Calhoun v. Epstein, 1786

• Decision Date: 08 July 1960
• Docket Number: No. 1786,1786
• Citation: 121 So.2d 828
• Parties: Richard CALHOUN, Successful Candidate, and John Marini, P. D. Kennedy, John Ferris and Larry Duane, as the Canvassing Borad, Appellants, v. R. H. EPSTEIN, Appellee.
• Court: Florida District Court of Appeals

Page 828

121 So.2d 828

Richard CALHOUN, Successful Candidate, and John Marini, P. D. Kennedy, John Ferris and Larry Duane, as the Canvassing Borad, Appellants, v. R. H. EPSTEIN, Appellee.

No. 1786.

District Court of Appeal of Florida, Second District.

July 8, 1960.

Joseph A. Varon and Stephen A. Tillotson, Hollywood, for appellants.

Quentin V. Long, of Long & Brady, Hallandale, for appellee.

WILLIS, BEN C., Associate Judge.

The chancellor denied appellant-defendants' motion to dismiss the appellee-plaintiff's complaint, and an interlocutory appeal has been taken to this court. The sole question which was before the trial court and is now before this court is whether or not the complaint set forth a claim upon which relief may be granted. The suit is brought as an election contest pursuant to section 99.192, Florida Statutes, F.S.A.

The complaint sets forth substantially the following facts and allegations:

(1) Plaintiff Epstein and defendant Calhoun were candidates for the office of Mayor of the City of Miramar in an election held January 19, 1960;

(2) Calhoun was certified by 'the Canvassing Board' ¹ at a meeting held January 22, 1960, to be the successful candidate by a one vote margin over Epstein;

(3) The 'Canvassing Board' noted in their certificate that there was a discrepancy of two votes between the total ballots supposedly cast and the total ballots cast;

(4) There were 'persons' who voted for Calhoun who were not qualified electors under the city charter and laws of Florida because they had not been residents of Broward County for a period of six months prior to registration;

(5) A certain absentee ballot was personally handed by the City Clerk to a named elector who took the ballot from the city hall, and two days later it was receive by mail at the city hall, and that said ballot was cast for Richard Calhoun;

(6) That the City Council did wrongfully delegate its power to judge said election.

The appellant contends that the allegations of the complaint wholly fail to set forth circumstances which would render the results of the election different from the result that has been certified. The appellants assert that the allegations concerning the discrepancy between the number of votes supposedly cast and those that were actually cast, plus the allegations regarding the absentee ballot, ² and the allegation charging a wrongful delegation of power to judge the election are all insufficient to call into play any rights in the appellee which may be enforced under section 99.192. We will not comment on those features for we feel that the allegations summarized in (4) above, relating to 'persons' who were not qualified electors casting votes for Calhoun, render the complaint invulnerable to a motion to dismiss. The complaint is not a model pleading, but it does set forth that 'persons' (at least two...