act,” and a county has a certain restricted corporate capacity, yet in the exercise of eminent domain for the acquisition of lands for state roads, neither is acquiring anything for itself in its corporate capacity, but only for the state, and all that either may acquire under the Act here in question will be “appropriated to the use of” the state. The fact that the State Road Department is vested with certain duties with reference to the surveying, location, acquisition of right of way, and construction and maintenance of such roads, does not alter the situation, for all of these things pertain to it merely as an agency of the state. Arundel Corporation v. Griffin, 103 So. 422; Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372. The status of railroad and other private corporations, although they are permitted to condemn property only for public purposes, is quite different. Although the property asquired may be affected with a public interest, and used for public as well as private purposes, the title thereto, and the use, management and operation thereof, is private, and the profits made go to the private owners. So in a very real sense, the property acquired by the exercise of the delegated power of eminent domain by such corporations is “appropriated to the use of” the corporations, and this section of the constitution applies.

There is, however, another provision of our constitution which does apply to the exercise of the power of eminent domain by public as well as private corporations, and even by the state itself. That is, the limitations imposed by Section 12 of the Declaration of Rights, that, “No person shall * * be deprived * * property without due process of law; nor shall private property be taken without just compensation.” Does the enactment now before us offend against either of these provisions? To my mind, it conflicts only with the guarantee of due process, and the vested judicial power of the courts.

The right of eminent domain is inherent in the sovereignty of the state, and while it may be limited it is not created, by the constitution. It is an attribute of sovereignty which the state would have even though there were no constitutional grant of the power. While the question of whether the use for which private property is taken is a public use is ultimately a judicial question, where the leglislature declares a particular use to be a public use, the presumption is in favor of its declaration, and the courts will not interfere therewith unless the use is clearly and manifestly of a private character. 20 C. J. 549-552, and cases cited; Sears v. City of Akron, 246, U. S. 242, 62 L. Ed. 688, 38 Sup. Ct. Rep. 245; Isleworth Grove Co. v. Orange County, 79 Fla. 208, 84 So. 83. The appropriation, of private property for the establishment of public highways has been uniformly held to be a public use. 20 C. J. 559. The Supreme Court of the United States holds that while the question of whether the purpose of the taking is a public one, is a question for the courts, the necessity for, and proper extent of, the taking, is a legislative question. Sears v. City of Akron, supra.

However, the necessity for taking any particular parcel of land for the carrying out of even an admittedly public purpose is ultimately a judicial question on which the landowner if he so desires, has a right to be heard. 20 C. J. 629-30. The rule is well settled that wherever land is taken under the power of eminent domain, even for a purpose confessedly public, it is necessary that the owner should have due notice of the proceedings and an opportunity to appear and protect his rights. This is jurisdictional, and essential to due process. Jacksonville etc., R. Co. v. Adams, 27 Fla. 443, 9 So. 2; Ramapo Water Co. v. New York, 236, U. S. 579, 59 L. Ed. 731, 20 C. J. 927-8. mile the grantee of the power of eminent domain is allowed a reasonable discretion in determining the necessity and extent of the appropriation, whether any necessity whatever actually exists is in the ultimate a judicial question. St. Louis, etc., R. R. Co. v. Southwestern Tel. Co., 121 Fed. 276, 58 C. C. A. 198; 20 C. J. 630, and eases cited. The grantee of such power may determine the location of the land required to be appropriated in order to accomplish the public purpose in view, and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious or in some respect beyond the privilege covered by the statute. See numerous authorities cited on pages 632 to 634, Vol. 20, C. J.

There can be no doubt that the purpose of the appropriation contemplated by the Act here involved is public; nor is the point challenged by the petitioners for the writ. Their contention is that Section 2 of Chapter 10118 in unconstitutional, first, because it affords a taking before the amount of compensation is actually determined by a jury, and paid by the petitioners in the condemnation proceedings; and second, that the method outlined by Section 2 denies due process.

The first point is disposed of by showing that Section 29 of Article 16 of our Constitution does not apply. Nor does the provision that “private property shall not be taken without just compensation” require that the compensation shall be fixed and paid prior to the occupancy of the land sought to be taken. Sweet v. Rechel, 159 U. S. 380, 40 L. Ed. 188, 16 Sup. Ct. Rep. 43; Cherokee Nation v. Southern Kan. Ry. Co., 135 U. S. 641, 34 L. Ed. 295, 10 Sup. Ct. Rep. 965; 20 C. J. 837, and cases cited.

