State v. Dillon

• Decision Date: 13 December 1893
• Citation: 14 So. 383,32 Fla. 545
• Parties: STATE ex rel. LAMAR, Attorney General v. DILLON et al.
• Court: Florida Supreme Court

14 So. 383

32 Fla. 545

STATE ex rel. LAMAR, Attorney General v. DILLON et al.

Florida Supreme Court

December 13, 1893

Original information in quo warranto at the relation of William B Lamar, attorney general, against Benjamin F. Dillon and others, to oust defendants from the offices of councilmen of the city of Jacksonville. Heard on demurrer to the information. Demurrer sustained.

Syllabus by the Court

SYLLABUS

1. The right to vote is not an inherent or absolute right generally reserved in bills of rights, but its possession is dependent upon constitutional or statutory grant. Subject to the limitations contained in the federal constitution, such right is under the control of the sovereign power of the state; and where the constitution has conferred the right, and prescribed the qualifications of electors, the legislature cannot change or add to them in any way, but where the constitution does not confer the right to vote, or prescribe the qualifications of voters, it is competent for the legislature, as the representative of the lawmaking power of the state, to do so.

2. Section 1 of article 6 of the constitution of 1885 prescribing the qualifications of electors at all elections under it, does not apply to elections for municipal officers in this state, but such elections are subject to statutory regulation; and it is competent for the legislature to prescribe the qualifications of voters at the same.

3. The provision in the third section of chapter 4301 of the Laws of 1893, (being 'An act to fix the number and provide for the election of the municipal officers of the city of Jacksonville, a municipal corporation existing in Duval county, Florida, and to prescribe their terms of office, and regulate their compensation,') that those persons who, at the time of the holding of any city election, are residents of the city, and who, at the time of the general state election held next preceding, were qualified electors of any of the election districts within said city, shall constitute the qualified electors of said city authorized to vote at such city election, is not in conflict with the general provisions of the criminal law disqualifying persons convicted of certain crimes from voting at any election, and the two can, and must be, construed in harmony with each other.

4. The legislature, having the right to prescribe the qualifications of voters at municipal elections, may provide the means of ascertaining the persons who possess the qualifications prescribed; and although the action of a ministerial board in ascertaining the qualifications of those given the right to vote may not be given a conclusive effect on the voter's right to cast his ballot, yet an election held under a statute with a provision making the action of such a board in this respect, conclusive, will not, on this account alone be set aside, in the absence of any showing that voters were deprived by the action of such board of any rights conferred by the statute.

5. The provision in section 6 of article 6 of the constitution, that in all elections by the people the vote shall be by ballot, applies to municipal elections.

6. It is competent for the legislature to prescribe an official ballot, and prohibit the use of any other, and may also provide for printing the names of candidates regularly nominated by a convention or mass meeting, or who run as independents; but it cannot restrict the elector to voting for some one of the candidates whose names are printed upon the official ballot. The constitution guaranties to him the right to vote for whom he pleases.

7. The provisions in reference to voting, in the municipal act, supra, held to restrict the voter at municipal elections in the city of Jacksonville for municipal officers to vote for some one of the candidates whose names are printed upon the official ballot, and to this extent the act is unconstitutional.

8. Where unconstitutional provisions in a statute can be separated from the valid portions, and the legislative purpose expressed in so much as is good can be accomplished independently of the void part, and, considering the entire act, the good and the bad features are not so essentially and inseparably connected in substance, or so interdependent as that it cannot be said that the legislature would not have passed the one without enacting the other, it is the duty of the court to give effect to so much as is good.

9. In the application of the foregoing rule it was held that the rejection of the feature of the municipal act in question restricting the voter to some one of the candidates whose names were printed on the official ballot did not affect the valid portions of the act, and that an election authorized by it will not be set aside on an attack solely on the ground of the unconstitutionality of the act, and in the absence of affirmative showing that the result would have been different had the illegal portion not existed.

10. The provision in the third section of the act, supra, 'that prior to the holding of the first city election as provided herein, there shall be given to each person who was entitled to qualify himself as an elector at the last state election by registration and the payment of his poll taxes for the years 1890 and 1891, and failed to do so, an opportunity to qualify by registering and himself paying his own poll taxes for such years,' did not deprive the voter of his right to pay his said poll taxes through an authorized agent, and a payment made through such agent would be a valid payment, under the principle, 'qui facit per alium facit per se.'

11. The provisions of the act relating to paying the poll taxes mentioned had reference to the poll taxes due under the general revenue law for the years 1890 and 1891; and if no poll taxes were due for said years, as required by that law, none were required, under the municipal act in question, as a prerequisite to the right to vote in the city election held in July, 1893.

12. The legislature has the power, under the constitution, to make the payment of a capitation tax, not exceeding one dollar a year, a prerequisite for voting; and there is no constitutional limitation against the right to require the payment in any one year of delinquent capitation taxes as a prerequisite to the right to vote, provided such taxes do not amount to more than one dollar for each year.

13. The reasonableness or justice of a deliberate act of the legislature, so long as it does not contravene some portion of the organic law, is a matter for legislative consideration, and not subject to judicial control.

14. The election commissioners named in the fifth section of the act, supra, to prepare for, hold, and declare the result of the municipal election held in July, 1893, are not officers within the meaning of section 27 of article 3 of the constitution of 1885, nor are they officers in any sense, but constitute a temporary board for the performance of certain duties in reference to the holding of an election, and their appointment or designation was not necessarily or essentially executive in its nature.

COUNSEL

W. B. Lamar, Atty. Gen., Bisbee & Rinehart, and F. P. Fleming, for plaintiff.

A. W. Cockrell & Son, W. B. Young, and J. M. Barrs, for defendants.

The other facts fully appear in the following statement by MABRY J.: An information in the nature of a quo warranto was filed by the attorney general, on behalf of the people of the state of Florida, in this court on the 17th day of October, A. D. 1893, against the defendants, Benjamin F. Dillon and 12 others, alleging, in effect, that they, without right or legal warrant, have usurped, and still do usurp, the offices of councilmen of the city of Jacksonville. It is alleged in the information that Thomas W. Roby and 16 others named were duly appointed by the governor of the state of Florida to be councilmen for the various wards of said city, under and by virtue of the act of the legislature approved May 16, 1889, entitled 'An act to amend an act entitled 'An act to establish the municipality of Jacksonville, provide for its government and prescribe its jurisdiction and powers,' approved May 31st, 1887,' and that they qualified by taking the oath of office prescribed by law, were duly commissioned as such councilmen, and thereupon entered upon and performed the duties of said offices, and exercised the rights, benefits, and privileges thereof, until the same were usurped by the defendants.

Thomas W. Roby and the 16 persons named, it is alleged, constitute the city council of said city, and are still entitled to use, exercise, and enjoy the offices of councilmen of said city.

It is further related that the defendants, Dillon and the 12 others mentioned, for the space of 80 days last past and more, without legal warrant, grant, or right whatever, have used and exercised, and still do use and exercise, the offices of councilmen of said city, and that they have claimed, and still do claim, to be councilmen of said city, and to have the right to use and enjoy all the liberties, privileges, and franchises belonging and appertaining to said offices of city councilmen, but that said offices, liberties, and franchises, during the whole of said time, have been, and still are, usurped by them, against the people of the state of Florida.

The information proceeds with the allegations that the claims of the said defendants to the offices in question are based upon the pretense that they were elected to the same at an election for municipal officers pretended to be held in and for the said city of Jacksonville on the 18th day of July 1893, by virtue of an act of the legislature of Florida approved May 16, 1893, being chapter 4301, Laws Fla. This election, and the...