Du Bose v. Kelly

• Decision Date: 06 May 1938
• Citation: 181 So. 11,132 Fla. 548
• Court: Florida Supreme Court
• Parties: DU BOSE v. KELLY, City Clerk (TRYON, Intervenor).

181 So. 11

132 Fla. 548

DU BOSE v. KELLY, City Clerk (TRYON, Intervenor).

Florida Supreme Court

May 6, 1938

Rehearing Denied May 21, 1938.

Suit by John W. Du Bose against Frank J. Kelly, as City Clerk of the City of Miami, to enjoin defendant from proceeding with a recall election, wherein Harry J. Tryon intervened. From an order denying plaintiff's motion for a restraining order plaintiff appeals.

Affirmed.

BUFORD J., dissenting. Appeal from Circuit Court, Dade County; Paul D Barns, Judge.

COUNSEL

Casey, Walton & Spain, Pine & Giblin, Marion E. Sibley, and R. R. Rhudy, all of Miami, and J. Velma Keen and Whitfield & Whitfield, all of Tallahassee, for appellant.

John W. Watson, Jr., of Miami, for appellee Kelly.

George E. McCaskill and Abe Aronovitz, both of Miami, and James Messer, Jr., of Tallahassee, for appellee Tryon.

OPINION

CHAPMAN Justice.

The parties to this cause in this opinion will be referred to as they appeared in the lower court, as plaintiff and defendant. On the 25th day of April, 1938, plaintiff filed in the circuit court of Dade county, Fla., his bill of complaint seeking a restraining order against the defendant enjoining him from taking certain steps incident to a recall election under the charter provisions of the city of Miami, in which it was alleged that there was not a substantial compliance therewith. The plaintiff is a member of the City Commission of the City of Miami. The material provisions are, viz., chapter 9024, Sp.Acts 1921, as re-enacted by chapter 10847, Sp.Acts 1925 (section 12), which provides:

'Procedure for Filing Recall Petition.--Any member of the Commission may be recalled and removed therefrom by the electors of the City as herein provided.

'Any qualified elector of the City may make and file with the City Clerk an affidavit containing the name or names of the Commissioner or Commissioners whose removal is sought and a statement of the grounds for removal. The Clerk shall thereupon diliver to the elector making such affidavit copies of petition blanks for such removal, printed forms of which he shall keep on hand. Such blanks shall be issued by the Clerk with his signature and official seal thereto attached; they shall be dated and addressed to the Commission, shall contain the name of the person to whom issued, the number of blanks so issued, the name of the person or persons whose removal is sought, and the office from which such removal is sought. A copy of the petition shall be entered in a record book to be kept in the office of the Clerk. The recall petition, to be effective, must be returned and filed with the Clerk within thirty (30) days after the filing of the affidavit. The petition before being returned and filed shall be signed by registered voters of the City to the number of at least fifteen per cent (15%) of the total number of registered voters of the City as shown by the City registration books, and to every such signature shall be added the place of residence of the signer, giving the street and number or other description sufficient to identify the place. Such signatures need not all be on one paper, but the circulator of every such paper shall make an affidavit that each signature appended to the paper is the genuine signature of the person whose name it purports to be. All such recall papers shall be filed as one instrument with the endorsements thereon of the names and addresses of three persons designated as filing the same.

'Examination and Amendment of Recall Petitions.--Within ten (10) days after the filing of the petition the Clerk shall ascertain whether or not the petition is signed by the requisite number of registered voters and shall attach thereto his certificate showing the result of such examination. If his certificate shows the petition to be insufficient, he shall forthwith so notify in writing one (1) or more of the persons designated on the petition as filing the same; and the petition may be amended at any time within ten (10) days, after the giving of said notice, by the filing of a supplementary petition upon additional petition papers, issued, signed and filed as provided herein for the original petition. The Clerk shall, within ten days after such amendment, make like examination of the amended petition, and attach thereto his certificate of the result. If then found to be insufficient, or if no amendment was made he shall file the petition in his office and shall notify each of the persons designated thereon as filing it of that fact. The final finding of the insufficiency of a petition shall not prejudice the filing of a new petition for the same purpose.

