Collier v. Gray

• Decision Date: 13 October 1934
• Citation: 116 Fla. 845,157 So. 40
• Parties: COLLIER v. GRAY.
• Court: Florida Supreme Court

157 So. 40

116 Fla. 845

COLLIER v. GRAY.

Florida Supreme Court

Oct. 13, 1934

Rehearing Denied Oct. 24, 1934.

En Banc.

Suit by D. B. Collier against R. A. Gray, as Secretary of State of the state of Florida. From an order denying an injunction complainant appeals. On appellant's application for a temporary restraining order pending appeal.

Injunction benied and decree affirmed.

DAVIS C.J., and BROWN, J., dissenting. Appeal from Circuit Court, Leon County; J. B. Johnson, Judge.

COUNSEL

G. B Knowles and John B. Singeltary, both of Bradenton, Stephens &amp Purvis, of Arcadia, John F. Burket and Harrison E. Barringer, both of Sarasota, Latimer C. Farr and W. W. Whitehurst, both of Wauchula, Leitner

& Leitner, of Arcadia, L. O. Casey, of Hollywood, Curtis Byrd, Elbert B. Griffis, and C. E. Farrington, all of Fort Lauderdale, E. C. Johnson, of Tampa, Strauss L. Lloyd, of Inverness, Evans Crary, of Stuart, James T. Vocelle, of Vero Beach, G. R. Nottingham, H. J. Dame, both of Fort Pierce, Fairfax T. Haskins, M. R. McDonald, and Playford A. Naylor, all of Sebring, and Thomas Sale, of Panama City, for appellant.

Cary D. Landis, Atty. Gen., and Robert J. Pleus, Asst. Atty. Gen., for appellee.

OPINION

ELLIS Justice.

This is an application for a temporary restraining order pending an appeal from an order made by Hon. J. B. Johnson, judge of the circuit court for Leon county, denying an application by D. B. Collier, a citizen of Manatee county, Fla., for an injunction to restrain Hon. R. A. Gray, as secretary of state, from continuing to advertise in newspapers in various counties in the state a proposed constitutional amendment, said to have been submitted at the last general session of the Legislature, and from expending any public funds upon the preparation, mailing, or certifying the supposed proposition to the boards of county commissioners of the state of Florida for the purpose of having the same printed upon the official ballots to be used at the November election.

From the order denying the injunction, which does not appear to have been recorded except by the notice of the entry of appeal, D. B. Collier appealed to this court. The appeal was taken on September 29, 1934, the same day that the order denying the injunction was made.

This court is by the present application petitioned to exercise the power of granting to the complainant an injunction to restrain the secretary of state from performing the very same public service which the circuit court refused to restrain him from performing.

The application is signed by twenty-two attorneys at law as solicitors for appellant.

The court is requested to exercise the power under section 5 of article 5 of the Constitution which authorizes it to issue 'all writs necessary or proper to the complete exercise of its jurisdiction.'

This short cut to an expeditious determination of Mr. Collier's appeal is an anomalous proceeding and seems hardly to be justified by the exigencies of the situation. It is true that the appeal may not be determined in due course before the election, as to the notices they have doubtless already been published, so the expense to be saved which justifies the taxpayer in seeking an injunction is the cost of printing the proposition on the ballots and the supposed confusion which a wrongful submission of the proposed amendment to a vote of the electors would entail. See Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann. Cas. 1914B, 916.

In that case an application for a supersedeas was denied. A temporary injunction was granted against the secretary of state, who on appeal applied for a supersedeas. The court, considering that the public was vitally interested, decided to hear and determine the case on its merits, questions of law only being involved.

In this case the injunction was denied, so this court is urged to issue the necessary writ in order that it may completely exercise its jurisdiction. If this arguments is considered at all, it follows that we will be required to consider the case on its merits as it is obviously too narrow a ground to consider only the fact that the election will be held and all the money spent for ballots before the record in the appeal can in due course reach this court and the cause be submitted on briefs.

The solicitors for appellant and the Attorney General have in view of the public interest requested the court to dispose of the cause on the merits upon the application for a pendente lite injunction under section 5 of article 5, Constitution.

