State v. Johnson

• Decision Date: 15 June 1931
• Citation: 102 Fla. 19,135 So. 816
• Parties: STATE ex rel. McMULLEN et al. v. JOHNSON, City Clerk.
• Court: Florida Supreme Court

135 So. 816

102 Fla. 19

STATE ex rel. McMULLEN et al. v. JOHNSON, City Clerk.

Florida Supreme Court

June 15, 1931

Original mandamus proceeding by the State on the relation of Alonzo B McMullen and others, as members of the Board of Elections of the City of Tampa, against W. A. Johnson, as City Clerk of the City of Tampa. On demurrer to the alternative writ of mandamus.

Demurrer overruled, with permission to answer.

BROWN J., dissenting.

COUNSEL A. B. McMullen, Thomas A. Dyer, and Frank T Phillips, all of Tampa, for relators.

Karl E. Whitaker, W. F. Himes, and H. Lane Coachman, all of Tampa, for respondent.

OPINION

DAVIS J.

An alternative writ of mandamus was issued to the respondent, as city clerk of the City of Tampa, Fla., directing that he deliver to the relators, as constituting the board of elections for the city of Tampa, Fla., all registration books, ballot boxes, and all other election records and equipment of the city of Tampa, Fla., or show cause why he should not be required so to do.

The essential allegations upon which the alternative writ issued are that by virtue of an act of the Legislature passed at its 1931 session, known as Senate Bill No. 512, the relators organized and took office as the board of elections for the city of Tampa, Fla.; that on May 22, 1931, they demanded of the respondent W. A. Johnson, as city clerk for the city of Tampa, Fla., that he deliver and turn over to relators, as members of and constituting the board of elections for the city of Tampa, all registration books, ballot boxes, and all other election records and equipment of the city of Tampa, Fla., as required by said act of the Legislature.

The act of the Legislature in question is an act entitled as follows:

'An Act Regulating all Municipal Elections Held in the City of Tampa, Florida; Creating a Board of Elections for the City of Tampa, Florida, to Conduct, Hold, and Regulate All Municipal Elections, Including Primary Elections, Held in said City; Fixing the Number of the Members of said Board and Their Term of Office; Naming the Members of the First Board and Fixing Their Terms of Office; Prescribing the Qualifications, Duties, Powers, Compensation, and Method of Election of the Members of said Board; Prescribing the Duties, and Powers of said Board; Providing for and Regulating Electors and Elections in said City; Defining Political Parties in said City; Providing for the Nomination of all Candidates for all Elective Municipal Offices in said City by All Political Parties in said City; and Repealing All laws and all Parts of Laws in Conflict with this Act.'

By its terms there was created a board of elections for the city of Tampa, Fla., to be composed of five members, each of whom should hold office for the term of four years, after the first organization of the board. The names of the persons who should constitute the first board under the act were set forth therein, and it was provided that such named persons and their successors in office, as members of said election board, should be deemed officers of the city of Tampa. The specific duties of the board were, in general, to consist of conducting, holding, and regulating all municipal elections of every kind, nature, or character whatsoever, held within the city, or any political subdivision thereof, including general, special, primary, bond, referendum, recall, charter elections, and all other municipal elections. It is specifically provided in the act that no municipal election of any kind, nature, or character whatsoever shall be held within the city, or any political subdivision thereof, except in accordance with the provisions of said act (Senate Bill No. 512), and under the supervision and regulation of the board created thereby. It is further provided in the act that all powers and duties imposed upon and vested in the mayor, the board of representative, and the city clerk, by the general and special laws of the state of Florida applicable to the city, the charter of the city, and the ordinances of the city passed in pursuance of said laws, with reference to the registration of voters, conducting, holding, and regulating municipal elections, should be and they are thereby imposed upon and vested in said board of elections created by said act, and said board was thereby required to perform and exercise all such duties and powers. The statute was comprehensive in its scope, in so far as municipal elections were concerned, and the other provisions comprehended therein need not be referred to in datail in this opinion.

In considering this case, we pass by the question suggested, but not insisted upon, that the respondent city clerk is without legal standing in this court to raise the question of the constitutionality of the act in question, as a defense to the alternative writ of mandamus. See State ex rel. Atlantic Coast Line R. Co. v. Board of Equalizers, 84 Fla. 592, 94 So. 681, 30 A. L. R. 362. In that case, the rule was declared to be that, 'A court will not, as a general rule, pass upon a constitutional question and decide a statute to be invalid, unless a decision upon that very point becomes necessary, and it is also a rule that a court will not listen to an objection made to the constitutionality of a statute by a party whose personal or property rights it does not affect, and who has, therefore, no interest in defeating it. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform.'

In the case at bar, the respondent insists that he has an interest in the subject of the present proceeding, sufficient to entitle him to raise the constitutionality of the statute under consideration. Whether this contention should be sustained or not is not required to be decided, because the relators have, in effect, waived the point in the oral argument at the bar.

Passing to the question of the constitutionality of the statute, the act appears to be within the rule of permissible legislation for cities and towns authorized by section 8 of article 8 of the Constitution of Florida, as construed by this court in the case of State ex rel. Johnson, Attorney General, v. Johns, 92 Fla. 187, 109 So. 228.

In that case, this court, speaking through Mr. Justice Whitfield, stated the rule of constitutional law, regarding such matters, to be as follows:

'Where a statute does not violate the federal or state Constitution, the legislative will is supreme, and its policy is not subject to judicial review. The courts have no veto power and do not assume to regulate state policy, but they recognize and enforce the policy of the law as expressed in valid enactments, and decline to enforce statutes only when to do so would violate organic law.

'Whatever the phrase 'local self-government' may mean in government, the Constitution of this state contains no express provision with reference thereto, and there are no provisions of the organic law that so modify the express provision of section 8, art. 8, of the Constitution, that 'the Legislature shall have power to establish and to abolish municipalities, to provide for their government, to prescribe their jurisdiction and powers, and to...