State ex rel. Ayres v. Gray

• Decision Date: 11 December 1953
• Parties: STATE ex rel. AYRES v. GRAY et al.
• Court: Florida Supreme Court

Page 187

69 So.2d 187

STATE ex rel. AYRES v. GRAY et al.

Supreme Court of Florida, En Banc.

Dec. 11, 1953.

Willard Ayres, Ocala, for relator.

Richard W. Ervin, Atty. Gen., Howard S. Dailey, Asst. Atty. Gen., and John D. Moriarty, Sp. Asst. Atty. Gen., for R. A. Gray.

J. Lewis Hall, Tallahassee, for Brailey Odham.

Ben C. Willis and Charles S. Ausley, Tallahassee, for LeRoy Collins.

Marion Sibley, Miami Beach, and W. G. Ward, Miami, amici curiae.

THOMAS and MATHEWS, Justices.

Willard Ayres, as a citizen and taxpayer of the State of Florida, presented to this Court, 23 November 1953, a petition for extraordinary relief which had for its eventual purpose the determination of the question whether elections should be held in 1954 for the choice of a nominee and the election of a Governor to serve the remainder of the term of the late Dan McCarty, Governor of Florida, who died 28 September 1953. In the prayer the relator sought 'the advice of this Court in the premises,' the issuance of a writ of quo warranto against both the Secretary of State and Brailey Odham, who had already qualified as a candidate for the office, and the issuance of an alternative writ of mandamus directing the Secretary of State 'to show cause why he should not expunge from the records and files of his office the receipt, oath and election reports' of the candidate.

When this petition was examined by the members of the Court, they were skeptical about the jurisdiction of the Court to entertain the petition and about the right of the relator to maintain the proceedings. Consequently, the six members of the Court participating unanimously ordered, 23 November 1953, that these two questions would first be determined and in the event the Court decided that it should exercise its jurisdiction, and that the relator had the right to maintain the proceedings, the application would be heard on its merits.

The matter was set for argument 30 November 1953 on the first two propositions. After the argument, the Court unanimously decided that the relator could not seek the advice of the Court, that being a prerogative only of the Governor within the narrow channel set out in Section 13 of Article IV of the Constitution, and that no ground appeared in the petition for the issuance of a writ of quo warranto. So consideration was focused on the right of the relator to a writ of mandamus directed to the Secretary of State.

The Court concluded that the relator, as a citizen and taxpayer, could invoke the process of the Court, largely because of the status given a candidate for election under Chapter 99, Florida Statutes 1951, and F.S. A. To qualify under this law as a candidate for Governor, one must take the prescribed oath and an oath of loyalty to the United States and the State of Florida. He must also as a condition precedent to becoming a fully qualified candidate for Governor, appoint a campaign treasurer and designate a campaign depository and file their names and addresses with the Secretary of State. The law carries elaborate provisions regulating the receipt of contributions and the expenditure of funds, and a requirement that detailed reports of these receipts and expenditures be filed weekly with the Secretary of State.

It is inherent in the law that once a person qualifies for the office of Governor, he may go forth, with the apparent sanction of the State through the Secretary of State, to gather funds to further his candidacy, without any restriction whatever as to the total amount, although there are prohibitions against contributions by persons engaged in certain pursuits, and a limitation on the amount that may be donated by any one individual.

After earnest consideration of the status thus attained under the law by a candidate for the office of Governer, the Court came to the conclusion that a citizen and taxpayer could file an action in mandamus which would have the effect of testing the authority of the Secretary of State to qualify and establish a person as a candidate for the office of Governor. This conclusion was reached by each member of the Court, all participating.

Of course, unless there will be need for an election there is no occasion for the State, personified by the Secretary of State, to establish a man as a candidate for an office and thereby give him, subject to the restrictions we have enumerated, the apparent authority to go about the State of Florida and gather funds from all who are disposed to contribute.

To state it otherwise, if such an election is not one properly to be held, the offices of the Secretary of State should not be devoted to qualifying the candidates as well as keeping the complex records that would follow the qualification of the candidates.

