State v. Fernandez

• Decision Date: 27 September 1932
• Citation: 106 Fla. 779,143 So. 638
• Parties: STATE ex rel. WATKINS v. FERNANDEZ.
• Court: Florida Supreme Court

143 So. 638

106 Fla. 779

STATE ex rel. WATKINS v. FERNANDEZ.

Florida Supreme Court

September 27, 1932

En Banc.

Original proceedings in quo warranto by the State, on the relation of Ben Watkins, against J. M. Fernandez. On motion to quash the information.

Motion to quash denied, and cause dismissed, with leave to relator to pursue his remedy in circuit court.

ELLIS J., dissenting.

COUNSEL Zewadski & Pierce and J. Tom Watson, all of Tampa, for relator.

Henry E. Williams, of Tampa, for respondent.

OPINION

TERRELL J.

This is an original proceeding in quo warranto to test the right of the respondent, J. M. Fernandez, to exercise the functions privileges, and title vested in him as nominee of the Democratic Party to the office of constable for the third justice of the peace district of Hillsborough county. The cause is considered at this time on a motion to quash the information which raises the sole question of whether or not a nomination to office in this state can be tested by quo warranto.

It appears that relator and respondent were candidates for nomination to the office of constable for the third justice of the peace district of Hillsborough county in the statewide primary held June 7 and June 28, 1932. The respondent on the face of the returns, having received the highest number of votes cast, was duly certified as the nominee of the Democratic Party. On July 28, 1932, this proceeding was instituted by the state on relation of Ben Watkins, the Attorney General having declined to do so. The writ commands the respondent to show by what authority of law he holds the nomination of the Democratic Party for the office of constable of the third justice of the peace district of Hillsborough county, including the title, powers, franchises and privileges incident thereto.

To support his motion to quash respondent relies on Ex parte Smith, 96 Fla. 512, 118 So. 306; Moore v. Board of County Commissioners of Leon County, 96 Fla. 519, 118 So. 476; State v. Carrington, 194 Iowa, 785, 190 N.W. 390; and In re Bewley, 138 Misc. 108, 245 N.Y.S. 105.

The two cases last cited were statutory proceedings to contest the results of primary elections under the applicable statutes of Iowa and New York, where the status of the primary law and a nomination thereunder are materially different from what they are in this state; consequently these cases are not conclusive of the case at bar. Ex parte Smith was instituted by the Attorney General pursuant to section 3582, Revised General Statutes of 1920 (section 5447, Compiled General Laws of 1927), which restricts the remedy by quo warranto when so brought to 'any person claiming title to an office which is exercised by another.' In other words, Ex parte Smith, was presented to this court in a most restricted ambit, and it was so disposed of. The cause having been brought within the terms of the statute, the court was as strictly confined thereby as was the Attorney General. If it contains words or substance decisive of any question or power not embraced in the restricted range in which it was prosecuted, they were obiter.

Moore v. Board of County Commissioners of Leon County is likewise inept, that being a suit in equity to restrain the county commissioners from putting the name of W. L. Clarke on the ballot to be voted for in the following general election, he having been nominated as a candidate for tax assessor by the county executive committee as authorized by section 354, Revised General Statutes of 1920 (section 411, Compiled General Laws of 1927).

From an examination of State v. Carrington, it seems that nomination to office in a primary in Iowa gives the nominee no preference whatever except the convenience of having his name placed on the ballot to be voted for in the ensuing general election. The defeated candidate may likewise stand for election in the general election and have the votes counted for him the same as if he had not run in the primary. A similar status prevails in New York. In neither of these states does the holder of a nomination to a political office carry with it anything in the nature of a franchise or right akin to that held by an officer. Under such circumstances, there was no premise for the remedy by quo warranto. A very different status attaches to the holder of a nomination to office under the law of this state, as we shall subsequently show.

But relator contends that this court in Ex parte Smith, supra, overlooked the liberal application permissible to quo warranto, and instead gave it a narrow technical construction decidedly within the rule of permissible allowance to it. The answer to this contention is that Ex parte Smith was decided within the scope in which it was presented, while in the instant case the question is raised in a manner that we can give it an application consistent with its purpose. In this situation we will not emasculate it by a system of refined dialectics, neither will we give it a field of operation it was never purposed to cover.

