Williams v. Keyes

• Decision Date: 14 December 1938
• Citation: 186 So. 250,135 Fla. 769
• Parties: WILLIAMS et al. v. KEYES et al.
• Court: Florida Supreme Court

186 So. 250

135 Fla. 769

WILLIAMS et al. v. KEYES et al.

Florida Supreme Court

December 14, 1938

Rehearing Denied Jan. 11, 1939.

On Motion to Vacate Order Jan. 28, 1939.

Suit by Kenneth S. Keyes and others against Robert R. Williams and others to compel holding of a recall election in the city of Miami. From an adverse decree, defendants appeal.

Affirmed.

BROWN and THOMAS, JJ., dissenting in part, and BUFORD, J dissenting.

On Petition for Rehearing. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

J. W Watson, Jr., E. F. P. Brigham, Vincent C. Giblin, and Marion E. Sibley, all of Miami, for appellants.

M. Lewis Hall and Alfred E. Sapp, both of Miami, for appellees.

D. H. Redfearn, R. H. Hunt, Herbert S. Sawyer, George E. McCaskill, and Abe Aronovitz, all of Miami, amici curiae.

On October 7, 1938, three persons who are alleged to be citizens, taxpayers and electors of the City of Miami Florida, filed with the senior Judge of the Circuit Court for Dade County, Florida, in which county the City of Miami is situated, a 'bill of complaint and petition for relief' against the five Commissioners of the City of Miami and the Acting Clerk and the de jure Clerk of the City of Miami, Florida. Filed in the Clerk's office, October 10, 1938.

The bill of complaint and petition contains extended allegations respecting acts and conduct of the defendant city officials in relation to an election to recall three of the City Commissioners under the provisions of the City Charter.

The prayer of the bill and petition is as follows:

'Wherefore, your Plaintiffs and Petitioners pray:

'1. That this Honorable Court take jurisdiction of this cause and give and grant unto them such appropriate and adequate relief as may seem meet and proper.

'2. That a Mandatory Injunction be forthwith issued and directed to the Defendant, A. D. F. Bloodworth, directing and requiring him to produce before this Court the Regislation Books of the City of Miami, Florida, together with the Amended Petition for the Recall of the three Defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida, and such other papers and records as may now be in his office or in his possession and control affecting in anywise or manner the sufficiency or insufficiency of said Amended Petition.

'3. That a Mandatory Injunction be forthwith issued and directed to the Defendant, Frank J. Kelly, directing and requiring him to produce before this Court any and all books, papers and records over which he has control affecting in anywise or manner the sufficiency or insufficiency of the Amended Petition for the Recall of the three Defendants, Robert R. Williams, John W. Dubose and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida.

'4. That, thereupon, this Court determine and ascertain from said Registration Books, Amended Petition for Recall of the three said Commissioners and such other papers and records as may be brought into the Court, whether or not the intended action of Frank J. Kelly, as Clerk of the City of Miami, Florida, to certify to the sufficiency of the said Amended Petition for the Recall of the three defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida, should be in Law and Equity treated as having been done, and likewise to determine whether or not the failure of the said A. D. F. Bloodworth, as Acting Clerk of the City of Miami, Florida, to certify to the sufficiency of said Amended Petition is an arbitrary and prejudicial act and a part and parcel of conspiracy between him, the said Bloodworth, and the three said Defendant-Commissioners whose recall is sought, and, if in law the said Amended Petition is sufficient, that the Court apply thereto the maxim that Equity regards and treats that as done which in good conscience ought to be done.

'5. That in the event the Court so finds that said equitable principle should be so applied that forthwith the Defendants, Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R. C. Gardner and J. N. Lummus, as City Commissioners of said City of Miami, Florida, and as the City Commission of said City, be ordered and directed to order the holding of a Recall Election for the said three Defendants so sought to be recalled as required under the Laws of Florida and the Charter of the City of Miami, Florida.