Much had been said to us, in opposition to the issuance of a writ, about the right of an individual to make this challenge, but once the conclusion is reached that the proposed candidate had acquired with the sanction of the Secretary of State the preeminent status to which we have referred, we think there is abundant law to support the position that a citizen and taxpayer may seek the remedy and that the door of the Court should not be closed to him simply because he acted alone.

In 1880 this Court recognized the distinction between writs of mandamus to enforce private rights and those to coerce the performance of acts of a general public nature. In the case of State of Florida ex rel. Scott v. Board of County Commissioners of Jefferson County, 17 Fla. 707, the Court quoted with approval from the decision in People v. Halsey, 37 N.Y. 344, as follows:

"The writ of mandamus may, in a proper case, and in the absence of an adequate remedy by action, issue on the relation of a private individual, to redress a wrong personal to himself, or, on the relation of one who, in common with all other citizens, is interested in having some act done, of a general public nature, devolving as a duty upon a public officer or body who refuses to perform it.' * * * 'Inasmuch as the people themselves are the plaintiff in a proceeding by mandamus, it is not of vital importance who the relator should be so long as he does not officiously intermeddle in a matter with which he has no concern."

The same rule is found in High's Extraordinary Legal Remedies (1896), Sec. 431, where it is announced that when relief is sought to protect private rights the relator must show a special interest in the subject matter since his right must clearly appear, but when a public right is involved and the purpose of the action is the enforcement of a public duty the people are the real parties and the relator need not have a personal interest, 'it being sufficient to show that he is a citizen and as such interested in the execution of the laws.'

The matter was considered in 1893 in the case of Florida Cent. & P. R. Co. v. State ex rel. Mayor, etc., of Town of Tavares, 31 Fla. 482, 13 So. 103, 20 L.R.A. 419. There the principle was again recognized on the authority of McConihe v. State of Florida, ex rel. McMurray, 1879, 17 Fla. 238, where Section 431 of High's Extraordinary Legal Remedies was cited as authority.

In 1942 the distinction was reiterated in Board of Public Instruction of Dade County v. State ex rel. Hunter, 150 Fla. 213, 7 So.2d 105, where we quoted with approval the statement already given from High's Extraordinary Legal Remedies. Then, in Florida Industrial Commission v. State ex rel. Orange State Oil Company, 155 Fla. 772, 21 So.2d 599, decided in 1945, the Court repeated the statement relative to the right of a citizen to have the law executed by writ of mandamus even though he had no special interest in the result.

So it is clear that as early as 1879 and as late as 1945 this Court recognized and applied the rule which we now consider governing in the circumstances of this case so far as the aloneness of the petitioner is concerned. Incidentally, the institution of the suit by relator as an individual without expressly stating that he represented all persons in his situation is inconsequential because, as we said in Board of Public Instruction of Dade County v. State ex rel. Hunter, supra, 'This is quite evident' from the allegations of the petition.

This Court is always chary of assuming original jurisdiction in cases of mandamus. By Rule No. 30(d) it is expressly provided that 'Original petitions in mandamus will not be entertained * * * unless a state officer, state board, state functionary, or some other agency authorized to represent the public generally is named as respondent.' Exercise of jurisdiction in the instant case clearly would not violate the rule as the Secretary of State is the principal party.

In the case of Newberry v. Harris, 114 Fla. 379, 153 So. 901, the Court declined original jurisdiction because it was not apparent that 'any new or novel question [was] raised or presented' or any 'grave question of general law * * *.' Here the problem is obviously new and novel and one of immense public interest for the solution of it will eventually determine who will serve as chief executive of the State for a period of two years.

The procedure of accomplishing by mandamus a decision of the prime question has been challenged as a substitution for injunction because commanding a deletion resulting in a discontinuance instead of preventing a continuance of certain actions by the Secretary of State, but we think the decision of this Court in State ex rel. Taylor v. Gray, 157 Fla. 229, 25 So.2d 492, is abundant authority for a determination of this point in relator's favor.

In recapitulation,--the stature of a candidate for the office of Governor created by the present election laws, and the involvement of the office of Secretary of State, coupled with the immense public interest in the basic question of the need, or needlessness, of elections, convinced this Court that jurisdiction should be assumed by mandamus and that the issues implicit in the...