Sauls v. Freeman

• Decision Date: 29 May 1888
• Citation: 24 Fla. 209,4 So. 525
• Court: Florida Supreme Court
• Parties: SAULS et al. v. FREEMAN, County Com'r, et al.

4 So. 525

24 Fla. 209

SAULS et al. v. FREEMAN, County Com'r, et al.

Florida Supreme Court

May 29, 1888

Appeal from circuit court, Volusia county; JOHN D. BROOME, Judge.

Syllabus by the Court

SYLLABUS

The interest which, under the statute of 1862, (section 28, p 337, McClel. Dig.,) disqualifies a judge from sitting in a cause, is a property interest in the action, or in its result. The interest which he may have in common with other citizens in a public matter does not disqualify him.

The fact that a circuit judge signed, with other registered voters of the county, a petition addressed to the county commissioners, asking for a change of the county-site, did not disqualify him, on the ground of interest, to sit in a mandamus proceeding instituted by some of the petitioners to compel the commissioners to call an election on the question of changing the count-site, as it is made their duty to do by the statute.

A judgment on the merits is an absolute bar to a subsequent action on the same claim, and concludes the parties and their privies, not only as to every matter which was offered and received to sustain or defeat the claim, but also as to any other admissible matter that might have been offered for either purpose. The admission, by the pleadings, of material facts, does not constitute an exception to the rule.

A judgment against a county, or its legal representatives, as such, in a matter of general interest to all the people thereof, is, in the absence of fraud between such officials and the opposing parties, binding upon all the citizens of the county.

A judgment in mandamus commanding the county commissioners to call an election on the question of changing the location of the county-site is a bar to a bill in equity instituted by registered voters, other than those who were relators in the mandamus, to restrain the commissioners from moving the county records to the place chosen as the county-site at such election; the matters alleged in the bill being such as could have been set up by the commissioners in themandamus proceeding.

Where it is apparent on the face of a bill for an injunction that the complainants cannot be entitled to any relief, the bill may be dismissed at the hearing of the application for a preliminary injunction.

COUNSEL

Foster & Gunby and John W. Price, for appellants.

Hamlin & Stewart and C. P. & J. C. Cooper, for appellees. This is a bill in chancery, filed by John Sauls and J. H. Bodine against the county commissioners and the clerk of the circuit court of Volusia county, praying an injunction against the removal of the public offices and records of the county from Enterprise to De Land as the county-site of the county.

The allegations not set out in the opinion are substantially, in so far as they need be stated, as follows:

That on February 7, 1888, a petition purporting to contain the names of one-third of the registered voters of said county was presented to, or attempted to be presented to, the county commissioners, asking them to order an election for the change of location of the county-site of the county. That the petition was not examined by the county commissioners, but the matter was postponed till next meeting.

That on the 20th day of the same month, the commissioners, in obedience to a peremptory writ of mandamus issued by Judge BROOME, of the Seventh circuit, met, and ordered an election.

That, at the meeting at which the county commissioners called the election, the petition was not before them, and they made no personal examination of the same, but relied upon a certificate of Faulkner, the clerk of the circuit court, to the effect that he had made a careful examination and comparison of the signatures and names annexed to the petition praying for a change of location of the county-site with the registration lists of the voters on file in his office, and found that the petition contained the named of 825 registered voters of the county, and that the registration list contains the names of 2,272 voters; and that such 'petition contains the names of more than one-third of the registered voters of said county, as appears of record in his office.' This certificate is alleged to have been made by the clerk of his own motion, and that no order was made by the board for the clerk to examine the petition. That he examined it in the presence of the attorney of the city of De Land, who presented the petition with the certificate to the commissioners, and such examination and comparison were not in the presence of the board of commissioners, or by its direction.

