Richey v. Town of Indian River Shores, 75--1441

• Decision Date: 24 September 1976
• Docket Number: No. 75--1441,75--1441
• Citation: 337 So.2d 410
• Parties: Rosemary RICHEY, as Supervisor of Elections of Indian River County, Florida, Appellant, v. TOWN OF INDIAN RIVER SHORES, a Municipal Corporation of the State of Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 410

337 So.2d 410

Rosemary RICHEY, as Supervisor of Elections of Indian River County, Florida, Appellant, v. TOWN OF INDIAN RIVER SHORES, a Municipal Corporation of the State of Florida, et al., Appellees.

No. 75--1441.

District Court of Appeal of Florida, Fourth District.

Sept. 24, 1976.

Robert L. Shevin, Atty. Gen., and John A. Barley, Asst. Atty. Gen., Tallahassee, for appellant.

Gordon B. Johnston of Sharp, Johnston & Brown, and James T. Vocelle of Vocelle & Gallagher, Vero Beach, for appellees.

PER CURIAM.

We have for review a final judgment declaring, among other things, that the qualifications for registering as a municipal elector set forth in Chapter 29163, Laws of Florida, 1953, (the Charter of the Town of Indian River Shores) were not affected by the portion of Chapter 73--155, Laws of Florida (1973), that made mandatory the adoption of the single permanent registration system. In pertinent part Chapter 29163 provides:

'Section 1. Registration: There shall be a registration book to register all qualified electors of the municipality. The Town Council shall prescribe the form thereof and the oath to be administered. Registration books shall be open for registration of voters or electors not less than thirty (30) days before each and every municipal election.

'Section 2. Qualification of Electors: Every person of the age of twenty-one years or over, . . . and who has an immediate beneficial ownership, interest, legal or equitable in the title to a fee simple estate in land located within the limits of the said town for not less than six months, or shall have resided within the limits of the said town for not less than six months prior to the date of registration for election, shall be deemed a qualified elector to vote in all elections pertaining to municipal affairs of the Town of Indian River Shores, excepting only Bond Elections. Qualification of electors at Bond Elections held by the municipality shall be the same as provided by the general law of the State of Florida for elections where only freeholders are qualified to vote. The term 'immediate beneficial ownership' shall be construed to include both a husband and wife where title to real estate is held in the name of the husband and wife. Provided, however, that the following classes of persons shall not be entitled to vote: Persons who are insane or idiotic, or who may have been convicted of any felony by any Court of Record; Persons who may have been convicted of bribery, or larceny, or perjury.' Article VI § 2, Chapter 29163.

In pertinent part, Chapter 73--155, provides:

'Section 1. Section 98.041, Florida Statutes, is amended to read:

98.041 Permanent single registration system established; effective date.--

A permanent single registration system for the registration of electors to qualify them to vote in all elections is provided for the several counties And municipalities. This system shall be put into use by all municipalities prior to January 1, 1974 and shall be in lieu of any other system of municipal registration. Electors shall be registered in pursuance of this system by the supervisor or by precinct registration officers, and electors registered shall not thereafter be required to register or reregister except as provided by law.

'Section 2. Section 98.091, Florida Statutes, is amended to read:

98.091 Use of system by municipalities.--

(1) The board of county commissioners, with the concurrence of the supervisor of elections, may arrange the boundaries of the precincts in each municipality within the county to conform to the boundaries of the municipality subject to the concurrence of the governing body of the municipality. All binders, files, and other equipment or materials necessary for the permanent registration system provided by § 98.041 shall be furnished by the board of county commissioners; provided, each municipality in a county shall reimburse the board of county commissioners fifty percent (50%) of the cost of such binders, files, and equipment necessary for the precincts within the municipality, unless agreed to otherwise by the county and the municipality; and provided further no such reimbursement shall be required where such a system is presently in effect by law.

(2) The supervisor of elections shall deliver the records required for a municipal election to the municipal elections boards or other appropriate elections officials on the morning of the day before the election and collect them on the day after the election. The municipality shall reimburse the county for the actual costs incurred.

(3) Any person who is a duly registered elector pursuant to this chapter and who resides within the boundaries of a municipality is qualified to participate in all municipal elections, the provisions of special acts or local charters notwithstanding.'

