State Ex Rel. Pooser v. Wester

• Decision Date: 30 October 1936
• Citation: 126 Fla. 49,170 So. 736
• Parties: STATE ex rel. POOSER et al. v. WESTER et al.
• Court: Florida Supreme Court

170 So. 736

126 Fla. 49

STATE ex rel. POOSER et al. v. WESTER et al.

Florida Supreme Court, Division B.

October 30, 1936

Rehearing Denied Nov. 18, 1936.

Original proceedings in quo warranto by the State on the relation of W. Pooser and C. W. Allen, against W. W. Wester and others. On motion by respondent to discharge the rule nisi commanding respondent to show cause why writ of quo warranto should not issue.

Motion granted.

COUNSEL Wm. W. Flournoy, of De Funiak Springs, for relators.

B. L Solomon and Carter & Pierce, all of Marianna, for respondents.

OPINION

TERRELL Justice.

On October 7, 1936, W. Pooser as a candidate for the office of State Senator from the Fourth Senatorial District (Jackson county) and W. Pooser and C. W. Allen as citizens, residents and taxpayers of Jackson county filed an information in quo warranto in this court in which they allege that the primary elections held in said county June 2d and June 23d were nullities, void, and ineffectual, and that each and all the nominations for the respective county offices made in said primary elections are likewise void and ineffectual. A rule nisi was issued by this court directed to W. W. Wester and other respondents nominated in said primary election commanding them to show cause why writ of quo warranto should not be issued to them pursuant to said information.

Respondents move to discharge the rule nisi on the ground of laches and the further ground that the Attorney General having refused to permit the use of his name, the proceeding cannot be maintained by relators as citizens and taxpayers.

A majority of the court do not think it necessary to answer the latter question in this proceeding. It is not out of place to state, however, that under our practice, quo warranto is a remedial as well as a prerogative writ, and that this court will not refuse to extend its use on proper showing made. In State ex rel. Watkins v. Fernandez, 106 Fla. 779, 143 So. 638, and State ex rel. Bauder v. Markle, 107 Fla. 742, 142 So. 822, we reviewed many instances in which the common-law writ of quo warranto had been extended and employed for purposes other than for which it was originally conceived.

In the latter case, we permitted its use to test the claim of Bauder to a 'liberty' or 'quasi official right,' and in State ex rel. Watkins v. Fernandez, we permitted its use to test the right to nomination for office in a primary election. We permitted its use in both these cases on the theory that the law will not permit a wrong to go without a remedy, which principle was reincorporated in section 4, Declaration of Rights, Constitution of Florida. One of the high prerogatives of a court of justice is to keep this principle of the law dynamic by construing it to provide a remedy for every new wrong that arises. The test of whether or not old remedies will be extended to the wrongs that constantly arise from new conditions is not what the remedy extended to in the time of Edward the First or George the Third, but whether or not the one complaining has suffered an injury in his 'lands, goods, person, or reputation' that should in right and justice be atoned for. If this is not the rule, then the equitable maxim and section 4 of the Declaration of Rights are nothing more than a gesture and had as well be consigned to the pictograph corner in the museum along with the Code of Hammurabi and the tablets that Moses brought down from the mountain.

We have examined Newman v. United States ex rel. Frizzell, 238 U.S. 537, 35 S.Ct. 881, 59 L.Ed. 1446; Toncray v. Budge, 14 Idaho, 621, 95 P. 26; State ex rel. Clawson v. Bell, 169 Ind. 61, 82 N.E. 69, 13 L.R.A. (N.S.) 1013, 124 Am.St.Rep. 203; Hudson v. Conklin, 77 Kan. 764, 93 P. 585; Sevigny v. Russell, 260 Mass. 294, 157 N.E. 601; State v. City of Sarasota, 92 Fla. 563, 109 So. 473; State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929; State ex rel. Landis v. Kress & Co., 115 Fla. 189, 155 So. 823, and State ex rel. City of St. Petersburg v. Noel, 114 Fla. 175, 154 So. 214, relied on by respondents and find nothing in conflict with this rule.

Relators do not rely on the violation of a private or personal right for relief, but they say that a public right has been prostituted. They contend that the illegal elections held in the manner outlined in the information for quo warrano not only affected them unlawfully, but that they vitally affected the welfare, franchises prerogatives, and liberties of all the people of the State. They contend further that their primary object is the enforcement of a public right and being so the public is the real party in interest and that they of any other citizen or taxpayer are proper parties to the proceeding. They rely on Florida C. & P. R. Co. v. State ex rel. Town of Tavares, 31 Fla. 482, 13 So. 103, 20 L.R.A. 419, 34 Am.St.Rep. 30; Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann.Cas. 1914B, 916; Attorney General v. Blossom, 1 Wis. 317; Attorney General v. Railroad Companies, 35 Wis. 425 to support this contention.

The doctrine of these cases is generally approved in this county and it is well settled that when the enforcement of a public right is sought, the people are the real party to the cause. The relator need not show that he has any real or personal interest in it. It is enough that he is a citizen and interested in having the law upheld, but this, like all other rules of law has its limitations.

In the case at bar, relators, as citizens and taxpayers, seek to invalidate the elections held in Jackson county June 2, and June 23 and to oust the nominees for county offices in said county on the ground that in the primary election held June 2, a total of 8,226 persons voted, 3,645 of whom were duly registered and qualified to vote, but that 4,581 of whom were not qualified because they had failed to register and pay their poll taxes as the law requires, and that in the primary election held June 23, a total of 7,503 persons voted, 3,645 of whom were duly registered and qualified to vote, but that 3,858 of whom were not qualified because they had failed to register and pay their poll taxes as the law directs. In other words, more than half the voters who participated in each election were not qualified and therefore voted illegally.

There is no charge that the elections were not legally called, advertised, held, and canvassed. It is merely charged that persons were permitted to vote who were not qualified to vote and notwithstanding thousands voted who were qualified and neither election is charged to be otherwise irregular, it is contended that both should now be adjudged to be void and as if not held.

The law (section 299, Revised General Statutes of 1920, section 355, Compiled General Laws of 1927) requires that nominations for elective state, congressional, and county offices and for United States Senator, congressional, state, and county executive committees be made by primary election. The right to vote is prohibited to those who have not registered and paid their poll taxes unless exempt therefrom by law (section 371, Compiled General Laws of 1927), and no elector is permitted to vote in any precinct other than the one in which he is registered.

Under the law as thus stated, every person who voted without having registered and paid his poll tax was an illegal voter and had no right to present himself at the polls...