BIENNIAL REPORT OF THE ATTORNEY GENERAL
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tions prohibition contained in §120.28 (above quoted) is addressed
only to a "hearing examiner," and therefore does not apply to a
hearing officer who is a member of the agency. The same interpretation is placed on the federal administrative procedure act. See Wong
Yang Sung v. McGrath, 70 S. Ct. 445, 339 U. S. 33, 94 L. Ed. 616.
The fact that a hearing officer or the agency of which he is a hearing
officer or member acts in the nature of an investigator, prosecutor,
witness, and judge or fact finder does not render the hearing unfair.
73 C. J. S., Public Administrative Bodies and Procedure, §135, p. 46l.
It is my opinion, therefore, that a member of a board who presides at the administrative hearing may sit with the board and participate with it in rendering its final order in the same case in which
he presided as hearing officer. The same is true for other members
of the medical board who attend the hearing.
Your questions are answered accordingly.
063-94-August 9, 1963
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LEGISLATION
EFFECTIVE DATE OF CR. 63-555-'§28, ART. III, §§16 AND 18,
ART. III, STATE CaNST.; §§112.05, 122.10, F. S.
To: Ray E. Green, State Comptroller, Tallahassee
QUESTION:
Your letter of the 8th poses the question of the effective date of Ch. 63-555, which became a law without the
governor's signature. The records of the secretary of
state show that this act was filed in that office on July
10, 1963. This act was identified in the legislature as
senate bill 1023, and, according to legislative records
was filed in the governor's office on June 13, 1963, said
date being a Thursday. The legislature adjourned on
June 19, 1963. Under §28, Art. III of the State Const., the
governor had 5 days (Sundays excepted) within which
to take action on the said bill or, in fact, in this particular
case, 6 days as a Sunday intervened, which did not expire
until the end of said June 19, 1963. Therefore, the le~is­
lature by its adjournment during June 19, 1963, and prior
to the end of said day, left the, bill on the governor's
desk so that his time for action on the said bill became
20 days from the adjournment of the said legislature, or
including July 9. Said Ch. 63-555 became a law, not having
been acted on by the governor within the said 20 days,
with the beginning of July 10, 1963.
Section 11 of said Ch. 63-555 provides that this act shall become
effective July 1, 1963. This was 9 days prior to the time said Ch.
63-555, became a law. The fact that the effective date, as stated in
the said act, is several days prior to the time the. said act became a
law presents the problem of the actual effective date thereof. If the
said act is to take effect on July 1, 1963, a date prior to the date it
became a law, it will in effect be a retroactive or retrospective law,
which is a law which looks backward and contemplates the past, one
which is made to affect acts or facts occurring, or rights accruirig,
before it came into force. (Black's Law Dictionary). A statute operates prospectively unless the intent that it operate retroactively or
retrospectively is clearly expressed therein or by other law (State v.
146
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Green, Fla., 101 So. 2d 805, text 807; Larson v. Independent Life
and Accident Ins. Co., Fla. 29 So. 2d 448; 82 C. J. S. 891, §414). "It
is a well settled and fundamental rule of statutory construction, variously stated, that all statutes are to be construed as having only a
prospective operation, and not as operating retrospectively.... Whether a statute operates prospectively, retrospectively or retroactively is a
matter of legislative intent... More specifically, statutes generally
will be held to operate prospectively unless the purpose and intention
of the legislature to give them a retrospective effect clearly appears."
(82 C. J. S. 981-985, §414). In cases of doubt, the doubt should
be resolved against the retrospective effect and in favor of the prospective construction only (82 C. J. S. 989 and 990, §414).
"Where the legislature fixes an effective date for a statute, but
the statute is not approved until after such date, the effective date
clause becomes void by reason of such circumstances, and the act goes
into effect at a date subsequent to that fixed" (82 C. J. S. 963, §400).
See also to the same effect Robey v. Broersma, 181 Md. 325, 146
A. L. R. 687, 29 A. 2d 827, text 831; In Re: Borough of Sharpsburg,
163 Pa. Super. 84, 60 A, 2d 557, text 559; Portland Pendleton Motor
Transport Co. v. Heltzel, 197 Or. 644, 255 P. 2d 124. We find no
contrary cases. In the light of the above and foregoing we are of the
opinion that Ch. 63-555, became effective, under §18, Art. III of the
State Const. 60 days after the 1963 regular session of the Florida
legislature adjourned on June 19, 1963.
We find nothing in said Ch. 63-555, including §7 thereof, evidencing an intention to make the said act, or said §7, retroactive or
retrospective to July 1, 1963, or any other date.
Section 16, Art. III of the State Const. provides in part that
"each law enacted in the legislature shall embrace but one subject,
and matters properly connected therewith, which subject shall be
briefly expressed in the title..." The title to said eh. 63-555 is "an
act relating to retirement; making amendments in Chapter 122, Florida
Statutes, relating to the state and county officers and employees
retirement system; making special provisions for sheriffs and certain
full time deputy sheriffs performing high hazard duties; making
special provisions for persons becoming members on or after July
1, 1963; making provision for subsequent modification of the findings;
providing an appropriation beginning in 1967; and providing an effective date." No mention is made of an amendment of §112.05, F. S.,
which §7 of the said act purports to amend and renumber as §122.10
(3), F. S. Section 112.05, F. S., appears to be more in the nature of a
pension than a provision for retirement. These observations seem to
cast doubt on the validity of said section 7 and the amendment made
thereby. upon constitutional ground under §16, Art. III of the State
Const. However, it has lcng been the policy of this office not to hold
acts of the legislature or statutes and laws of the state unconstitutional,
but to leave their constitutionality to the courts. We, therefore, do
not pass upon the constitutionality or unconstitutionality of said §7
of Ch. 63-555.
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