'Alternative Prayer

'In the alternative, the Plaintiffs and Petitioners pray that this Court exercise its statutory jurisdiction as conferred in that portion of Section 12 of the Charter of the City of Miami, Florida, to-wit:

"Should the Commission fail or refuse to order an election as herein provided within the time required, such election may be ordered by any State Court of general jurisdiction.' and that the Court do forthwith issue to the Defendants, Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R. C. Gardner and J. N. Lummus, as the City Commission of the City of Miami, Florida, a rule to show cause, returnable to a certain day, as to why this Court should not order an election as above provided because of their failure or refusal to proceed in accordance with Law; that, thereafter, this Court proceed to order an election in accordance with its statutory powers.'

An order to show cause was issued by the Judge as follows:

'It having been made to appear by sworn Bill of Complaint and Petition that the Defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, severally as Commissioners of the City of Miami, Florida, and constituting a majority of said City Commission, and the Defendant, A. D. F. Bloodworth, Acting Clerk of the City of Miami, Florida; have entered into a fraudulent and unlawful conspiracy to deprive the Plaintiffs and Petitioners of their respective rights under the Charter of the City of Miami, Florida, the Laws and Constitution of the State of Florida, viz., to vote upon the recall of the three said Commissioners, and it having been made to further appear from said sworn Bill of Complaint and Petition that Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R. C. Gardner and J. N. Lummus, as the City Commission of the City of Miami, Florida, have failed and/or refused to order a recall election, all as set forth in the said Bill of Complaint and Petition filed in this cause, and the Court having duly considered the same, it is, thereupon,

'Ordered and adjudged that the Defendants, Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R. C. Gardner and J. N. Lummus, severally as a Commissioner of the City of Miami, Florida, and as the City Commission of the City of Miami, Florida, do show cause, if any they have, before the undersigned, one of the Judges of the Circuit Court, in and for Dade County, Florida, at his Chambers in the Courthouse in the City of Miami, Florida, at 9:00 o'clock A. M. on Wednesday, October 12, A. D. 1938, or as soon thereafter as Counsel can be heard, why this Court should not order an election for the recall of the three Defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as City Commissioners of the City of Miami, Florida.

'It is further ordered and adjudged that the Defendants, A. D. F. Bloodworth, as Acting Clerk of the City of Miami, Florida, and Frank J. Kelly, Clerk in jure of the City of Miami, Florida, do appear and produce before me at the time and on the date aforesaid, the Amended Petition for the recall of the three said Defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida, and such other papers and records as they, and each of them, may have in their possession and control affecting in anywise or manner the sufficiency or insufficiency of said Amended Petition.

'Fail not under penalty of the law.

'Done and ordered in Chambers at Courthouse, Miami, Dade County, Florida, on this the 10th day of October, A. D. 1938.

'H. F. Atkinson

'Circuit Judge.'

A motion to strike specified portions of the bill of complaint was granted in part, and a motion to dismiss the bill of complaint was denied in so far as it applies to the bill of complaint as deleted by the order of the Court on the motion to strike.

Defendant Frank J. Kelly filed an individual answer. The other defendants filed a joint and several answer to the bill of complaint and petition.

The statute involved, section 12 of Chapter 10847, Special Acts of 1925, is as follows:

'Sec. 12. Procedure for Filing Recall Petition.--Any member of the Commission may be recalled and removed therefrom by the electors of the City as herein provided.

'Any qualified elector of the City may make and file with the City Clerk an affidavit containing the name or names of the Commissioner of Commissioners whose removal is sought and a statement of the grounds for removal. The Clerk shall thereupon deliver to the elector making such affidavit copies of petition blanks for such removal, printed forms of which he shall keep on hand. Such blanks shall be issued by the Clerk with his signature and official seal thereto attached; they shall be dated and addressed to the Commission, shall contain the name of the person to whom issued, the number of blanks so issued, the name of the person or persons whose removal is sought, and the office from which such removal is sought. A copy of the petition shall be entered in a record book to be kept in the office of the Clerk. The recall petition, to be effective, must be returned and filed with the Clerk within thirty (30) days after the filing of the affidavit. The petition before being returned and filed shall be signed by registered voters of the City of the number of at least...