State v. Dade County
| Decision Date | 15 October 1940 |
| Citation | 198 So. 102,144 Fla. 448 |
| Parties | STATE v. DADE COUNTY. |
| Court | Florida Supreme Court |
En Banc.
Proceeding by Dade County, Florida, against the State of Florida, for the validation of bonds proposed to be issued by Dade County for the purchase and improvement of public parks. From a decree validating the bonds, the State of Florida appeals.
Reversed. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.
George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood, Asst. Atty Gen., for appellant.
Hudson & Cason, of Miami, for appellee.
Richard H. Hunt and George H. Salley, both of Miami, amici curiae.
This appeal was entered by the State of Florida from a decree of the circuit court validating bonds in the amount of $2,000,000, proposed to be issued by Dade County, for the purchase and improvement of public parks.
We are convinced from our study of the record and briefs that but two questions need an answer by this Court in order to determine the litigation, namely: (1) Whether the election was valid; and (2) whether the ballot was in proper form.
After preliminary resolutions had been adopted by the board of county commissioners, as was therein provided, the matter of incurring the indebtedness was submitted to the electors at the same time and place as the primary election held on May 28, 1940, for their approval or rejection.
Under Section 9, of Chapter 14715, Laws of Florida, Acts of 1931 it was proper that the bond election be held simultaneously with the primary election, provided 'separate ballot boxes and separate ballots' were used and 'separate returns [were] made and canvassed.'
In accordance with the requirements of Chapter 18405, Laws of Florida, Acts of 1937, voting machines were used in the election, and because of the reference to 'ballots' in the law first cited, we refer to the latter act for a description of the 'ballot' in elections where the machines are employed. There it is defined as 'that portion of the cardboard or paper or other material within the ballot frames containing * * * a statement of a * * * question or proposition with the word 'yes' for voting for any question or proposition, and the word 'no' for voting against any question.'
At the election under question the voting machines were so arranged that the ticket containing the names of the candidates and the 'ballot' stating the proposition relative to the bonds could be locked and unlocked separately, so that each was available to the elector qualified to vote in the primary or upon the bonds, respectively; that is to say, if an elector appeared who was not a freeholder, that part of the device on which he could select the candidate of his choice was available to him, but the part recording the votes on the bonds was locked. By the same arrangement if one entered the booth who was qualified to vote both for candidates and for or against the bonds, he could register his choice with the levers opposite the names on the ticket and those opposite the proposition relative to the bonds.
The record shows that 21,346 voters favored the issuance of the bonds and 2,729 voted in the negative, or that a total of 24,075 who entered the booth indicated their preference about the issuance of the bonds. More than nine thousand electors qualified to participate in the primary and the bond elections voted in the former but not in the latter. There were on that day 50,725 qualified electors in the county who were freeholders and therefore eligible to vote in the bond election.
This brings us to the first point we must determine and the decision of which involves a construction of the constitutional provision containing prohibitions against the issuance of bonds, unless the same bear the stamp of approval of those who will apparently, because taxpayers, bear the tax burden to discharge the debt. So much of it as is pertinent to the case under consideration, follows:
'* * * counties * * * shall have power to issue bonds only after the same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in such counties * * * shall participate * * *.' Const. art. 9, § 6.
Thus we state the question more simply: Did a majority of the electors who were freeholders 'participate' when they went into the polling booth where there was available to them a machine on which they could show a choice in the selection of candidates, and on the issuance of the bonds, although fewer than a majority voted for or against the latter? In other words, to make the election effective it was necessary that 25,363 electors participate, and that more than half of this number approve the issuance of the bonds. 24,075 voted either for or against the proposition, and 9,403 electors qualified to vote in the primary as well as the bond election, indicated a choice in the former and ignored the latter.
It is urged by the appellee that the more than nine thousand electors can be said to have participated in the bond election despite the fact that when they entered the election booth they cast their ballots for candidates for public office, but refrained from voting on the issuance of the bonds.
Of course, the determination of their status, so far as the latter election was concerned, must depend on the construction of the verb 'participate'. It does not seem necessary for us to enter into an analysis of that word, the meaning of which is ordinarily accepted, and the nearest perfect synonym of which is 'take part'.
We do not find in the decisions of this Court any case precisely in point. Perhaps the one which dealt with facts more nearly approaching those outlined above was State et al. v. City of Tampa, 137 Fla. 29, 187 So. 604, where by divided opinion the decree of validation was affirmed. Even had the case been decided by a clear majority, it would have been of little value to us in the solution of the present controversy because of an essential difference in the factual situation. In that case certain voters had appeared at the polls, were admitted to the voting machine and failed to use them so that their intentions with reference to the proposition of the issuance of bonds could be ascertained. The main difference between the two controversies is that in the cited case an attempt to vote was made by the electors at an election where only the proposition was presented and no other ticket was involved. In State ex rel. Thomas et al. v. Williams et al., 100 Fla. 996, 130 So. 428, this...
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...State v. Dade County, 39 So.2d 807 (Fla.1949); State v. City of Daytona Beach, 160 Fla. 13, 33 So.2d 218 (1948); State v. Dade County, 144 Fla. 448, 198 So. 102 (1940); Lewis v. Leon County, 91 Fla. 118, 107 So. 146 (1926); and Merrell v. City of St. Petersburg, 74 Fla. 194, 76 So. 699 (191......
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...is that there only bond proposals were involved, while here there were submitted two unassociated propositions. The decision in State v. Dade County, supra, seems more in point because record reviewed showed a combined or simultaneous bond and primary election. This was authorized by law, p......
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