Maloney v. Kirk

• Decision Date: 02 July 1968
• Docket Number: No. 36803,36803
• Parties: J. A. MALONEY, Appellant, v. Claude R. KIRK, Jr., Governor of the State of Florida, Appellee.
• Court: Florida Supreme Court

Page 609

212 So.2d 609

J. A. MALONEY, Appellant, v. Claude R. KIRK, Jr., Governor of the State of Florida, Appellee.

No. 36803.

Supreme Court of Florida.

July 2, 1968.

Harvie J. Belser, Bonifay, for appellant.

Earl Faircloth, Atty. Gen., T. T. Turnbull and Robert A. Chastain, Asst. Attys. Gen., for appellee.

PER CURIAM.

Affirmed.

THOMAS, J., concurs.

ROBERTS, J., concurs with opinion.

CALDWELL, C.J., and ADAMS, J., concur and agree with ROBERTS, J.

ERVIN, J., concurs with opinion.

DREW, J., dissents with opinion.

THORNAL, J., dissents and agrees with DREW, J.

ROBERTS, Justice (concurring specially):

We here review on direct appeal a judgment of the Circuit Court in and for the Second Judicial Circuit of Florida, Leon County, which declared inoperative under the facts here present § 104.27, Florida Statutes, because of constitutional limitations, and dismissed the complaint. The background, history, questions involved and decision of the trial court are set forth in the opinion of that court in the following language:--

'The plaintiff, J. A. Maloney, a resident and qualified elector of Franklin County, filed a complaint against 'Claude R. Kirk, Jr., Governor of the State of Florida,' asserting the right under Section 104.27, Florida Statutes, to test the title of Mr. Kirk to the office of governor. He charged numerous violations of Section 99.161, Florida Statutes, relating to the receipt, handling and disbursement of campaign funds and payment of campaign expenses in the primary and general elections of 1966.

'On August 17, 1967, this Court entered an order dismissing that complaint with the customary leave to amend.

'Plaintiff has now filed a petition for rehearing, a petition for clarification and an amended complaint. A motion to dismiss the amended complaint has been filed. The amended complaint adds little to the case and the petitions for rehearing and for clarification, for the most part, simply take issue with the conclusions heretofore announced by the court.

'However, because of the great importance of the question presented, the Court has permitted a full reargument of the case and has carefully re-examined the authorities.

'Careful analysis of Section 99.161, Florida Statutes, reveals that by far the greater part of the acts thereby forbidden are the acts of persons other than the candidate and, consequently cannot form a foundation for a proceeding against the successful candidate under Section 104.27. Most of the charges against Mr. Kirk fall in that class, or relate to acts not in any manner prescribed by Section 99.161.

'It will be observed that Section 104.27 authorizes penalties against persons other than candidates. Corporate charters, racing permits, and franchises to operate public utilities may be revoked for violations of Section 99.161.

'When subsection 9 of Section 104.27 provides that:

'Any elector having information of any violation of Section 99.161 may file a petition in any circuit court of this state in the county in which the person or persons violating Section 99.161 resides,'

it does not limit such suits to proceedings against successful candidates. In its broadest aspect, Section 99.161 has only a very limited application to acts of candidates themselves.

'However, the complaint does allege facts which, if true, charge Mr. Kirk with some violations of this statute, and, if the statute may be validly applied to him, the complaint must be entertained by the Court.

'Section 99.161 relates exclusively to campaign funds of candidates for public office. It forbids certain persons making contributions to candidates. It fixes the maximum that any person may contribute. It regulates in great detail the manner and time of receiving, reporting and disbursing these funds. It does not limit or regulate the purposes of expenditures of these funds except that it forbids expenditures for advertising in certain publications; it forbids certain expenditures in behalf of a person before he becomes a candidate; it prohibits a candidate paying for the privilege of speaking at a political meeting and forbids candidates paying for political polls not under their control.

'In the case at bar no charge is made of any expenditure of funds for an illegal purpose as distinguished from alleged failures to follow the letter of the statute in the mechanical process of paying campaign expenses.

'The complaint does allege numerous instances in which, it is charged, this statute was not complied with.