“While there is some authority at least to the contrary, the general rule is that in the absence of any constitutional requirement it is not ordinarily necessary for a State or municipal subdivision thereof to pay for property taken for public use in advance of the taking, if provision is made for payment and a proper tribunal constituted, so that the land owner can make his claim and recover compensation or damages, and this is the case where the constitution, although requiring prepayment, expressly excepts from its operation a State or municipal corporation, or limits the requirement to cases of taking by ‘corporations’ or where the Constitution or statutes require compensation to be first paid or secured. It is sufficient that an adequate or safe fund is provided from which payment is to be made, as, for instance, making the amount payable a charge upon the public treasury either of the State or some municipal subdivision thereof, which is considered equivalent to actual compensation. So it has been held that the power of taxation given a municipality is ordinarily adequate security. Nevertheless, it is generally held that under a Constitution providing generally that private property shall not be taken for public use without compensation being first made, prepayment by municipal corporations is as much necessary as in the ease of private corporations and individuals, and the rule applies where prepayment is expressly required by statute. An award of damages and a judgment therefor is not a compliance with these provisions.” 20 C. J. 833-835, Sec. 269, and cases cited.

In State ex rel. Moody v. Jacksonville, T. & K. W. R. Co., 20 Fla. 616, this court, speaking through Justice "Westcott, held that “The mode or method of exercising the right of eminent domain, in the absence of any provision in the organic law regulating it, is within the discretion of the Legislature. The limitation is that it shall be exercised for a public purpose, with just compensation; and vesting the power of ascertaining it in a court and appraisers is constitutional. ’ ’ It was further held that a statute authorizing a railroad company, which has not acquired title to land upon which it has constructed its track, to have an appraisal for the damage done to the owner, and to remain in possession during the pendency of the proceedings, and to have a stay of all actions pending against the company on account thereof, upon such company paying into court a sufficient sum, as the court may direct, to. pay the compensation therefor when finally ascertained, is constitutional. On page 655 of the opinion, it is said: “Objection is made on the ground that the court is given authority to fix the cash sum to be paid into court to meet the compensation to be awarded, and because the right to institute the proceedings to appraise is restricted to the company. These objections concern the method of exercising the right of eminent domain under the Constitution, as to which, as remarked by the Supreme Court of the United States: ‘It is no longer an open question in this country that the mode of exercising the right of eminent domain, in the absence of any provision in the organic law prescribing a contrary course, is within the discretion of the Legislature.’ ”

Justice Westcott continues: “The court here has the authority to hear witnesses, to determine the amount of the deposit by virtue of its general power, to determine what is a sufficient sum, and it is a very proper authority to exercise the, power. ’ ’

At the time this decision was handed down, 1884, the then Constitution did not embrace such a provision as Section 29 of Article 16, but if we are correct in our view that this section is not applicable here, all that Justice Westcott said, in the ease above- cited, is both applicable and pertinent.

See also the opinion of Chief Justice White in Crozier v. Fried Krupp, 224, U. S. 290, 56 L. Ed. 771, 32 Sup. Ct. Rep. 488, and Backus v. Fort St. Union Depot Co., 169 U. S. 557, 42 L. Ed. 852, 18 Sup. Ct. Rep. 445. In the opinion in the last cited case it is said: ‘ ‘ There can be no doubt, if adequate provision for compensation is made, authority may be granted for taking possession pending inquiry as to the amount which must be paid and before any final determination thereof.”

The Act we are considering provides that the State Road Department or counties acting in its behalf shall have the power of eminent domain to condemn lands and property for securing right of ways for State roads and bridges, and that such proceedings shall be the procedure prescribed by Section 1503 et seq. of Rev. Gen. Stats., together with such rights as are secured by Section 2 of said Act.

That this procedure, without Section 2 of the Act, affords a reasonably prompt method for the ascertainment- -and payment of compensation cannot be denied, and the judgment of appropriation is void unless the compensation is paid within a few days after verdict and judgment. Hence the landowner’s title does not pass unless the compensation fixed by the jury is promptly paid. Not only has the landowner this security for payment, but the Act here involved provides for payment out of the road funds of the State Road Department, or of the county, respectively. By implication, the public faith and credit and the power of taxation is also pledged.

