Smith v. Ervin

• Decision Date: 17 March 1953
• Citation: 64 So.2d 166
• Parties: SMITH v. ERVIN, Atty. Gen. et al.
• Court: Florida Supreme Court

Page 166

64 So.2d 166

SMITH v. ERVIN, Atty. Gen. et al.

Supreme Court of Florida, en Banc.

March 17, 1953.

J. Kenneth Ballinger, Tallahassee, for appellant.

Richard W. Ervin, Atty. Gen., John A. Madigan, Jr., and Howard S. Bailey, Asst. Attys. Gen., for appellees.

Charles O. Andrews, Jr., Orlando, amicus curiae.

HOBSON, Justice.

Honorable Henry C. Tillman, who heard and determined this case below, entered the following declaratory decree:

'Ordered, Adjudged And Decreed That:

'A. This Court has jurisdiction by declaratory decree to settle the questions of law raised by the bill of complaint, and to declare Plaintiff's rights thereunder, and, accordingly, the Defendants' motion to dismiss contained in their answer is hereby denied.

'B. The joint motion for judgment on the pleadings is granted.

'C. Subsections (4)(a) and (7) of Section 99.161, Florida Statutes [F.S.A.], are valid exercises of the police power of the State and do not contravene Section 13 of the Declaration of Rights in the Florida Constitution [F.S.A.].

'D. The specific questions on which plaintiff, by his bill of complaint, seeks adjudication are answered as follows:

'1. Plaintiff, as owner of a duly licensed and operating radio station in the State of Florida may not accept money or checks (as those words are commonly intended and understood) in payment of political advertising in furtherance of the candidacy of a candidate for political office in the State of Florida unless authorized by the campaign treasurer of such candidate as prescribed in subsection (7) of Section 99.161 Florida Statutes [F.S.A.]. However, this authorization need only be in the form of a letter or memorandum, signed by said treasurer, authorizing the contributor to make such expenditure, and accepting the advertisement as a contribution of a thing of value, to be recorded and reported as such.

'2. An individual citizen of the State of Florida may purchase time on a radio station in which to voice his views in furtherance of the candidacy of an individual, if he has first obtained authorization from the campaign treasurer of the candidate in the manner discussed under question 1 above.

'3. The owner or operator of a radio station if not otherwise prohibited may give time on the air to a candidate for public office or other citizen to express his views in the furtherance of a candidacy, provided such advertising time is given as a contribution of a thing of value to the candidate, and recorded and reported as such. In any such case in which a gift of time on a radio is made, in order to comply with the intent of Section 99.161(4)(a), the owner of the radio station must make the gift through the treasurer of the candidate who is to be benefitted by the use of the time and be listed as a contributor of radio time in the amount of the value of such time.

'4. Plaintiff, as a citizen, may freely voice his views advocating the candidacy of a candidate for public office on a radio station other than his own, provided that he has first obtained authorization from the campaign treasurer to make such a contribution and that the value of the time is reported and recorded as a contribution to such campaign.

'5. Plaintiff, as owner and operator of a radio station may produce on such radio station the opinions and views of nonresidents of the State of Florida as they apply to nominees of majoy national political parties who have not appointed a campaign treasurer in the State of Florida, since Section 99.161 is concerned only with those contributions and expenditures which further the candidacy of a candidate for nomination or election to political office in the State of Florida. Nominees of major national political parties are not candidates for political office in the State of Florida within the purview of this law.'

The learned Chancellor who heard and decided this case wrote an able opinion. Pertinent portions of the opinion are:

'This case involves the constitutionality of a part of what has come to be known as The Election Code, which was enacted as Chapter 26870, the laws of Florida 1951, the codification of which is Section 99.161, which is a section dealing with contributions to candidates, expenditure of campaign funds, and the filing of reports in relation thereto. Subsections (4)(a) and (7) of Section 99.161 are as follows:

"(4) Campaign Treasurer in Charge of Funds: Time Limit.----

"(a) No contribution or expenditure of money or other thing of value, nor obligation therefor, shall be made, received, or incurred, directly or indirectly, in furtherance of the candidacy of any candidate for political office in the State of Florida except through the duly appointed campaign treasurer or deputy campaign treasurers of the candidate.