Appellees filed suit for declaratory decree seeking to determine 1) 'who are qualified to register with appellant, the Defendant, ROSEMARY RICHEY, Supervisor of Elections of Indian River County, Florida, as qualified electors to vote in all elections in the Town of Indian River Shores and to be qualified to hold the office of member of the Town Council thereof' and 2) 'that Section 2 of Article VI of Chapter 29163, Laws of Florida . . . is the law relating to the qualifications of electors to vote in all elections in said Town and to hold office as a member of the Town Council of said Town.' The complaint prayed for an order directing appellant 'to register and qualify as qualified electors to vote in all elections in the Town of Indian River Shores all persons meeting the qualifications of such electors as set forth in Section 2 of Article VI of Chapter 29163, Laws of Florida.'

The case was presented upon the pleadings and argument of counsel without the adduction of any testimony. The trial judge entered a comprehensive final judgment in which he found, among other things that: (1) Section 2 of Article VI of Chapter 29163, Laws of Florida, relating to the qualifications of electors is a valid special act and was not repealed by Chapter 73--155, Laws of Florida; (2) it is the duty of appellant to carry out and obey the mandate of said law; (3) appellee Alex MacWilliam, Jr., is qualified to hold office in the Town of Indian River Shores. The judgment then directed appellant to 'accept as qualified to vote in all municipal elections in the Town of Indian River Shores all persons heretofore registered under the provisions of the Town Charter, and shall provide for the registration . . . of any person who seeks to register as a qualified elector in the Town of Indian River Shores who possesses the qualifications set forth in Sections 97.041(1), 98.091(3) and 166.032, Florida Statutes, or in Section 2, Article VI of Chapter 29163, Laws of Florida . . .'

Refined to its simplest form the primary question involved here is, does the Chapter 73--155 amendment of Section 98.041, Florida Statutes, preclude individuals from registering to vote in municipal elections of the Town of Indian River Shores if those individuals are not qualified to register with the County Supervisor of Elections so as to become qualified State electors in accordance with Section 98.041 as amended?

Chapter 73--155, a general act, did not expressly repeal the provisions of the Charter of Indian River Shores, a special act, insofar as qualification of electors is concerned. So the answer to the foregoing question depends upon a determination of whether or not the general act repealed or superseded the relevant portions of the special act by implication.

As the trial judge points out in the final judgment, repeal of a statute by implication is not favored. As the Supreme Court stated in Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So.2d 194, 196, 165 A.L.R. 967 (1946):

'It is an elementary proposition that amendments by implication are not favored and will not be upheld in doubtful cases. Before the courts may declare that one statute amends or repeals another by implication it must appear that the statute later in point of time was intended as a revision of the subject matter of the former, or that there is such a positive and irreconcilable repugnancy between the law as to indicate clearly that the later statute was intended to prescribe the only rule which should govern the case provided for, and that there is no field in which the provisions of the statute first in point of time can operate lawfully without conflict.'

Thus, 'if courts can by any fair, strict, or liberal construction, find for the two provisions a reasonable field of operation, without destroying their evident intent and meaning, preserving the force of both, and construing them together in harmony with the whole course of legislation upon the subject, it is their duty to do so.' Curry v. Lehman, 55 Fla. 847, 47 So. 18, 21 (1908).

But try as we might to find compatibility between Sections 1 and 2 of Article VI of the Town Charter in question and Section 1 of Chapter 73--155, we are unable to do so. Consequently we conclude that the two legislative enactments are repugnant, a conclusion which impels us to hold that the legislature intended Section 1 of Chapter 73--155 to prevail, thus repealing by implication Sections 1 and 2 of Article VI of Chapter 29163, Laws of Florida.

Reviewing the repugnant aspects of the two enactments we find Section 1, Article VI of the Special Act provides for a municipal registration book, the forms to be furnished, the oath to be taken, and the time periods for the book to be open. On the other hand the title to Chapter 73--155 states, among other things, that the act relates

'to municipal elections; amending § 98.041, Florida Statutes, to provide a single permanent registration system for all elections held within a county, Including municipal elections; amending § 98.091, Florida Statutes, to provide procedures for municipal uses of county election books; providing...