Pickett v. Russell

• Decision Date: 05 June 1900
• Citation: 42 Fla. 634,28 So. 764
• Parties: PICKETT v. RUSSELL.
• Court: Florida Supreme Court

28 So. 764

42 Fla. 634

PICKETT v. RUSSELL.

Florida Supreme Court

June 5, 1900

Appeal from circuit court, Duval county; John W. Malone, Judge.

Bill for injunction brought by G. W. Russell against William B Pickett, as tax assessor of Duval county. From an order refusing to dissolve the injunction, defendant appeals. Reversed.

Taylor C.J., dissenting.

Syllabus by the Court

SYLLABUS

1. Equity has jurisdiction to enjoin the assessment and collection of an illegal tax levied upon real estate, which if assessed or collected, will cast a cloud over the title to such real estate; and where such levy, to be valid, must be authorized by the result of an election previously held, the court of equity has jurisdiction, in the absence of other remedies at law, to inquire into the validity of such election, in so far as the authority to levy and collect the tax is derived therefrom.

2. Section 8, art. 9, Const. 1885, does not require taxes legally assessed to be paid as a prerequisite to the institution of proceedings for relief against illegal taxes but only that such payment must be made before the applicant for relief is relieved from the illegal tax. If it is made to appear to the court that any tax is due by the applicant which it is his duty to pay before obtaining the relief sought by his application, the court should afford the applicant an opportunity to pay the tax legally assessed, and, if not paid as required, dismiss the application for relief against illegal taxes.

3. The trustees of a school district organized under sections 10, 11, art. 12, Const. 1885, and chapter 4336, Laws, approved May 20, 1895, ought to be made parties defendant to a bill filed against the tax assessor of the county in which such school district is situated to enjoin him from assessing a district school tax for such district alleged to be illegal, but the mere failure to make them parties does not necessarily require that a temporary injunction against the assessor, granted upon such bill, be dissolved by an appellate court.

4. An election held under the provisions of chapter 4336, Laws, approved May 20, 1895, to determine the millage to be assessed and collected for a school district, will not be declared void because a specified rate of millage was printed on the official ballots, when it appears that blank spaces or lines were left thereon for expressing a different rate by individual voters, that voters were not prohibited from changing the printed rate to any other rate desired, and that facilities for marking and writing on ballots by voters were provided at each polling place, and where it is not shown that any voter desired, or was denied the right, to vote for a rate other than that printed, and that the result of the election would have been different if such particular rate had not been printed on the official ballots.

5. It is not essential to the validity of an election held to determine the rate of millage to be levied and assessed for a school district that there shall have been a previous registration of the qualified electors of the district that pay a tax on real or personal property, as neither the constitution nor any statute requires such registration. Taylor, C.J., dissenting.

6. The provisions in chapter 4336, Laws, approved May 20, 1895, restricting the right to vote to those 'registered and qualified voters' who are taxpayers on real or personal property, refer to registration in the county registration books; and, where a special election under that chapter is held intervening two general elections, the fact that the county registration books were not opened for registration immediately prior to the special election will not avoid the election, when it is not denied that they were duly opened for the preceding general election, and it is not shown that there were persons not registered, but qualified to register therein, who were taxpayers upon real or personal property in the school district, or where it is not shown that the result of the election could or would have been different if the county books had been opened for registration for the special election.

7. The fact that inspectors of an election were furnished lists of registered voters not certified, instead of the original registration books or certified copies, when it is not denied that the lists furnished corresponded precisely with the original registration books, is not sufficient to avoid an election.

8. Where inspectors of an election held under chapter 4336, Laws, approved May 20, 1895, were furnished lists of registered voters corresponding with the county registration books, together with a list made by the county superintendent of schools, showing the names of those persons on such list who did not appear by the tax books to be taxpayers on real or personal property in the district, and the inspectors refused to permit any person to vote except those whose names were on both lists, the election will not be held void, in the absence of a showing that a number sufficient to change the result, lawfully entitled to vote, were by the means mentioned denied the right to vote.

9. The rejection of votes from legal voters, not brought about by fraud, and not of such magnitude as to demonstrate that a free expression of the popular will has been suppressed, is not sufficient to avoid an election, at least unless it be shown that the voters rejected would have changed the result.

10. The delay of less than an hour in opening the polls, caused by the failure of the inspectors originally appointed to appear, necessitating the selection of others in their stead, will not avoid an election, where it is shown that only one person was prevented from voting by the delay, and it is not shown that his vote would have changed the result.

11. Where persons act as inspectors of election, are recognized by the electors as election officers, and make returns as such, which are duly canvassed, they are officers de facto, and the election cannot be declared void for a mere irregularity in the manner of their appointment.

12. Returns of elections held under the provisions of chapter 4336, Laws, approved May 20, 1895, are properly made to the board of public instruction, and such board has authority to canvass the returns and declare the result.

13. The fact that many ballots cast were improperly rejected by the inspectors as being erroneously marked will not avoid the election, unless it be shown that they were rejected fraudulently, or that the rejected ballots would have changed the result.

14. Chapter 4336, Laws, approved May 20, 1895, is not inoperative because neither it nor any other statute provides a method, by registration or otherwise, of ascertaining who are the qualified electors of a school district or proposed school district, paying taxes on real or personal property, and therefore entitled to vote at elections authorized by it. Taylor, C.J., dissenting.

15. The provision of chapter 4336, Laws, approved May 20, 1895, to the effect that it shall require a majority of the votes of those voting at an election called under that statute to determine any matter in the affirmative, is not, when applied to an election to determine whether a special district school tax may be levied, in conflict with that clause in section 10, art. 12, Const. 1885, which authorizes the legislature to provide for levying and collecting a district school tax 'whenever a majority of the qualified electors thereof that pay a tax on real or personal property shall vote in favor of such levy.'

COUNSEL

Fleming & Fleming, for appellant.

William B. Young, for appellee.

On August 22, 1899, appellee filed his bill in equity in the circuit court of Duval county against appellant, alleging that on June 20, 1899, and at the time of filing the bill complainant was a qualified elector of Duval county, residing in the city of Jacksonville, and a taxpayer, paying taxes on real and personal property situated in said city; that on June 20, 1899, a pretended election was held in the several election precincts of Duval county, which were within the corporate limits of the city of Jacksonville, to determine whether said division of Duval county should be a sub school district, to elect three school trustees therefor, and to determine the millage to be assessed and collected annually during the next succeeding two years; that A. E. Sawyer, J. C. Cooper, and O. H. Hodgson claim to be such trustees elected at such election, and have filed a written statement with defendant setting forth the boundary of said subdistrict, and the rate of taxation to be levied on the real and personal property therein, and demanded that defendant assess a tax of three mills upon the property of complainant and others situated in said city for the year 1899; that on August 17, 1899, the board of county commissioners of said county made an order levying and directing defendant to assess an official school tax of three mills upon the taxable property of said school district, as determined by said election of June 20, 1899; that, unless restrained, defendant will immediately assess said special tax, attach his warrant to the assessment roll, and deliver same to the collector of taxes; that the majority announced as in favor of the levy of said tax at said election was 23; that said election for the imposition of said tax is null and void, upon the following grounds:

(1) That the electors offering to vote were required to vote an official ballot, restraining them to voting for or against a levy of three mills, a copy of said ballot being as follows:

Vote for one.

For Subdistrict and Three-Mill Levy.

YES.

NO.

Vote for three.

For Subdistrict Trustees.

J. C. Cooper.

A. E. Sawyer.

O. H....