As there is no doubt of the right of the State through the agency of its Road Department, or one of its political subdivisions, to take private property when needed for such an admittedly public purpose as a public highway, the only real question involved in these particular condemnation proceedings is the adjudication of the amount of compensation and the payment thereof to the owner, the necessity of the taking of the particular property not being denied. This- being the ease, and the weight and reason of authority, as above shown, being to the effect that in such cases the ascertainment and payment of compensation need not precede the taking, it might have been within the power of the Legislature to have provided some procedure by which, after the filing of the petition in the form and manner prescribed, and the service of process upon the owner, and after the giving of due and reasonable notice to him, affording due process of law, the State through its Road Department might be authorized by an order of court, before the final jury trial on the question of compensation, to enter and occupy the land or property sought to be taken and proceed to the construction of the State road or bridge for which such lands are necessary; but the method adopted in Section 2 of the Act is void in that it denies due process and hampers the judicial function, as pointed out in the opinion of Mr. Justice Whitfield.

It is true, this ascertainment by the judge provided in Section 2 is provisional and preliminary as to the amount of compensation, and is not binding upon the jury afterward empanelled to try the question; nor would it be admissible evidence before such jury on the question of value or eonxpensation. But it is not provisional and preliminary as to one important feature — the taking of possession of the landowner’s property without notice, and its immediate appropriation to the construction of the road or bridge. As to this it is practically final. The statute does not say upon whose motion the judge shall act, nor that any notice shall be given to either party; but by implication, the Act provides that the petitioner, alone, where immediate possession is desired, may apply to the judge to take action under this proviso, and the judge could proceed to fix the value without notice to the defendant, in this ex parte manner.

It will be observed that the Circuit Judge is given the power to make this preliminary ascertainment of value upon evidence afforded by affidavits alone, of disinterested persons owning land in the vicinity, which must be not less than three in number. It is true he may require as many affidavits as he desires. He need not take any action at all unless he has before him affidavits which in his judgment afford a sufficient basis to arrive at a fair and definite opinion as to such value. There is no. compulsion upon the judge. He can refuse’ to make the finding if satisfactory evidence therefor is not produced. The only limitation is that his finding as to the value must be based upon “affidavits of not less than three disinterested freeholders owning property in the vicinity of that sought to be taken.” He can of course require more than three affidavits if desired by him. But he is limited, in effect, to the consideration of such ex parte affidavits as may be submitted to him by the petitioners.

The question arises whether this provision is an invasion of the judicial discretion, which is beyond the power of the legislature. The general principle involved was well stated by MR. JUSTICE WHITFIELD, speaking for this court, in Ruff v. Georgia, S. & F. R. R. Co. 67 Fla. 224, 64 So. 782, as follows: “Nor can the legislature lawfully interfere with the substance of the judicial power and discretion vested in the courts by the constitution. The legislature may lawfully prescribe rules of procedure which the courts will observe; but the legislature has no power under the constitution to regulate the judicial discretion that is vested in the courts. ” It is well settled that the legislature can establish rules of pleading and evidence so long as it violates no constitutional requirements or rights guaranteed by it. And while it may not make evidence of certain facts conclusive, it -may declare that proof of certain facts shall be prima facie evidence of some other substantive fact. It may permit the issuance of an attachment on ex parte affidavit, or of a temporary injunction or restraining order without notice, on one or more ex parte affidavits. It may prescribe that evidence of a certain character shall be admissible, and regulate the burden of proof. But it cannot determine disputed questions of fact affecting the rights of person or property, or encroach upon the well recognized discretionary or adjudicatory powers of the courts of justice in that regard. See generally 12 C. J. pages 807, 823, 827. And to limit and confine a court, in the determination of any justiciable question, to the consideration of evidence submitted only in the form of ex parte affidavits, is going a little too far, and encroaches upon the well recognized discretionary and adjudicatory powers of the courts,” and hence is an invasion by the legislature of the judicial power vested by the constitution in the courts alone.

Because of the failure of the provision in Section 2 to afford due process, and its invasion of the judicial power, its invalidity clearly appears, and the motion for rehearing should be denied.

Terrell and Strum, J. J., concur.  