* * *

* * *

"(7) Written Authorization of Expenditure Required.----

"No expenses shall be incurred by any candidate for election or nomination to political office, or by any person, corporation, or association in his behalf, or in furtherance or aid of his candidacy, unless prior to the incurring of the expense a written order shall be made in and upon the form prescribed, and signed by the campaign treasurer of the candidate authorizing the expenditure, and no money shall be withdrawn or paid by any campaign depository from any campaign fund account except upon the presentation of the written order, so signed, accompanied by the certificate of the person claiming the payment, which certificate shall state that the amount named in the order, or such part thereof as may be claimed, naming the amount claimed, is justly due and owing to the claimant, that the order truly states all of the purposes for which the indebtedness was incurred, and that no person other than the claimant is interested, directly or indirectly, in the payment of the claim, and unless an order for payment in and upon the form prescribed, and signed by the campaign treasurer or deputy treasurer, is presented to the campaign depository; provided that and such authorization may be issued by the campaign treasurer to the candidate for traveling expenses still to be incurred. The order authorizing such expenditure, the certificate, and the order for payment shall be on the same piece of paper.'

'This statute provides a penalty amounting to a misdemeanor for violation of Section 99.161 by an individual, and which reads as follows, in Section 104.27:

"104.27 Penalties for violation of § 99.161.----

"(1) Any person who knowingly violates the provisions of § 99.161 shall be deemed guilty of a misdemeanor and subject to a fine of not more than one thousand dollars or to imprisonment for not more than six months.'

'This case deals with the effect of this Statute upon a radio station and the rights of one who runs a radio station. It should be noted at the outset that the rights of freedom of speech and the press, as applied to radio, are necessarily, and from the beginning, more restricted than they are in relation to newspapers.

'In the case of National Broadcasting Co. v. U. S., 319, U.S. 190, 63 S.Ct. 997, 1014, 87 L.Ed. 1344, the Supreme Court held "Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. Because it cannot be used by all, some who wish to use it must be denied. * * * The right of free speech does not include, however, the right to use the facilities of radio without a license.'

'While there is this distinction between the effect of this Statute as applied to a radio station and the Statute as applied to newspaper advertising, it seems to me that the principle involving the constitutionality of the Statute as to radio and newspaper advertising is the same, and I have so treated them.

'It is a serious thing to declare the Statute of the legislature unconstitutional, and this has been thoroughly recognized in the decisions of our Court. The Supreme Court of Florida has held in the case of City of Jacksonville v. Bowden, 67 Fla., 181, 64 So. 769, 771, L.R.A.1916D, 913, and in numerous other cases unnecessary to cite at this point, as follows:

"The lawmaking power of the Legislature of a state is subject only to the limitations provided in the state and federal Constitutions; and no duly enacted statute should be judicially declared to be inoperative on the ground that it violates organic law, unless it clearly appears beyond all reasonable doubt that, under any rational view that may be taken of the statute, it is in positive conflict with some identified or designated provision of constitutional law.'

'And again in the case of State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929, and Stewart v. DeLand-Lake Helen Special Road, etc., 71 Fla. 158, 71 So. 42, our court held that [50 Fla. 293, 39 So. 931]:

"The reasonableness or justice of a deliberate act of the Legislature, the wisdom or folly thereof, the policy or motives prompting it, so long as the act does not contravene some portion of the organic law, are all matters for legislative consideration, and are not subject to judicial control. The courts are bound to uphold a statute, unless it is clearly made to appear beyond a reasonable doubt that it is unconstitutional.'

'And in the case of Hunter v. Owens, 80 Fla. 812, 86 So. 839, our Supreme Court used this language:

"The wisdom, necessity, expediency, feasibility, and probable success of a governmental statutory project are not subject to judicial review, where the statute is not clearly a violation or evasion of organic law and has substantial basis in a lawful public purpose within the scope of the police power.'

'In the Maxcy, Inc., v. Mayo case, 103 Fla. 552, 139 So. 121, 123, the Supreme Court announced this doctrine:

"When put to the choice by the practical necessities of the case, ...