24 Fla. 112 | Fla. | 1888
delivered the opinion of the court:
The constitutionality of the Jacksonville Charter Act, Chapters 3775 and 3776, Law's 1887, was affirmed by this court in the case of State ex rel. vs. County Commissioners of Duval County, decided last November.
Considered with reference to the election held on the 13th day, or second Tuesday, of December, for Mayor and Councilmen of the new city, it is plain, as shown by the preceding statement of the case, that these statutes, by their own provisions, definitely fix certain things concerning that election, viz :. 1st, the day for the election to be held; 2d, the offices to be filled or officers to be elected ;
In addition to these provisions it is also to be observed that while the effect of section 4, of article IY, of the former of the two chapters — “ the general provisions of law governing elections held in this State are made applicable to all elections under this act ” — is not to adopt as polling places in city elections those established by county authorities under; the general election law in the same territory as polling places for county or State elections, or to impose upon State or county officials duties appertaining to the appointment of inspectors or canvassing the returns of a municipal election, still its effect is to make the general provisions of the State election law, in so far as they are not inconsistent with the provisions of the above charter acts, applicable to the election in question.
Some, at least, of the general provisions of law governing elections held in this State, which are thus made applicable to the municipal election in question, or other elections under the charter acts, are that directing that the inspectors or judges of election shall represent, if practicable, two political parties; that authorizing the voters present at the polls at the time for opening the election to choose viva voce-from their number inspectors in the place of such of those previously appointed as are absent or refuse to act, and authorizing the appointment by the acting inspectors of an elector as clerk in case the regular appointee is ab
In view of the above provisions of these statutes, and the actual division of the territory of the new city into the
If the failure of these municipal statutes to either designate the polling place in the ward, or to impose upon some existing official or particular person or board of persons the duty of doing so, renders them inoperative, then the election held in December was of no effect, and there has been no legal election and qualification of the officers of the new corporation, and, consequently, the juncture at which respondents’ functions were to cease has not been reached, and this is an end of the case.
Both the time and place of holding an election must, it is contended, be definitely provided for, or the statute will be inoperative. The facts of this case remove from it any issue as to time, for if there is an authority that holds that any further notice of the time of an election for filling a new office, or an old one for an entire term, than that given and required by the statute fixing the time, such authority, in view of the unquestionable law to the contrary, may well be left unnoticed. The conflict existing in the decisions as to the necessity of such notice to the legality of an election of which there is actual notice and a fair expression of the popular will in the case of a vacancy by death or resignation in an existing term, and the law fixes the time for filling it, need not be considered. The authorities may be said to be about unauimous upon the point that in the former case the failure to give the notice, even where it is provided that one shall be given, does not defeat the election. Where the statute itself provides the time for
The contention as to place is narrowed by the facts of this case, to the point that a statute authorizing the voters of a ward to hold an election is inoperative unless,-by its terms, it fixes the particular spot in the ward where they may east their ballots, or grants the power and imposes the duty of designating such place upon a particular officer or officers, or person or persons other than the body of voters. This idea put in another form of expression is that a statute which provides for an election, but leaves to the voters of a ward or of a city the power to fix their polling places is on account of such provision inoperative. It is inoperative, if at all, not that it violates any provision of our State or National Constitution, but because the act or function in question cannot be so performed by the people as to secure a fair expression of the will of those entitled to vote for the officers to be chosen at the election. In the absence from a statute of express provisions for fixing the polling places, it can, of course, not be said that any law has been violated by the voters in themselves fixing such places, and if the places have been fixed by the voters, or by others for them at their request, and they have voted at such places as fixed,.and the result of their votes has been ascertained, it is likewise clear that no law has been violated, nor has an election been held contrary to any provisions of law.