The pertinent statutes, sections 3581-3584 Revised General Statutes of 1920 (sections 5446-5449, Compiled General Laws of 1927), do not define the scope of the remedy by quo warranto except as to the method of testing the right to office, though this court has frequently said that the use of that remedy as employed in the Constitution and law of this state has reference to its application as a common-law writ.

Blackstone (3 Com. 262, [4th Am. Ed.] 322) defines quo warranto as a high prerogative writ, in the nature of a writ of right for the king against him who obtained or usurped any office, franchise, or liberty of the crown, which also lay in case of nonuser or long neglect of a franchise, or misuser or abuse of it. It is now regarded as a civil remedy, and, under the statute of 9 Anne, c. 20, was succeeded by the information in the nature of quo warranto. Under the common law the information could not be filed by an individual without the consent of the Attorney General, but this rule was changed by the statute of Anne to authorize any person interested to file it, though it cannot be used to determine a private right in which the public is not interested.

An office referred to by Blackstone comprehends a public or private employment and the right to take the fees or emoluments therefor. In our day, it comprehends definite tenure, emolument, and the exercise of some portion of the sovereign will. A franchise as used by Blackstone had reference to a royal privilege or branch of the king's prerogative subsisting in the hands of the subject, and must arise from the king's grant or be held by prescription. 3 Words and Phrases, Third Series, 760. We understand a franchise to be some special privilege conferred by government on the individual, natural or artificial, which is not enjoyed by its citizens in general. In this country it can only be exercised by grant from the state. Blackstone employed liberty as synonymous with franchise. It referred to some part of the sovereign power vested in an individual. Under our law the latter term has been very much enlarged and extended, though that phase of it has not application to this case. We are here interested in the fact of whether or not the right to nomination in a primary may be questioned by the same process that the right to an office, franchise, or liberty was questioned at the common law.

In some states such as Illinois and Kansas, quo warranto lies in any case where persons or corporations claim and exercise a privilege or immunity of a public nature without legislative authority, whether within the definition of a franchise or not. Swarth v. People ex rel. Paxton, 109 Ill. 621; State ex rel. v. City of Topeka, 30 Kan. 653, 2 P. 587. It may be employed to try the right to and oust one for engaging in the business of life insurance or banking without complying with the conditions prescribed by law therefor. People v. Utica Ins. Co., 15 Johns. (N. Y.) 58, 8 Am. Dec. 243. It was also by statute used in Louisiana to test the right to certain municipal offices. State v. Ramos, 10 La. Ann. 420. It was held in Pennsylvania that the right of a charitable institution to own property was such a franchise as warranted a proceeding in quo warranto to escheat it. West's Appeal, 64 Pa. 186. It was held in Georgia that the collection of tolls on a hihway or bridge without license or legal authority was an usurpation of a franchise justifying quo warranto. Whelchel v. State ex rel. Wiley, 76 Ga. 644. It has also been used to test the right to operate a public ferry which can only be done by a grant from the state. Appeal of Douglass, 118 Pa. 65, 12 A. 834. It was used to test the right of an individual to exercise a franchise as recorder claiming the right to vote with the aldermen. Reynolds v. Baldwin, 1 La. Ann. 162. The assumption of a mere power by an individual such as the right to manufacture an article or deal in evidences of indebtedness without authority to do so may be tested by quo warranto. Spelling, Injunction and Extraordinary Remedies (2d Ed.) vol. 2, 1566. It may also be employed to test the exclusiveness as well as the right to enjoy a franchise. Commonwealth v. Sturtevant, 182 Pa. 323, 37 A. 916. So examples of its appropriation might be continued ad infinitum, but enough of this.

There is nothing of the sacrosanct or mystical about a proceeding in the nature of quo warranto. It is subject to like canons of common sense application as the other ancient prerogative writs. The acid test determinative of whether or not it will relieve against the exercise of privileges claimed to be established as matters of publici juris by statute is found in the answer to these questions: (1) Has the Legislature prohibited its exercise by ...