Ervin v. Capital Weekly Post, Inc.

• Decision Date: 19 June 1957
• Parties: Richard W. ERVIN, as Attorney General of the State of Florida, Appellant, v. CAPITAL WEEKLY POST, Inc., a Florida corporation, and P. O. Riley, Appellees.
• Court: Florida Supreme Court

Page 464

97 So.2d 464

Richard W. ERVIN, as Attorney General of the State of Florida, Appellant, v. CAPITAL WEEKLY POST, Inc., a Florida corporation, and P. O. Riley, Appellees.

Supreme Court of Florida, Special Division A.

June 19, 1957.

Rehearing Denied Sept. 18, 1957.

Richard W. Ervin, Atty. Gen., Howard S. Bailey and James L. Graham, Jr., Asst. Attys. Gen., for appellant.

Weldon G. Starry, Tallahassee, for appellees.

PARKS, Associate Justice.

This is an appeal from the final decree of the Circuit Court of Leon County, entered upon the bill of complaint of the Attorney General praying for an injunction against publication of the hereafter mentioned advertisement, and the answers of the defendants, Capital Weekly Post, Inc., a Florida corporation, and P. O. Riley. The plaintiff and defendants both moved for a summary decree. Upon hearing, the court denied the injunction and entered the decree from which this appeal was taken.

The material facts emerging from the pleadings are not complicated and call for the construction of certain parts of F.S. Section 99.161, F.S.A., in relation to the proposed publication in Capital Weekly Post, a newspaper published and circulated in Leon County by Capital Weekly Post, Inc., co-defendant, of an advertisement tendered by defendant, P. O. Riley.

According to the allegations of the complaint, Riley delivered the advertisement to his co-defendant, together with the agreed consideration, for its publication in the issue of November 17, 1955. The advertisement urged and advocated the candidacy of the Honorable Fuller Warren for the office of Governor with relation to the 1956 primaries which were to be held in the spring of that year. It consisted of Mr. Warren's picture, underneath which appeared the words 'Let's Return Fuller to Tallahassee,' the undisputed meaning of which was 'Let's Return Fuller Warren to Tallahassee as Governor.'

At that time Mr. Warren had made no announcement to any person or to the public that he would be a candidate for that office. Neither defendant Riley nor the Capital Weekly Post, Inc., had consulted Mr. Warren or anyone else on his behalf concerning the proposed publication of the advertisement. Similar publications had already been made in the press of twelve or fourteen cities of the state. The record fails to disclose that Mr. Warren had any knowledge of or connection with any of these publications. It was alleged in the complaint that the advertisement was for campaign purposes in 'the promotion' of and 'in furtherance' of his, Mr. Warren's, candidacy and this was denied in the answer. Pending the determination of the legality of the publication it was agreed that publication of the advertisement would be withheld.

The lower court, as heretofore noted, denied the injunction and dismissed the bill, holding that expenditures in the promotion of an unannounced candidacy were not condemned by the election laws. In reaching this conclusion, the court applied to the applicable provisions of the election code the definition of 'candidate' set forth in F.S. Section 99.011, F.S.A. This section provides:

'The word 'candidate' shall mean any person who has announced to any person, or to the public, that he is a candidate for a certain office.'

The effect of the decree is that until a person has announced his candidacy within the meaning of Section 99.011, F.S.1955, F.S.A., unlimited sums of money expended for newspaper advertisements, communications or other media, may be resorted to in urging or promoting the candidacy of such person.

At the threshold of this appeal the appellees contend that the matter in litigation is moot as to them and for that reason this court should not entertain the appeal. This contention has been settled contrarywise in Bowden v. Carter, Fla., 65 So.2d 871, 873, wherein the court said:

'It is suggested by petitioner-appellee that inasmuch as he has now changed his registered party affiliation to Republican, the operation of Section 101.111 does not now operate to deprive him of his right to vote either in his party primary elections or in general elections, wherefore all questions raised on this appeal are moot as to him. We think, however, that the declaration by the lower court of the invalidity of portions of Section 101.111 as applied in primary elections is of sufficient public interest that this court may review it. Pace v. King, Fla., 38 So.2d 823.'