Whenever a power is given by statute everything necessary to the effectual execution of the power is given by implication. The failure of a statute to declare the mode of proceedings does not defeat its purpose. This doctrine has been applied by this court to statutes relating to the judicial and executive departments respectively. Mitchell vs. Maxwell, 2 Fla., 594; State ex rel. vs. Gleason, 12 Fla.,
A review of the authorities relied upon by counsel for respondents is proper, considering the importance and novelty of the case. In People vs. Knight, 13 Mich., 424, the polls of Pontiac township were held in the city of Pontiac, the territory of which city at the time of the election was
In the adjudicated cases cited above from Michigan and Pennsylvania it is clear that there was a positive violation of statutory law as to the place where the election should be held ; in the case from California the real point involved
This charter act is not altogether isolated or anomalous in our municipal legislation as to the power and duty thus devolved upon the voters of a community which it is proposed to incorporate int > a municipality. The general law for the incorporation of cities and towns now in force in this State (Chapter 1688, approved February 4, 1869) provides that whenever any community having the requisite number of qualified voters, shall desire to form a municipal corporation, they are to publish in a newspaper or by posting for-a period not less than thirty days, a notice requiring all persons who are registered voters residing within the proposed corporate limits, to assemble at a certain time and place and to organize a municipal government and select the officers thereof, and at the time and place designated in the notice, the qualified electors present, being not less than two-thirds of those whom it is proposed to incorporate, are to elect a corporate name and seal, and designate the territorial limits, and choose by vote a mayor, not less than five aldermen and a clerk and a marshal. It fias never been suggested that this act, which has now been,
The disposition and the duty of courts are to sustain popular elections whenever they have been free and fair, and it is clear that the voters have not been deprived of .their right to vote, and the result has not been changed by irregularity. In State vs. Calhoun, 61 Miss., 556, there had never been a formal designation by competent authority of the voting places in the precinct, but without such designation, Dogwood Flat Church had for years, by the ,-aetion of those participating iu elections in such precinct, been the polling place. Several months before the election of 1883 the house was removed to a point three-quarters of a mile from its former site and erected there by general consent of the neighborhood, and it was still called by its former name, and was used, as it had been before, for public assemblies and holding justices’ courts. “ The election of 1883,” says the court, “ was held in Dogwood Flat Church at irs new site, and it does not appear that any elector was at any loss to ascertain where the election for that election district was being held, or was prevented from voting because of a change of the place at which the polls were
Not only is it a fact that no law has been violated, nor any regulation of law departed from in the appointment of the polling places in the several wards, but it is also satisfactorily shown by the record that proper measures were taken to inform the public as to the same. The resolutions of the old Council of Jacksonville calling the election recites “ that it seems to be the desire of the majority of the citizens of the enlarged territory to hold the election under the new charter,” and it is alleged by relators and
In view of the failure of the statute to charge any particular officers or persons with the duty of designating the polling places, and naming the inspectors, it was, we think, exceedingly apt in the mass of the voters to invoke the agency of the City Council of the principal municipality of the territory covered by the new city, to-perform this function for them. Though it might have been done otherwise, it could hardly have been effected with greater semblance of official authority, or in a manner more likely to command immediate notice by all persons in the community.
The fact that the places adopted for voting were the legally established and duly advertised county polling places was calculated to acquaint the electors more readily with the locality in which they were to vote.
Considering the facts enumerated above, and the number
It is urged that no manner of calling an election is provided for so that the voters could be authoritatively informed of the holding of the same. The city of Jacksonville, says the brief, assumed to make this call, in order to give it more significance, and bring out the vote, but there was no law for their doing so, and it did not add to the 'legality of the election. The authorities cited in support of this objection are: Stephens vs. People ex rel., 89 Ill., 339, and Clark vs. Board Supervisors, 27 Ill., 310; Dillon on Municipal Corporations, section 197, and Cooley’s Constitutional Limitations. The doctrine of the former Illinois ease is, that where the time and place of an election are fixed by law, an omission to give the proper notice of the election will not vitiate the election held at the lime appointed by the law, but when the law fixes no time or place the doctrine announced is the same as that set forth in section 194 of Judge-Dillon’s book, and it was held that a Mayor alone had no power to call an election which the statute provided should be called by the Mayor and the City Couueil. The other Illinois case was one involving the legality of an election upon the issue of county bonds; its doctrine is that an election held without warrant of law or ordered by a person or tribunal having no authority, would be void; but that an election held by order of the proper authorities, and in the main conforming to the requirements of the statute, but wanting in some particulars not essential to the -power to hold it, and acquiesced in by the
In view of the facts of the case before us these authorities either sustain our conclusion that' the election was valid, or at least are not inconsistent with it.
II. What we have said above as to the implied power to designate the polling places, is true of both the power to-appoint inspectors, and the advisability of the agency used for such purpose. The fact that in each ward at least one of the inspectors failed to act, and in some of them also the clerk, and that the electors assembled at the polls, elected a third inspector to act with those selected by the City Council, establishes more firmly the legality of the inspectors, and of the clerks as chosen by the boards of inspectors thus constituted ; and their conduct of this election
The authorities cited as to the inoperativeness of these-municipal statutes in not expressly naming, or providing a. method for naming inspectors and clerks, are Cooley’s Constitutional Limitations, (4th edition,) p. 778; ibid. (5th edition,) pp. 776-7; Dickey vs. Hurlburt, 5 Cal., 343.