The proposed amendment to the Constitution, as the same has been advertised and will be printed on the ballots unless this court grants the injunction sought, reads as follows as the same appears in the transcript of the record:

'Be It Resolved by the Legislature of the State of Florida:

'That the following amendment to Article V of the Constitution of this State relating to the Judiciary by adding thereto additional Section 45 as hereinafter set forth, be and the same is hereby agreed to and shall be submitted to the qualified voters of the State of Florida for ratification or rejection at the next ensuing general election, that is to say, that an additional Section to be designated as Section 45 of Article V of the Constitution of Florida be adopted to read as follows, to wit:

"Section 45.

"(a) There shall be no more than fifteen judicial circuits of the State of Florida to be appropriately designated, numbered and defined by a suitable law enacted by the Legislature for that purpose in accordance with the amendment; Provided that no judicial circuit as defined by law hereunder shall embrace less than fifty thousand inhabitants according to the last preceding State or Federal census; and provided further, that no judicial circuit existing at the time of the ratification of this amendment shall be affected, altered, or abolished, except in the manner provided in this amendment for carrying the same into execution, nor shall any existing Circuit Judge or State Attorney be disturbed in the tenure of his office until the expiration of any commission held by him on the date this amendment is ratified.

"(b) It shall be the duty of the Legislature at its next regular session after the amendment shall have been ratified to pass suitable laws to carry this amendment into effect, and to make effective the reapportionment and reduction of judicial circuits and Circuit Judges hereby contemplated.

"(c) There shall be one Circuit Judge to each Judicial Circuit but additional Circuit Judges for judicial circuit may be provided for by law as authorized by Section 43 of amended Article V of this Constitution, but the total number of Circuit Judges apportioned to any one judicial circuit shall not exceed one Circuit Judge for every fifty thousand inhabitants, or major fraction thereof, after this amendment shall have been put into effect.

"(d) In Circuits having more than one Judge the Legislature may designate the place of residence of any such additional Judge of Judges.

"(e) The re-apportionment of Circuits and Judges thereof hereby provided for shall become effective sixty days after the act providing for same shall have become a law."

That resolution originated in the Senate and was known as 'Senate Joint Resolution No. 582.' Laws 1933, p. 881.

It appears to have passed that body by the requisite three-fifths vote required by the Constitution (Const. art. 17, § 1) on May 19, 1933.

After the resolution was proposed in the Senate, it was amended, so the Senate Journal discloses, by adding as subsection d the following: 'In Circuits having more than one Judge the Legislature may designate the place of residence of any such additional Judge of Judges.'

The resolution was agreed to as amended, the vote being thirty-seven yeas. No vote was cast in the negative.

The resolution was duly transmitted to the House on the following day and was entered in full upon the journal of that House. It had been previously entered in full in the Senate Journal without subsection d above quoted. That entry appears on the journal of May 11, 1933. When it came on for consideration on May 19th, it was again entered on the journal, when Senator MacWilliams proposed the amendment to be known as 'Subsection d' above quoted. The journal discloses that the amendment was agreed to. The Senate Journal entry is as follows:

'Senator MacWilliams offered the following amendment to Senate Joint Resolution No. 582:

'In typewritten bill add as Sub-Section 'd' the following:

"In Circuits having more than one Judge, the Legislature may designate the place of residence of any such additional Judge or Judges.

'Senator MacWilliams moved the adoption of the amendment.

'Which was agreed to.

'And the amendment was adopted.'

Other proposed amendments were rejected. The journal entry then continues as follows:

'Senator MacWilliams moved that the rules be further waived and Senate Joint Resolution No. 582, as amended, be read a third time in full and put upon its passage.

Which was agreed to by a two-thirds vote.

'And Senate Joint Resolution No. 582, as amended, was read a third time in full.

'Upon the passage of the Joint Resolution, as amended, the roll was called and the vote was.'

The names of the Senators voting for the resolution as amended are omitted from this statement of the proceedings. The journal recites that Senate Joint Resolution as amended passed by the required constitutional three-fifth vote of all members elected to the Senate for the 1933 Session of the Florida Legislature and that the resolution as amended was ordered referred to the committee on engrossed bills. The 'Subsection 'd," constituting the amendment to the...