Mckinney v. Bradford County Com'rs

• Decision Date: 09 August 1888
• Citation: 26 Fla. 267,4 So. 855
• Parties: McKINNEY et al. v. BOARD OF COMMISSIONERS.
• Court: Florida Supreme Court

4 So. 855

26 Fla. 267

McKINNEY et al. v. BOARD OF COMMISSIONERS.

Florida Supreme Court

August 9, 1888

Appeal from circuit court, Bradford county; JAMES J. BAKER, Judge.

Action by Matthew L. McKinney and others against the county commissioners of Bradford county for an injunction to restrain the holding of an election. On petition for rehearing. For former opinion, see 3 South. Rep. 887.

Syllabus by the Court

SYLLABUS

On an application for an injunction the chancellor may consider the merits of the bill, and should deny the writ if the case made by it does not entitle the complainant to an injunction.

Where a bill not only fails to allege matter material to the right to a preliminary injunction, but also makes a showing indicating that such matter does not exist, the complainant cannot, on an application for such injunction, avail himself of the showing made by the answer of the existence of such matter without amending his bill.

Where a bill seeks to enjoin county commissioners from holding a county-site election, on the ground that a previous election at which the county-site of the county was located, precludes the calling or holding the second election for a period defined by the statute regulating the subject, which period has not passed, the bill should show that the former election was legal, or such as to preclude the calling of the second one.

If the bill indicates that there was a jurisdictional defect in the proceedings of the commissioners in calling the former election, the injunction should be denied, although the answer of the defendant may make a contrary showing. The complainant cannot avail himself of such showing made by the answer without first amending his bill.

A petition under the present county-site election statute according to the settled construction given it, must, to give jurisdiction to the county commissioners to call an election for the location of the county-site, pray for a change of the location of the county-site. An order of the county commissioners calling an election, and reciting that the petition upon which it is based prayed for an election 'to locate the county-site,' does not of itself show a jurisdictional petition, but indicates that the petition was fatally defective in not showing a desire for a change of location of the county-site. A further recital in the order that it appeared to the satisfaction of the board that the petition was 'regular and in conformity to the statute,' does not change the effect of the previous recital.

Allegations in a bill of complaint that a petition presented to a board of county commissioners under the county-site election statute for the second of the above elections was fraudulent and void, in that it contained signatures not affixed thereto by the voters themselves, or in their presence by any authorized person, and that many of the names signed to the petition were not the same as the names of the voters on the registration lists, who were counted as having signed such petition by the county commissioners in ascertaining that one-third of the registered voters had signed the same, do not show that the petition did not have on it the requisite number of genuine signatures of legally registered voters independent of those to which such objections apply; and, assuming that the questions involved in these objections have not been committed by the legislature to the investigation and judgment of the county commissioners, such allegations do not show that the petition was illegal.

The statute regulating county-site elections does not preclude the use of several petitions signed by different registered voters. Several petitions in proper form, signed by, in the aggregate, 'one-third of the registered voters' of the county, are a 'petition' within the meaning of the statute.

An injunction should not be granted to restrain the holding of a county-site election, when the day for holding such election has passed; nor is an injunction the proper remedy for correcting removal made by county officers pursuant to a county-site election.

COUNSEL

[MCKINNEY V BRADFORD COUNTY COM'RS 4 So. 855(1888)]

C. P. & J. C. Cooper, for appellants.

Bugg & Wills and A. W. Cockrell & Son, for appellees.

OPINION

RANEY J.

The complainants, who are appellants, allege in their bill filed July 21, 1887, that they are residents, tax-payers, and registered voters of Bradford county, and real-estate owners in or near the town of Lake Butler, the county-site; the residence and home of several of them being in said town, and the others residing within a few miles thereof.

That the county-site has been located, and the county records kept, at said town ever since the creation of the county, in 1858, as the county of New River, from which name a change to Bradford was afterwards made. The court-house and jail are located at said place, and owned by the county, and all the county offices are kept and suitably provided for there.

That on March 11, 1885, at a meeting of the board of county commissioners of the county, on a petition 'presented to them by the requisite number of registered voters of said county, an election was ordered to locate the county-site of said county,' and that the notice of such election was published according to law, and the election held at the different precincts of the county on May 5, 1885, in conformity to such order, and in accordance with the published notices, to locate the county-site. A copy of the order for the election is annexed to the bill as part thereof. It recites the presentation of a petition [MCKINNEY V BRADFORD COUNTY COM'RS 4 So. 855(1888)] 'asking for an election to locate the county-site,' and 'it appearing to the satisfaction of the board that said petition is regular and in conformity with the statutes,' and orders an election to be held at the different precincts in the county on the day stated, 'to locate the county-site' of the county, and directs the publication of notice of the election in a newspaper published in the county.

That according to the returns of the election from the several precincts, which returns were canvassed by the county commissioners May 11, 1885, and according to such canvass, 1,277 votes were cast, of which votes Starke received 629 and Lake Butler 648, and the county commissioners declared Lake Butler to have been elected the county-site of said county, and made due entry of the same on their records. The entry is set out in the bill of complaint.

That notwithstanding such election was held with the result aforesaid, the present board of county commissioners have lately entertained a pretended petition for a change of location of the county-seat, and on July 5, 1887, ordered an election for such purpose, the same to take place on August 17, 1887, and have ordered the clerk to publish notice of such election in a newspaper published in the county, and that the clerk has published the notice, and a copy of the same is annexed to the bill.

That there is no statute by virtue of which the election proposed as aforesaid could be held, as the legislature has failed to provide a law to carry into effect section 4 of article 8 of the constitution, 'even if they were not estopped by the action of the board had as aforesaid in May, 1885, and the statute then in existence and of force in such cases and under the general principles of law applicable to matters that ceased to be in fieri and are res adjudicata.'

That under the act approved June 2, 1887, entitled 'An act to provide for a general election, and for the return of elections,' until a new registration is had of voters, as provided therein, and that no such registration has been had in such county, and no provision made to carry the act into effect in said county.

That the said second or pretended petition is fraudulent and illegal in that it contains signatures not affixed thereto by the voters themselves, or in their presence by...