That no proper or legal examination of the petition was ever made by the commissioners. As a part of the bill, is annexed an affidavit of Dennis Freeman, chairman of the board of county commissioners. It states that deponent was such chairman on the 7th day of February, 1888, and that, at the meeting of that day, the petition was presented to the board, but that it was not examined by the board, nor did they compare any names thereon with the registration list of the said county, but the consideration of the petition was postponed until the next meeting, viz., the first Monday in March, 1888.

That at the subsequent meeting it was not exhibited or shown to or seen by the board, nor were such lists produced or exhibited to the board at any of the meetings thereof, but the board depended on the certificate of the clerk of the circuit court as to such lists, and that they had no personal knowledge as to whether there were one-third of the voters legally registered in said county on the petition.

That John R. Sauls, with W. R. Fitts, deputy-clerk of the county, has compared the petition with the registration books in the office of the clerk, and finds that over 130 names, viz., 137, do not appear on the registration books, as he can find. A list of names are attached to the bill, marked 'Exhibit B.' That he finds on the petition 156 petitioners who registered at the election held in accordance with article 19, (the local option article,) and under chapter 3700, Laws 1887, which 156 names he declares are not legally registered voters, in that they did not take and subscribe the oath prescribed by the constitution of this state, but another oath, viz., to 'protect and defend the constitution and government of the United States, and the constitution and government of the state of Florida, against all enemies, foreign and domestic,' and to 'bear true faith, loyalty, and allegiance to the same, any ordinance or resolution of any state convention or legislature to the contrary notwithstanding.' The names of those who registered at said election, and the dates of their registration, are attached to the bill. They registered in October and November, 1887.

The proceedings of the commissioners canvassing the vote cast at the election, and ascertaining that De Land was chosen to be the county-site, are set out in extenso, but need not be detailed here.

That Ichabod Dougherty and E. M. Snow signed said petition twice.

That the county commissioners are about to remove the county offices, records, furniture, and property of the county to De Land, and the clerk is about to remove the records of his office from Enterprise to said city, etc.

The other facts are stated in the opinion.

OPINION

RANEY, J., (after stating the facts as above.)

1. Judge BROOME, of the Seventh circuit, on the presentation of the bill to him, on the 6th day of April of the present year, made an order enjoining, until the further order of the court, the defendants (appellees) from moving the county records from Enterprise, the old county-site. Three days afterwards, he dissolved the injunction, and dismissed the bill. From the latter order complainants appealed to the June term. In view of the public interests involved, and by consent of parties, we consented to hear the case at the present term.

2. The first question to be disposed of is that of Judge BROOME'S legal qualification to entertain the mandamus proceedings set up in the bill. He, according to the allegations of the bill, signed the petition to the county commissioners for an election on the question of changing the location of the county-site. It is claimed that, from the fact of being one of such petitioners for an election, he was so interested as to disqualify him to sit in the mandamus proceedings.

The statute of 1862, (section 28, p. 337, McClel. Dig.) provides that no judge of any court or justice of the peace shall sit or preside in any cause in which he is a party, or in which he is interested, or in which he would be excluded from being a juror by reason of interest, consanguinity, or affinity to either of the parties; nor shall he entertain any motion in the cause other than to have the same tried by a competent tribunal. Section 28, McClel's. Dig. The act 1870 (section 30 of the Digest) declares that no justice, judge, or juror shall be disqualified from sitting in the trial of any suit in which any county or municipal corporation is a party by reason that such justice, judge, or juror is a resident or tax-payer within such county or municipal corporation.

The statute of 1862 is cited by counsel for appellants, and it is argued by them that no signer of the petition would have been a competent juror had an issue of fact in the mandamus been sent to a jury. Issues of fact inmandamuses are tried, in this state, by the judge or court, and not by a jury, ( State v. Commissioners, 21 Fla. 1;) but it is yet true that the same interest that would disqualify persons as jurors, were they triers of facts inmandamus proceedings, will disqualify a judge.

The first section of our statute regulating the change of county-sites is as follows: 'The registered voters of...