'Section 104.27 provides, in part:

'(2) The nomination or election to office of any person who wilfully violates the provisions of § 99.161, or cause to violate, may be declared void by the court of competent jurisdiction in which event the nomination for office shall be held as in other cases where a vacancy occurs.

'* * *

'(9) Any elector having information of any violation of § 99.161 may file a petition in any circuit court of this state in the county in which the person or persons violating said § 99.161 resides * * *

'The final decree entered by the court in each case shall make a finding of fact that § 99.161 was or was not violated, as the case may be. If the decree of the circuit court finds as a fact that § 99.161 was violated by any nominee * * * the officer responsible for issuing the certificate of nomination or office * * * shall immediately revoke the certificate of nomination or office as may have been issued, or in case such certificate has not been issued he shall withhold the same.'

'It will be observed that Section 104.27 does not authorize a decree voiding an election for violation of any statute except Section 99.161.

'It is elementary that the legislature may enact any statute not forbidden by the state or federal Constitution. But necessarily implied prohibitions are as binding as those expressed in specific language.

'Article VI of the Constitution declares who are qualified electors of the state.

'Section 3, Article IV of the Constitution, fixes affirmative qualifications which are prerequisites to the holding of the office of governor ¹, and Section 5, Article VI specifies disqualifications which prohibit certain persons from holding that office. ²

'Section 2, Article IV, provides that 'the governor shall be elected by the qualified electors of the state.' Section 6, Article VI, requires that 'in all elections by the people, the vote shall be by ballot.' And Section 9, Article VI directs that 'The legislature shall enact such laws as will preserve the purity of the ballot.' Section 26, Article III, is as follows: 'Laws shall be passed regulating elections, and prohibiting under adequate penalties, all undue influence thereon from power, bribery, tumult or other improper practices.'

'It will be observed that the Constitution, in implementing that basic principle stated in Section 2 of the Declaration of Rights that 'all political power is inherent in the people' has very carefully outlined who may vote, and who may be elected to the office of governor. Within these limits, the legislature is charged with the responsibility of regulating the election processes so as to protect the political rights of the people.

'But the legislature could not enact a law denying the franchise to holders of racing permits, ³ or liquor licenses, ³ to railroad officials, ³ or to utility operators ³ on the theory that this would tend to 'preserve the purity of the ballot,' or prohibit 'undue influence' upon elections 'from power, bribery, tumult or other improper practices.' The reason is simple. The Constitution has specified who are qualified electors and thus entitled to vote and the legislature may not deny the franchise to any person to whom it is guaranteed by the Constitution even though the legislature might feel that some classes of persons might abuse the privilege of voting.

'The right of the people to choose their chief executive which is guaranteed by the Constitution vests in the people the right to choose for that office any one of those persons possessing the positive qualifications specified in the Constitution and not disqualified for any of the reasons therein stated. At the same time, it guarantees to every citizen possessing the qualifications, and not subject to any of the disqualifications, established in the Constitution the right to aspire to the office of governor, and if elected, to serve; subject, of course, to the power of impeachment and removal. The legislature may no more deny these rights under the guise of preserving the purity of elections than it may deny the franchise to persons qualified under the Constitution who it might decide would exercise an evil influence in political life.

' When the Constitution has dealt with a subject in such manner as to clearly indicate that it was the intent of the authors that the coverage be complete, the legislature is, by implication, denied the power to take from or to add to the constitutional provisions. This rule is particularly applicable to a specification of who may and who may not serve as governor if duly chosen by the people.

'There was a time when the Constitution forbade a bank officer being elected governor ⁴ and forbade a minister of the gospel serving in the legislature or as governor. ⁵ These prohibitions were clearly expressed in the Constitution. They were later removed by vote of the people, other qualifications and disqualifications being retained. This action of the people constituted a determination that persons following these callings should not, for that reason, be excluded from these public offices. The legislature obviously could not override this determination by the people and, by statute, reinstate these disqualifications.

'The Supreme Court of Florida in the case of Thomas v. State, 58 So.2d 173 (34 A.L.R. 140), discussed in great detail the power of the legislature to fix qualifications of constitutional officers in addition to those prescribed in the...