State ex rel. Clendinen v. Dekle, 33990
| Decision Date | 31 March 1965 |
| Docket Number | No. 33990,33990 |
| Parties | The STATE of Florida on the relation of James A. CLENDINEN, Relator, v. John C. DEKLE, Supervisor of Registration, Hillsborough County, et al., Respondents. |
| Court | Florida Supreme Court |
Hugh C. Macfarlane and Wm. Terrell Hodges, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for relator.
W. Crosby Few, Sarasota, for John C. Dekle, Supervisor of Registration, Hillsborough County, and others.
Earl Faircloth, Atty. Gen., Fred M. Burns and Wilson Wright, Asst. Attys, Gen., Hal S. McClamma, Bartow, for Secretary of State.
Charles D. McClure, Gen. Counsel for Comptroller, for State Canvassing Board.
Joseph C. Jacobs, Tallahassee, for The Florida Bar, amicus curiae.
This is an original proceeding in mandamus 1 instituted by James A. Clendinen, a citizen, taxpayer and qualified elector of Hillsborough County, Florida, against John C. Dekle, as Supervisor of Registration of Hillsborough County, Florida; Harry McDonald, John C. Dekle, John A. Livingston, Joe Nyberg, Henry J. DiStefano, Glenn H. Barrington and Robert W. Davis, as members of the Hillsborough County Canvassing Board of Elections; Tom Adams, Secretary of State, Ray E. Green, Comptroller, and Earl Faircloth, Attorney General, as members of the State Canvassing Board. It is alleged that in the 1963 session of the Florida Legislature there was introduced and duly adopted a House Joint Resolution proposing an amendment to Article XVII of the Florida Constitution. Said Resolution, among other things, required that it be submitted to the electors of Florida at the general election in November, 1964 for ratification or rejection and that said amendment was so submitted and was set forth on the ballot of said general election as proposed constitution amendment no. 11. It is further alleged that immediately following the said general election and in accordance with the requirement of the laws of this State, the Hillsborough County Canvassing Board of Elections canvassed the votes cast in Hillsborough County for the several offices and proposals as shown by the returns on file in the office of the Suprevisor of Registration for Hillsborough 11,423 votes in favor of the amendment
County and duly certified that the following was the result of the vote on said constitutional amendment no. 11, viz.:
51,584 votes against the amendment.
Attached to the petition is a photostatic copy of the original of said returns verifying said results.
It is further alleged that on or about November 17, 1964 the State Canvassing Board canvassed the votes given throughout the State for the several offices and proposals and duly certified the following as the result of the statewide vote on constitutional amendment no. 11 aforesaid, viz.:
thus resulting, according to the return of the State Canvassing Board, in its failure of adoption. Attached to the petition is a certified copy of said return which vertifies the above result.
The petition further alleged that, notwithstanding the certificate of the Hillsborough County Board of Elections, the true vote on said amendment as shown by the tabulation of the vote or tally sheet prepared by the Supervisor of Registration was as follows:
30,361 votes in favor of said amendment
22,336 votes against said amendment.
A photostatic copy of the original tally sheet verifying the above result is attached to and made a part of the petition. It is then alleged in the petition:
'11. Relator does not allege fraud, misconduct or error in the results as taken from the ballots or voting machines and certified from the various precincts in Hillsborough County, Florida, at the November 3, 1964, general election, nor in the vote totals for proposed Constitutional Amendment Number 11 as found on the tabulation or 'tally sheet' (Exhibit C), but alleges only that a simple clerical error occurred in transferring the County-wide totals for and against proposed Amendments 9 through 13 from the 'tally sheet' to the document to be certified by the Hillsborough County Canvassing Board of Elections, which error resulted in the true and correct vote for proposed Constitutional Amendment Number 12 being certified incorrectly as the vote for proposed Constitutional Amendment Number 11, which error in turn resulted in an incorrect certification by the State Canvassing Board of the state-wide result.
'12. If the vote totals herein shown to be the true result of the vote in Hillsborough County, Florida, on proposed Constitutional Amendment Number 11 in the November 3, 1964, general election were correctly certified and forwarded to the State Canvassing Board for inclusion in the state-wide result on said Amendment, and if there was a recertification of the state-wide vote by the State Canvassing Board, the result would be changed and proposed Constitutional Amendment Number 11 would stand adopted by the electorate of the State of Florida voting in the November 3, 1964, general election, the true state-wide vote being 420,006 in favor of said Amendment and 403,565 against the said Amendment.
'13. The Respondent, as members of the Hillsborough County Canvassing Board of Elections and the State Canvassing Board, respectively, have a clear, complete, unequivocal and continuing legal duty, non-discretionary in nature, to correctly certify the results of the voting on proposed Constitutional Amendment Number 11 in the November 3, 1964, general election, but said Boards and the respective members thereof, or their predecessors in office, have refused to take action to recertify the results of said election as set forth above, and have made it clear The Supervisor of Registration of Hillsborough County and the Hillsborough County Canvassing Board of Elections in their return to the alternative writ admit each of the allegations of the petition and in addition thereto aver that on February 11, 1965 the Supervisor of Registration furnished the members of the Hillsborough County Canvassing Board the correct vote totals for votes cast in the general election held in November of 1964 and on February 11th the Canvassing Board of Elections, met at the office of the Supervisor of Registration and did then and there proceed publicly ro recanvass the votes for constitutional amendments 9 through 13 and recertified the correct totals of said amendments to the Secretary of State pursuant to law. A copy of such recertification is attached to said return and made a part thereof. This certification shows that the correct result on the amendment to Article XVII of the Constitution () was that averred in the relator's petition above referred to, viz.:
that no such action will be taken until ordered by this Honorable Court.'
30,361 votes for the amendment
22,336 votes against the...
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General Capital Corp. v. Tel Service Co.
...it has also operated to the disadvantage or prejudice of the other party. Reed v. Fain, Fla.1961, 145 So.2d 858; State ex rel. Clendinen v. Dekle, Fla.1965, 173 So.2d 452; Wagner v. Moseley, Fla.App.1958, 104 So.2d 86. Neither factor is shown to exist Statutes of limitations apply to law ac......
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Wright v. Frankel, 4D06-3386.
...charter provision or the passage of a constitutional amendment, the courts did not apply the doctrine of laches. In State ex rel. Clendinen v. Dekle, 173 So.2d 452 (Fla.1965), the supreme court determined that the defense of laches did not apply in a mandamus action to compel the state canv......
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Niagara Fire Ins. Co. v. Allied Elec. Co., 75--343
...to the plaintiff, or in the event the suit is not held to be barred. As to this fourth element, also see State ex rel. Clendinen v. Dekle, Fla.1965, 173 So.2d 452 at 456, and Brown v. Semple, Fla.App.1967, 204 So.2d 229, at 233. Since laches is an affirmative defense, the burden of proving ......
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Wright v. Frankel, No. 4D06-3386 (Fla. App. 12/27/2006)
...performance of a ministerial duty imposed by law where such duty has not been performed as the law requires." State ex rel. Clendinen v. Dekle, 173 So. 2d 452, 456 (Fla. 1965) (emphasis omitted) (citations omitted). It is a discretionary writ, "awarded, not as a matter of right, but in the ......