State v. Anderson

• Decision Date: 06 June 1890
• Citation: 8 So. 1,26 Fla. 240
• Court: Florida Supreme Court
• Parties: STATE ex rel. SMITH v. ANDERSON.

8 So. 1

26 Fla. 240

STATE ex rel. SMITH v. ANDERSON.

Florida Supreme Court

June 6, 1890

Quo warranto.

The following parts of the information, with the statements in the opinion, are sufficient for a full understanding of the decision.

That at the election 165 votes were cast for the office of alderman and three aldermen were to be elected, and the relator George H. Court, James H. L. Slayton, James E. Anderson William E. Ballough, and Robert Anderson were candidates for the offices of aldermen, and Smith, Slayton, and Count each received a majority of the votes for the same, the number of votes cast for aldermen being as follows: For Marcus L. Smith and J. H. L. Slayton, each 103, or more; George H. Count 109, or more; while James E. Anderson and Robert Anderson each received only 67 votes, or less, and William E. Ballough only 60 votes, or less.

That there were put into the said box for the offices of aldermen 103 or more ballots of plain white paper, not more than 2 1/2 inches wide, and not exceeding 6 inches in length, and not containing anything upon them but the names of Marcus L. Smith, George H. Count, and J. H. L. Slayton, and the chairman of the board of inspectors was then and there carrying out the provisions of the ordinance of July 22, 1889, and the majority of the voters then and there voting did vote for and elect the relator to the office of alderman of the town of Daytona.

That the majority of voters then and there voting had two sets of ballots, one of plain white paper, clear and even cut, without ornament, designation, mutilation, symbol, or mark of any kind whatever, except the names of the persons voted for, and the offices of which they were intended to be chosen, which names of persons and offices were printed in black ink; but this ballot could not, on account of the regulations of the board of inspectors, be cast, there being no single ballot-box be cast, there being no single ballotbox of ballots, but the seven ballot-box plan was enforced, and the electors accepted the same, and voted accordingly.

That at the above election no other persons than the six above named 'ran for alderman,' and that neither the relator nor other person of his name ran for any other office than that of alderman, and it was understood and acted on by the electors then and there voting, and all the votes cast for Marcus L. Smith should have been counted for him for alderman.

That the inspectors and clerk, naming them, proceeded to count the ballots and announce the result of the election, but wrongfully rejected and refused to count 103 votes, or more, cast for relator for the office of alderman in accordance with the above ordinance, and containing nothing but the names of Marcus L. Smith, George H. Count, and James H. L. Slayton, the board rejecting and refusing to count these ballots, because they did not have printed on them the name of the office voted for. That, had these ballots been duly canvassed, the returns of the board would have shown that relator was duly elected to the office of alderman of the town.

That W. J. Berne and James M. Osborne, two of the inspectors, and C. M. Biggham, Jr., the clerk, declared and certified to the town council of Daytona that for councilmen Robert Anderson received 67 votes, William E. Ballough 60 votes, James E. Anderson 67 votes, and George H. Count received 6 votes, and the relator 1 vote, which certificate is alleged to be false and fraudulent. That the other inspector, George F. Smith, refused to join in this certificate, on account of its falsity and the fraud, and attempted to count and preserve the ballots cast for the office of alderman, but the ballots were taken from him by Berne, who was also a candidate for the office of assessor, and Berne and Osborne fraudulently refused to count or make a record of the ballots cast for relator, and prevented Smith from preserving the ballots for future investigation, inspection, and review.

That the report of the board of inspectors of the election was received by the town council of Daytona, and accepted by them, and defendant, James E. Anderson, appeared at the time the report was made, and entered upon the duties of the office of alderman, and has since acted as, and now pretends to be such, alderman, and usurps the office, but Ballough and Robert Anderson refused, on account of the false and fraudulent character of the certificate, to exercise any of the functions of the office, and still refuse to do so, and relator claims title to the office of alderman by virtue of having received a majority of the votes cast, and of his eligibility to the office.