We reiterate that an appellate court does not lose jurisdiction of a cause even though the matter in controversy has become moot as to one or more of the litigants in cases involving wide public interest or where such matters involve the duties and authority of public officials in the administration of the law and are of general interest to the people. The future administration of the election law by public officials requires the hearing of the merits of the appeal. See State ex rel. Railroad Com'rs v. Southern Tel. & Const. Co., 65 Fla. 67, 61 So. 119; Barrs v. Peacock, 65 Fla. 12, 61 So. 118; Pitt v. Belote, 108 Fla. 292, 146 So. 380; Joughin v. Parks, 107 Fla. 833, 143 So. 145, 147 So. 273.

In the disposition of the cause we find there is no need to discuss or determine the constitutional questions asserted by the defendants who insist that their rights of free speech and freedom of the press guaranteed them would be denied or impaired should the court uphold the allegations of the bill. However, we note that the cases of Smith v. Ervin, Fla., 64 So.2d 166, and Ervin v. Finley, Fla., 64 So.2d 175, 176, seem to have resolved the matter against such contention.

The contention of the Attorney General is that considering the intent of the statutes as a whole, the advertising in question is condemned in point of time as a violation of the election code. In other words, he argues the statutes condemn advertisement or expenditure of money in the promotion of a candidacy by any person prior to an announcement by the candidate. He argues that F.S. Section 99.011, F.S.A., defining a candidate, was old legislation having originally been incorporated in the Bryan Primary Law of 1913 and brought forward in the several revisions of our election laws but that F.S. Section 99.161, F.S.A., was a 1951 act independent of the election code (amended in 1955 by adding Subsection 99.161(2)(d)), not burdened with that definition and by legislative action that 1951 act was substituted for and superseded the F.S. Section 99.161, F.S.A., originally prepared for the revised election code. Furthermore, where obviously a definition is contrary to or destructive of the legislative intent of an act of which it is a part, it is not sacrosanct but is subject to statutory construction in relation to conflicting provisions of the act, and, in relation to the curtailing of campaign activities with respect to the time element, the 1955 legislature did, by Section 99.161(2)(d), condemn and prohibit advertisement by the candidate or any person in his behalf 'prior to noon of the first filing date for the nomination which said candidate seeks * * *.'

It is further argued that, since the adoption of Section 99.161(2)(d) in 1955, expressing the intent that no money shall be spent directly or indirectly for campaign advertising for the promotion of anyone's candidacy prior to the first day upon which a candidate may qualify, the application of the definition of 'candidate' in Section 99.011 would render ineffectual and abortive the provisions of Section 99.161(2)(d). The result of such construction would permit the candidate, so long as he has not announced for office, to avoid the requirement to comply with any provision of Section 99.161, and until such announcement shall or may be made, those interested in him may urge the candidacy without restraint and thereby completely thwart the legislative intent regulating the matter. Such is the contention of the Attorney General, vigorously pressed in argument before this court and in his excellent brief filed in the cause.

This argument in support of such construction is persuasive and forceful and, if adopted, we may reasonably speculate would fortify and complement the wholesome regulation of candidacy expenditures. Upon a careful study of the act, however, we are unable to go along with it.

In the consideration and amendment of F.S. Section 99.161, F.S.A., the legislature must have carefully considered its general revision of the election code both in 1951 and in 1955, when it added provisions to Section 99.161 designated (2)(d). The finished work carries the earmarks of a thorough consideration of the regulations adopted. We are unwilling to believe that in the revision of these laws it overlooked the definition of 'candidacy' retained in F.S. Section 99.011, F.S.A., nor are we satisfied that the legislature failed to evaluate the meaning and impact of that definition on the regulatory provisions. On the contrary we must hold the retention of the definition was...