Joughin v. Parks

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Joughin v. Parks, 107 Fla. 833, 143 So. 145 (Fla. 1932)
• Decision Date: 27 June 1932
• Parties: JOUGHIN, Sheriff v. PARKS, Judge, et al.

143 So. 145

107 Fla. 833

JOUGHIN, Sheriff v. PARKS, Judge, et al.

Florida Supreme Court

June 27, 1932

Application for writ of prohibition by R. T. Joughin, as Sheriff of Hillsborough County, and individually, against L. L. Parks Judge, and others.

Rule nisi in prohibition issued.

COUNSEL Chas. F. Blake, Frank T. Phillips, Mabry Reaves & White, and R. J. Duff, all of Tampa, for petitioner.

Wm. C Pierce, of Tampa, for respondents.

OPINION

PER CURIAM.

An injunction will not issue for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held, because the holding and conduct of an election during its progress is a political matter with which courts of equity have nothing to do. Pomeroy's Equity Jur. (4th Ed.) §§ 1753, 1754, and cases cited. See Markert v. Sumter County, 60 Fla 328, 53 So. 613, Ann. Cas. 1912C, 690, and cases cited.

The rule in this state was only modified in the recent case of McGregor v. Burnett (Fla.) 141 So. 599, to the extent of holding that, where 'prior to an election' palpable violation of the registration or election laws is about to take place, and is properly charged in a bill in equity by an elector, he may have 'injunction or such other appropriate remedy as is available to him under the law' to prevent fraud and palpable violations of the election laws which are charged as about to be committed prior to the election, such as was the situation in that case dealt with.

The Constitution provides (section 9, article 6) that the Legislature shall enact such laws as will reserve the purity of the ballot, and, in the absence of some statute on the subject, courts of equity are without jurisdiction to violate the general rule referred to in the first paragraph of this opinion by substituting through a court of chancery remedies for alleged threatened violations of the election laws, or by controlling or directing the manner in which the election shall be conducted on the day appointed by law for carrying it out.

The case of People v. Tool, 35 Colo. 225, 86 P. 224, 229, 231, 6 L. R. A. (N. S.) 822, 117 Am. St. Rep. 198, merely recognizes the right of the Attorney General in his official capacity to an injunction under the Colorado law to prevent and redress public wrongs, such as a conspiracy to carry an election by fraud, and is not applicable to the case at bar, if applicable in this state at all under our previous holding in Markert v. Sumter County, 60 Fla. 328, 53 So. 613, Ann. Cas. 1912C, 690, where we held that 'the jurisdiction of courts having general equity powers does not include mere election contests of any kind, unless so provided expressly or impliedly by organic or statute laws.'

A writ of prohibition is proper to restrain a court of equity about to act in excess of its powers, where no plain, complete, and adequate remedy by appeal is shown. See State v. Board of Trustees of Salvation Army (Fla.) 135 So. 781.

The purpose of the bill and the prayer for relief in this case appearing to be one to direct or control the mode in which, or of determining the rules of law in pursuance of which, the primary election of June 28, 1932, is to be held in Hillsborough county on the day of the election, by the officers and officials having duties under the law to perform in connection therewith, it appears that the court is acting in excess of its jurisdiction in entertaining such bill, and that a rule nisi in prohibition should issue as prayed.

Rule nisi in prohibition issued.

BUFORD, C.J., and WHITFIELD and DAVIS, JJ., concur.

CONCURRING

ELLIS J. (concurring specially).

In the case of McGregor v. Burnett (Fla.) 141 So. 599, the court seemingly held that a chancery court had jurisdiction by injunction upon a bill filed by a resident voter and taxpayer charging 'fraud or corruption' to restrain an illegal action by a county official which would 'corrupt the ballot and destroy its purity.' The language of the court was: 'That, in cases where fraud or other palpable violation of the registration or election laws is charged prior to an election, any elector is entitled to his relief by injunction or such other appropriate remedy as is available to him under the law.'

The complainant in that case sought an injunction to restrain certain acts of the tax collector in the matter of receiving money for poll taxes and issuing receipts therefor. This court proceeded to discuss the sufficiency of the allegations of the bill, and held that, because 'no charge of fraud or corruption is involved,' the decree dissolving a temporary restraining order and sustaining a demurrer to the bill should be affirmed.

In this departure from the generally accepted rule that, the right of suffrage being political in character, its assertion and protection are not properly matters for the cognizance of courts of equity, this court presumably acted with its customary care after due consideration. No distinctions were made between those acts of 'fraud or other palpable violation of the registration or election laws,' which may have occurred before the day of election and those which may occur on election day. Nor was any explanation made of the phrase 'prior to an election.'

I do not conceive the word 'election,' as used in the statutes regulating elections, to mean that particular phase of the political procedure by which a person is chosen for office, commonly referred to as voting or depositing a ballot in a ballot box. The election is the entir procedure from the preparation of the voting lists to the certification of the result. I therefore interpret the language of the opinion to mean that 'any act of fraud or corruption' having for its purpose the corruption of the ballot or destruction of its purity would be enjoined upon bill filed by a resident voter and taxpayer, whether the alleged act of 'corruption or fraud' occurred before the day fixed by law for depositing ballots or whether they occurred on that day or even after that day and before the certification of the result, the election completed.

It is quite generally conceded to be the rule that the right of suffrage is a political right as distinguished from a civil right, and that the assertion and protection of a political right is not a matter properly for the cognizance of a court of equity, for the subject of the jurisdiction of such courts is civil property, and they are not concerned with the maintenance of purely political rights where no civil or property right is involved. See 9 R. C. L. 987, 1001, and cases cited; Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C, 980, note; 14 R. C. L. 375; Fletcher v. Tuttle, 151 Ill. 41, 37 N.E. 683, 25 L....