That the attorney general of the state, William B. Lamar, has refused to institute proceedings in the name of the state upon the relation of the claimant, or to file a complaint setting forth his name as the person rightfully entitled to the office, as will further appear by an attached exhibit.

Syllabus by the Court

SYLLABUS

1. The power to issue writs of quo warranto, given to the supreme court by the fifth section of the judiciary article of the constitution of 1885, embraces informations in the nature of quo warranto.

2. The provision of the statute of February 2, 1872, (McClel. Dig 846,) which authorizes any person claiming title to any office exercised by another to file an information in the name of the state against the person exercising the same, and to set up therein his own claim, upon the refusal of the attorney general to do so, is constitutional.

3. An allegation in an information that a specified town 'is a municipal corporation, duly incorporated under the laws of the state of Florida, and pursuant to the statutes of the state of Florida in that behalf, and was such municipal corporation' on a particular day designated, is a sufficient allegation of the incorporation of the town under the general law for the incorporation of cities and towns there being no special statute incorporating the town referred to.

4. The provision of the general municipal corporation law, (section 15, p. 248, McClel. Dig.,) that the 'city or town council shall have the power and authority to judge of the election returns and qualifications of its own members,' does not of itself vest the council with exclusive jurisdiction to try the right of a person to the office of councilman or alderman, and thereby deprive the courts of power to try the same in a proceeding by information in the nature of a quo warranto.

5. A municipal ordinance enacted under the general municipal corporation statute becomes 'a law' under section 11, p. 247, McClel. Dig., on receiving the approval of the mayor. The requirement that all municipal 'laws and ordinances' shall be promulgated without unnecessary delay, by posting or publishing for a period of not less than four weeks, does not postpone their operation till after such promulgation.

6. Where a statute authorizes the election of a stated number of 'aldermen, who shall be known as the 'City Council," and that 'two-thirds of the council may expel a member of the same,' and an ordinance regulating municipal elections uses the word 'councilmen,' instead of 'aldermen,' the meaning of the ordinance is the same as if the latter word had been used.

7. The lawful intention of voters, as shown by their ballots, should be given effect by the courts; and where a statute authorizes the election of a stated number of 'aldermen, who shall be known as the 'City Council," and that 'two-thirds of the council may expel a member of the same,' and an ordinance regulating municipal elections uses the word 'councilmen' instead of 'aldermen,' and there were votes for 'councilmen,' such votes were not on this account illegal, but should be counted.

8. The twenty-fifth and twenty-sixth sections of the election law, approved June 4, 1889, (chapter 3879 of the Statutes, pp. 101, 102,) do not prescribe the form and contents of ballots in the elections for officers of cities and towns.

9. The material guaranty of the provision of the constitution, (section 6, art. 6,) that 'all elections by the people shall be by ballot,' is inviolable secrecy as to the person for whom an elector shall vote, and this guaranty is binding upon municipal governments in the regulation of elections.

10. A municipal ordinance provided that there should be distinct and separate ballot-boxes the receive the ballots for the several officers to be voted for, and that boxes should be marked in plain Roman type, or in plain handwriting, designating the office for which the ballot is intended, and that the ballot should be of plain white paper, and not more than a specified length and width, and contain nothing but the name of the officer or officers to be voted for, and ballots were cast pursuant to such ordinance, they containing only the name of the person intended to be voted for, and being placed in the box bearing the name of the office for which the electors intended to vote for such person; and the information alleged that the ordinance was enforced up to the closing of the polls, and that there was a box plainly marked to receive the ballots for the office in question, and that this was understood on the day of election by the inspectors, and by all persons then and there legally qualified to participate in the election; that the inspectors refused to count the ballots cast, pursuant to such ordinance, for the reason that they did not have on them the name of the office voted for, and that, counting them as they should be, the relator was elected. Held, upon demurrer to the information, that the ballots cast in accordance with such ordinance, and under the circumstances detailed in the information, should have been counted.

11. An affidavit by a relator stating...