Judge Cooley, in speaking on the pages referred to, of' “ the conduct of elections,” remarks that the statutes of the different States point out specifically the mode in which elections shall be conducted, and that, although there are great diversities of detail, the same general principles govern-then» all. He then proceeds to discuss the consequence of irreg-ularities in the conduct of the election as tested by the-provisions of the statute controlling it. Election statutes, he says, are to be tested like other statutes, but with a leaning to liberality in view of the great public purposes-they accomplish; and except where they specifically provide that a thing shall be done in the manner indicated,, and not otherwise, their provisions designed merely for the-information and guidance of the officers must be regarded! as directory only, and the election will not be defeated by a failure to comply with them, providing the irregularity has not hindered any who were entitled, from exercising, the right of suffrage, or rendered doubtful the evidences-from which the result was to be declared.
The point really involved in the case of Dickey vs. Hurlburt is accurately shown in a former paragraph of this-opinion.
There is nothing in either of the above authorities to the"
III. There .were, it is urged, no means of determining the qualified voters, or iu other words, no registration of voters. The statutes in question do not require a special registration of voters in the limits of the new city for the purposes of this election. There is nothing in the present Constitution to the effect that a municipal election cannot be held without there being a separate registration of electors by either city or county officers for the purpose of such an election. Assuming that registration in the county books is an essential to voting at the election in question, neither the Constitution nor the statute before us requires any other registration in connection with such election. Though under section 1, of article IV, of the charter act, it will be the duty of the Council of the new city to provide for a municipal registration, and registration in accordance with the rules it may lawfully prescribe will be necessary to entitle one to vote at future elections, no such registration was an element of the qualification of an elector at the election in controversy. In the case of State ex rel. v. Albin et al., 44 Mo., 346, the facts wore that the statute required positively that there should be a registration before each election, and there was none; and the court held such registration to be a prerequisite to an election and that without the election was invalid.
It is not pretended that any one voted at the election who did not have the qualifications of an elector prescribed by the above mentioned section of the charter act in so far as it is applicable to this election.
IY. It is a fact, as urged by counsel for respondents, that
There is nothing in the authorities cited, viz: Cooley, 4th edition, p. 785, and State ex rel. v. Schnierle, 5th Rich., 302, to the effect that such a deficiency renders the statute inoperative or the election illegal. Judge Cooley remarks that if the electiou is purely local the inspectors who have charge of the election canvass the votes, and declare the result; and if on the other hand their district is one precinct of a larger district, they make return in writing to the proper board of the larger district, and he then proceeds to discuss the powers of canvassers, which are, as is well known, ministerial in their character. It is evident that his remarks are simply an observation of the ordinary provisions made by statutes for inspectors and canvassing hoards and they convey nothing as to the legal effect of the absence of provisions for a canvassing board. The South Carolina case is not in point.
Under the statutes it was the duty of the inspectors in the several wards to canvass and announce the votes or result of the election at their respective polling places, as shown by the ballots cast. This they did, making written certificates or statements of the result of the election. If the result of the election shown by these certificates is the true result (and that it is, is admitted here), can it be said that the omissiou of the statute to provide a distinct board to add these returns or certificates together is to defeat the election ? There is no merit in such a position. Nothing is plainer than that, it there had never been any admission of the kind, the certificates of canvass, if not of themselves,
Y. Considering all the circumstances of this election, wo see that no fraud or unfair dealiugupou the part of anyone is even charged, or appears to have been committed, no illegal vote appears to have been cast, nor has any elector been deprived of his right or of an opportunity to vote, the time and the places of the election were certain, full}’' made known, and well understood, the participation in the election has been general, the result of the vote as cast is definitely ascertained the officers elected have taken the oaths prescribed by law.
There is nothing wanting to make the election valid, and our conclusion is that the relators are entitled to exercise the offices to which they were respectively elected under the new charter in December last. The juncture at which the functions of the respondents as officials of the old city of Jacksonville were to cease has been reached, and judgment of ouster must be rendered against respondents as such.
Judgment will be entered accordingly.