'Calling of Recall Election.--If the petition or amended petition shall be certified by the Clerk to be sufficient he shall submit the same with his certificate to the Commission at its next meeting and shall notify the Commissioner or Commissioners whose removal is sought of such action. The Commission shall thereupon within ten (10) days of the receipt of the Clerk's certificate, order an election to be held not less than thirty (30) nor more than fortyfive days thereafter. Provided, that if any municipal election is to occur within sixty (60) days after the receipt of said certificate, the Commission may in its discretion provide for the holding of the removal election on the date of such other municipal election.

'Form or Ballot to Recall Commissioner.--Unless the Commissioner or Commissioners whose removal is sought shall have resigned within ten (10) days after the receipt by the Commission of the Clerk's certificate, the form of the ballot at such election shall be as nearly as may be: 'Shall A be recalled?' 'Shall B be recalled?' etc., the name of the Commissioner or Commissioners whose recall is sought being inserted in place of A, B, etc., and the ballot shall also contain the names of the candidates to be elected in place of the Commissioner or Commissioners recalled, as follows: 'Candidates for the place of A, if recalled; Candidates for the place of B, if recalled,' etc., but the Commissioner or Commissioners whose recall is sought shall not themselves be candidates upon such ballot. The name of any elector of the City shall be printed as a candidate for Commissioner at such recall election for the place of the Commissioner to be recalled when a petition in substantially the form provided in Section 7, of this charter, shall be filed in his behalf with the City Clerk, and such petition shall have been signed by at least three per cent (3%) of the total number of registered voters in the municipality and filed with the City Clerk not less than fifteen (15) days before such recall election.

'In case a majority of those voting for and against the recall of any Commissioner shall vote in favor of recalling such official he shall be thereby removed, and in the event the candidate who receives the highest number of votes for his place shall be elected thereto for the balance of the unexpired term.

'If the Commissioner or Commissioners sought to be removed shall have resigned within ten (10) days after the receipt by the Commission of the Clerk's certificate referred to in this Section above the form of ballot at the election shall be the same, as nearly as may be, as the form in use at a regular municipal election.

'Procedure on Refusal of Commission.--Should the Commission fail or refuse to order an election as herein provided within the time required such election may be ordered by any State Court of general jurisdiction.'

Also section 12-A of chapter 14234, p. 1353, Sp.Acts 1929, provides as follows:

'No member of the City Commission shall be recalled or removed from office by the electors of this City, as provided in Section 12 of this Charter, unless twenty-five (25) qualified electors of this City shall make and file with the City Clerk an affidavit containing the name or names of the Commissioner or Commissioners, whose removal is sought, and a statement of the grounds for removal. The Clerk shall thereupon deliver to the electors making such affidavit copies of petition blanks for such removal, and thereupon such further steps and proceedings shall be taken as are provided by said Section 12.'

The initial affidavit, so it is alleged, contained the names of 28 qualified electors of the city of Miami and was drafted under the charter provision supra, and charged the plaintiffs John W. Du Bose, Robert R. Williams, and Ralph B. Ferguson, each commissioners of the city of Miami, substantially as follows:

'1. That said Commissioners, and each of them, have been indicted and now stand indicted by a Grand Jury of Dade County, Florida, for a crime against the State of Florida in connection with their duties and responsibilities as Commissioners of said City and for soliciting or attempting to exact a bribe.

'2. That they, and each of them, have delayed, hindered and obstructed the prosecution of the appeal of the litigation now pending in the United States Court between the Florida Power and Light Company, a corporation, and said City, to the detriment of said City and its citizents.

'3. That they, and each of them, have delayed, hindered and obstructed the prosecution of the appeal of the aforesaid litigation and have thereby delayed consumers of electricity in the City of Miami in obtaining refunds which, in said litigation, have been adjudged to be paid to the citizens of Miami.

'4. That Thomas Grady, an employee of said City, has been indicted and now stands indicted by a Grand Jury of Dade County for a crime against the State of Florida in connection with his duties and responsibilities as an employee of said City in soliciting or attempting to exact a bribe and that said City Commissioners have failed and...