257 So. 2d 70 | Fla. Dist. Ct. App. | 1972
C. W. Lacy, an incumbent running for re-election in 1970 to the Manatee County School Board, received 13,375 votes. Appellant Evers, his opponent, received 13,372 votes. Whereupon, pursuant to statute,
Appellant’s standing to bring this suit depends upon his being an “unsuccessful candidate.”
Appellant argues, first, that appel-lee Lacy is estopped from asserting the ineligibility of appellant for the reason that
He next counters, as he did below, that Lacy himself is ineligible as a candidate since he also failed to comply with the “resign to run law” in that he was a member of the Commissioner of Education’s Advisory Committee, headed by the Honorable Floyd Christian, from which he has not resigned. The trial judge found, and we would agree, that there is insufficient evidence in the record from which a determination could be made that Lacy was in fact appointed to such a commission for a definite term or for such period as would require his resignation under the aforesaid “resign to run law.” Additionally, it appears that even if Lacy were appointed to such a committee, and that his membership thereon was to run concurrently with his new term of office, such membership was ex officio in connection with, and within the scope of, his duties as an incumbent county school board member. We thus reject appellant’s second point.
Now, with regard to the merits of whether Evers’ membership on the city Substandard Housing Board required compliance with the “resign to run law,” Evers urges, first, that such membership was a non-remunerative, civic service, that the board acted in an advisory capacity only and that it existed solely at the pleasure of city council. He submits, therefore, that such a board is not within the purview of the “resign to run law.” Secondly, he suggests that that law only contemplates “incompatible” offices which, he argues, cannot include the two offices in question here. As authority for the latter proposition he patently mis-cites Holley v. Adams.
Finally, appellant has recently filed a “Notice of Reliance” in which he points out that subsequent to the filing of the Notice of Appeal herein the legislature enacted Chapter 71-373, Laws of Florida 1971, which amended the “resign to run law” by providing that: “No person who serves as a member of any appointive board or authority, without salary, shall be in violation of this section by reason of holding any such office.” He relies on Florida East Coast Railway Company v. Rouse
In view of the foregoing, therefore, we think the trial judge was correct and that the judgment appealed should be, and it is hereby, affirmed.
Affirmed.
. See, § 102.161, F.S.1969, F.S.A.
. Id.
.§ 99.012(2) F.S.1969 (1970 Supplement).
. (Fla.1970), 238 So.2d 401.
. (Fla.App.1970), 239 So.2d 132, cert. denied (Fla.1970), 239 So.2d 825.
.(Fla.1967), 194 So.2d 260.
. Cf., Seaboard Coast Line Railroad Co. v. O’Connor, (Fla.App.1969) 229 So.2d 663, 666.