State Ex Rel. Clark v. Klingensmith

• Decision Date: 09 November 1936
• Citation: 170 So. 616,126 Fla. 124
• Parties: STATE ex rel. CLARK v. KLINGENSMITH.
• Court: Florida Supreme Court

170 So. 616

126 Fla. 124

STATE ex rel. CLARK v. KLINGENSMITH.

Florida Supreme Court

November 9, 1936

Original quo warranto proceedings by the State, on the relation of Frank G. Clark, against Ward C. Klingensmith.

Proceedings dismissed without prejudice.

COUNSEL Russell Snow, of Cocoa, for relator.

Crofton & Wilson, of Titusville, and Waller &amp Pepper, of Tallahassee, for respondent.

OPINION

PER CURIAM.

This is original quo warranto instituted by Frank G. Clark in the name of the State of Florida, under section 5447, C.G.L section 3582, R.G.S., upon the Attorney General's refusal to bring proceedings against Ward C. Klingensmith.

Relator in this proceeding, is questioning by what authority respondent is using, enjoying, exercising, and performing the franchise functions and powers of the office of county commissioner of the first commissioner's district of Brevard County, Fla. Relator claims that he was the duly elected county commissioner in this district at the general election held November 6, 1934. The final canvass and return of the county canvassing board on this office was Clark, the relator, 1204, and Klingensmith, the respondent, 1209.

The information challenges 22 ballots, which it divides into four groups. It is alleged that 8 absentee ballots were improperly counted for respondent when they should not have been counted at all. It was also stated that the ballots of four persons who had not resided in the county for six months preceding the election were counted for respondent. It was alleged that seven persons voted in an election district in the county in which they did not reside, and that all seven votes were for respondent and were counted. It was also alleged that two absentee votes regular in every respect and a ballot with the 'X' mark on the right side of candidate's name all cast for relator, were not counted.

Rule nisi issued to respondent to show by what authority he held the office of county commissioner of Brevard county in the first commissioner's district.

After respondent's motion to strike and motion to quash were denied, State ex rel. Clark v Klingensmith, 121 Fla. 297, 163 So. 704, respondent was allowed 20 days in which to answer the information.

The answer denies the material parts of each paragraph of the information; denies that 19 illegal ballots were counted for respondent; and that 3 ballots legally cast were not counted for relator. The answer set up affirmative matter of defense by challenging 6 votes, alleging that two absentee ballots lawfully cast for respondent were not counted; that two unlawful absentee ballots cast for relator were counted; and that two persons who voted for relator voted in a precinct in which they did not reside. In addition, the answer alleges irregularities in the manner of conducting the election in eight precincts in Brevard county.

Motion to strike parts of the answer has been denied. Since that time no further action has been taken by either party. The several issues of fact already having been reached by the pleadings, there remains nothing to be done except to have the issues of fact settled by a competent and appropriate body.

The right to trial by jury on issues purely of fact, arising in proceedings by quo warranto, is guaranteed by the third section of the Declaration of Rights of the Constitution. Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697, 24 L.R.A. 806; Van Dorn v. State ex rel. Clarke, 34 Fla. 62, 15 So. 701; State ex rel. Attorney General v. City of Avon Park, 108 Fla. 641, 149 So. 409; State ex rel. Landis v. S. H. Kress & Co., 115 Fla. 189, 155 So. 823.

As to the right of trial by jury in such cases, when issues of fact are to be determined, we said in Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697, 699, 701, 24 L.R.A. 806:

'When the right of trial by jury is secured by constitutional provision in general terms like ours, and without any qualification or restriction, it must be understood as retained in all those cases that were triable by jury according to the course of the common law. The provision in the first constitution, framed in 1838, 'that the right of trial by jury shall forever remain inviolate,' contemplated, without doubt, a continuation of jury trials in all cases where such was the practice at the common law, and there is nothing in the subsequent constitutions to indicate a change of meaning in this respect. It will be remembered that in 1829, prior to the formation of the constitution, in 1838, the legislature had expressly adopted the common law of England as in force in the territory of Florida. But it was never understood that the right of trial by jury, secured by such a constitutional provision, extended to all cases, as there were many trials and proceedings according to the course of the common law in which juries did not participate.'

Further on in the case of Buckman v. State ex rel. Spencer, supra, 34 Fla. 48, text page 57 et seq., 15 So. 697, 699, 24 L.R.A. 806, we decided as follows regarding the right to jury trials at common law in quo warranto proceedings:

'The question whether or not the issues purely of fact made upon the pleadings and informations in the nature of quo warranto were triable by jury at the common law has given rise to some diversity of opinion in some of the American courts. In the present investigation, we are confined to the proceedings by information in the nature of quo warranto, which, in its origin, was undoubtedly criminal in nature, as well as purpose, in part. Our examination into the matter has conducted us to the conclusion that at the time of the Revolution the trial of pure questions of fact in such proceedings was by jury. It is stated in 5 Bac.Abr. p. 188, under the head of 'Informations,' that, 'as an information of this kind (quo warranto) is now considered rather as a civil proceeding, a new trial may be granted as well where there has been a verdict in favor of the defendant as where it has been given in favor of the crown.' Again, on page 187: 'Where the defendant sets forth a bad title to the office, and confesses the user, that amounts to a confession of the usurpation; and if an immaterial issue is joined, and a verdict found on which the court cannot give judgment, yet they will not grant a repleader, but will give judgment on the plea.' In the following English decisions, in such cases, trials by jury on the issues of fact were had, viz.: Rex v. Bennett, 1 Strange, 101; Rex v. Bell, 2 Strange, 995; Nevill v. Payne, 1 Croke, 304; Rex v. Francis, 2 Term.Rep. 484; Rex v. Philips, 1 Burrow, 293; Rex v. Carpenter, 2 Shower, 47; Rex v. Malden, 4 Burrow, 2135, Rex v. Bridge, 1 Wm.Blackstone, 46. In Rex v. Bennett, all the judges of England were equally divided--the division being equal in each court over the question whether a new trial could be granted after a verdict in favor of the defendant in such proceeding. The view that the suit was criminal then widely prevailed, but this point was finally settled in favor of the view above announced--that the action, though criminal in form, was regarded as a civil suit for the purpose of trying the right to the franchise. It seems, also, that a bill of exceptions was allowed in such proceedings. Bacon's Abr., supra. And in People v. Sackett, 14 Mich. 243, it was held that the appellate court would not review the proceedings on the trial of issues of fact in such cases by a jury in the circuit court, without the judge's report of the proceedings, rulings, and evidence before him.

'Angell & Ames on Corporations state (section 741) 'that if a prima facie case of usurpation is made out, and there appears a fair doubt on the title of the defendant, the court will not discuss the question in the summary way of motion, but send the facts to a jury.' Several English cases are referred to, in which the court thought proper to send the question to a jury, or leave the parties to bring the matter more...