D'alemberte v. State

• Decision Date: 22 October 1908
• Court: Florida Supreme Court
• Parties: D'ALEMBERTE et al. v. STATE ex rel. MAYS.

47 So. 489

56 Fla. 162

D'ALEMBERTE et al. v. STATE ex rel. MAYS.

Florida Supreme Court

October 22, 1908

In Banc. Error to Circuit Court, Leon County; John W. Malone Judge.

Mandamus by the State, on the relation of D. H. Mays, against A. H D'Alemberte and others, Judgment for relator, and respondents bring error. Affirmed.

Syllabus by the Court

SYLLABUS

The rights of a candidate, which arise under and are created by the primary election laws of the state of Florida, are such that when violated the courts of this state may be resorted to for their enforcement, and the writ of mandamus may be used to compel the performance of the duties which are imposed by law upon the members of the congressional or standing committee of a political party in a congressional district.

The duties imposed by law upon the members of the congressional or standing committee of a political party in a congressional district are ministerial, or at most but quasi judicial, and in canvassing the vote such committee has, under the Constitution and laws, no exclusive or ultimate power to pass upon the question whetehr a vote cast at a primary election was legally cast, for that is a judicial question.

It is the duty of the courts not to condemn a law as unconstitutional, if a construction favorable to its constitutionality can be given without violating the plain intent of the Legislature, and this rule applies to primary election laws.

Under the Constitution of Florida the Legislature has no power to create canvassing committees or boards with final judicial power to pass upon purely judicial questions arising under the primary election laws.

Section 260 of the General Statutes of 1906 provides the only occasion when, and the method by which, the right of a person to vote at a primary election can be questioned, and this is to be done at the time such person offers to vote. The inspectors then hear the evidence and then determine for or against the rights of persons offering to vote, as the evidence shall reasonably warrant. This is a necessary ministeral or quasi judicial power, without which no orderly election could be held, but does not exclude proper judicial inquiry.

Section 263 of the General Statutes of 1906 provides that the report of the officers holding an election to the committee (county) shall be in writing, accompanied by the original ballots and poll list and the reasons on which any challenged vote was received or rejected. This was intended to preserve the evidence of what occurred at the polling places, for the consideration of the committee, and does not authorize it to seek or take evidence outside of the returns and reports so far as the legality of any vote is concerned.

Under section 8, c. 5613, p. 95, Laws 1907, a congressional committee in a case of protest are only authorized to review the findings and decisions of a county committee, and have no authority to take testimony outside the returns made to it by a county committee as to the legality of a vote cast at a primary election.

The decisions and rulings of committees are not to be construed as final in the sense that such rulings are absolute to the exclusion of judicial inquiry. The word 'final,' used in these connections, may be understood as meaning that such decisions and rulings when made are final as to the committee making them, so that there shall be no delay in the canvass of the vote.

The primary election law imposes upon inspectors and committeemen very important public functions, in the proper and prompt discharge of which the public has an interest, and these duties cannot be intentionally and unnecessarily shirked or avoided without incurring liability, and such responsibility cannot be avoided by the appointment of proxies simply to avoid trouble and expense.

COUNSEL

Reeves & Watson, for plaintiffs in error.

Blount & Blount & Carter, Raney & Oven, D. A. Finlayson, and W. H Ellis, for defendant in error.

On the 27th of July, A. D. 1908, an alternative writ of mandamus was issued by the Honorable John W. Walone, judge of the circuit court in and for Leon county, on the relation of Dannitte H. Mays, against 14 persons, including the plaintiffs in error, reciting, in substance:

First. That the Democratic party in the state of Florida, acting under the provisions of chapter 5014, p. 160, Acts 1901, Laws of Florida, entitled 'An act to regulate the holding of political primary elections in the state of Florida for nominating candidates for any office under the laws of this state, and for nominating delegates to political conventions,' and the amendments thereto, duly called a primary election to be held in the Third congressional district of the state of Florida, on May 19, 1908, for the purpose of nominating a candidate for said district for the House of Representatives of the United States Congress, to be presented on behalf of the Democratic party to the voters of said congressional district at the general election to be held in the state of Florida on the Tuesday next succeeding the first Monday in November, 1908, and provided in said call for a second primary election to be held on June 16, 1908, in said district, in the event no candidate before said primary to be held on May 19, 1908 should receive a majority of the votes cast at said election.

Second. That relator Mays, J. Walter Kehoe, J. C. F. Griggs, and Jefferson D. Stephens, all citizens of Florida and residing within said congressional district, duly qualified as candidates before said primary election held on May 19, 1908; that on ----- day of May, 1908, the Democratic congressional committee for said congressional district met at the city of Tallahassee and canvassed the returns of said primary election and declared that no candidate having received a majority of the votes polled in said primary election for the nomination to the office of member of the House of Representatives from said distract of the Congress of the United States; that a second primary election should be held in said district on the 16th of June, 1908, to nominate a candidate for said office; that relator and J. Walter Kehoe having received a greater number of votes in said primary of May 19, 1908, than were cast for said Griggs and Stephens, the said committee declared relator and said Kehoe should participate in the second primary for nomination to said office, and that in said second primary the voters should choose between relator and said Kehoe as the Democratic candidate for said office.

Third. That on June 16, 1908, the second primary election was held pursuant to the call and the statutes, and relator and said Kehoe were candidates for nomination for member of the House of Representatives of the Congress of the United States from said district.

Fourth. That said second primary election was held in pursuance of the statutes and the rules and regulations prescribed by the executive committee of the democratic party in the state, and that relator received in said second primary election a majority of the votes cast in said second primary for said position.

Fifth. That the Democratic county executive committees of the several counties of the district met in their respective counties after said second primary election and canvassed the returns from the several precincts in the several counties, and, having completed the canvass, duly certified the result of said primary election in the several counties to the Democratic congressional executive committee for said congressional district.

Sixth. That in said second primary election relator was chosen by a majority vote of all votes cast in said primary election in said district to be the candidate to be presented to the voters of said district on behalf of the Democratic party on said general election to be held in November, 1908, for member of the said House of Representatives; that the certificates made up and duly certified to by the several county Democratic committees in the counties composing the said district show relator was chosen by a majority of 49 votes of all votes cast at said second primary to be the candidate as aforesaid.

Seventh. That A. H. D'Alemberte, J. F. Poore, George W. Ward, J M. Miller, and J. Neil as proxy for J. M. Miller, Milton Pledger, Tom Shuler, and J. F. Shuler as proxy for Tom Shuler, A. J. Alford, M. Bates, C. D. Clark, J. W. Henderson, S. M. Bolton, E. B. Bailey, and Black Ashley constitute the standing or executive congressional committee for the Third congressional district in said state; that said D'Alemberte is chairman of said committee; that it became and now is the duty of said executive committee to convene and canvass the returns of said second primary election as the same were made up, completed, and certified to said committee by the several county executive committees in the said several counties composing said district, and it became and is now the duty of said chairman to cause the name of relator to be certified to the several Democratic executive committees of each of said counties composing said district, as the successful candidate in said second primary election to be presented in behalf of the Democratic party of said state to the voters at said general election to be held in November, 1908, for member of the House of Representatives from said district of the Congress of the United States; that relator has the right by virtue of his aforesaid majority of votes cast in said second primary, by virtue of the canvass of said returns so made up, completed, and certified by the said several county executive committees by the said congressional executive committee, and to the certification of his name to the said county committees, as the successful candidate to be presented on...