Opinion
November 20, 1951.
Appeal from the Circuit Court for Highlands County, Don Register, J.
Sumter Leitner, Arcadia, and S. Colquitt Pardee, Jr., Avon Park, for appellants.
Keith E. Collyer, Avon Park, for appellees.
On September 11, 1951, a municipal election was held in the City of Avon Park for the purpose of electing a Mayor and five Councilmen to control and manage the affairs of the municipality, as provided for in Section 10, of Chapter 12514, Special Acts of 1927, Laws of Florida, which Act is the charter of the City of Avon Park. Municipal elections held by the city prior to 1951 were usually conducted at one designated polling place in the city where the voters cast their ballots, but in the September, 1951, municipal election voting place Number Two was arranged by the city officials where qualified colored voters of the city could go and cast their ballots. The Inspectors and Clerk of Precinct Number Two were colored voters and had the exclusive supervision and management of the municipal election in Precinct Number Two.
On September 15, 1951, the City Council of Avon Park met for the purpose of canvassing the returns of the election previously held and at said meeting adopted a certain resolution, and pertinent portions thereof are viz.:
"It was determined by the investigating committee that there was insufficient evidence introduced to determine fraud or material irregularities which would change the result of the election as to be sufficient in itself to cause a rejection of all votes cast in Voting Place No. 2.
"Therefore Mr. Lewiston moved the adoption of the following Resolution seconded by Mr. Gough.
"Resolution
"Whereas, after careful canvass of the tabulations and certificates of the two election boards of a Municipal Election held Sept. 11th, 1951, for the purpose of electing a Mayor and five councilmen for the City of Avon Park, Florida we find that Wiley Sauls, Jr. received 877 votes for Mayor, and further appearing that M. Kirkland received 685 votes. Lenny Rush received 1008 votes, Mark Smith received 985 votes, W. Clifford Thomas received 913 votes, J.B. Sparks received 642 votes for councilman, and it further appearing that the above named received the highest number of votes of any candidate in said election.
"Now: Therefore Be It Resolved, that the City Council of the City of Avon Park, Florida, based upon its canvass of such tabulation and certificates, declares the following persons duly elected to the respective offices of the said City for a term of two years beginning October 1st, 1951.
Wiley Sauls, Jr. Mayor M. Kirkland Councilman Lenny Rush Councilman Mark Smith Councilman W. Clifford Thomas Councilman J.B. Sparks Councilman "Adopted this 15th day of September, 1951."On September 25, 1951, the City Council of the City of Avon Park again convened and received a "new complaint" as to irregularities of the September 11, 1951, election, "which complaint is of such a serious nature that it warrants the further consideration of the City Council as said City Council is the judge of its elections." The resolution so adopted by the City Council further recited: "It is evident to the said Council that there has been a grave irregularity in said election sufficiently serious to change the entire results of said election and that it is impossible to ascertain the number of valid and invalid votes cast in Voting Place No. 2 on the said 11th day of September, 1951." (Emphasis supplied.)
Pertinent here are the following portions of this Resolution adopted by the City Council of Avon Park at its September 25th meeting:
"Now Therefore, Be It Resolved By The City Council, City Of Avon Park in regular Recess Meeting Assembled, that by reason of the above irregularity and uncertainty of ballots cast in voting Place No. 2 at the Regular Municipal Election held on the 11th day of September, 1951, that all ballots cast in voting Place No. 2 be declared illegal and void, and, are not to be counted.
"Be It Further Resolved by said City Council that the returns in said election held on September 11th, 1951, be recanvassed and reconsidered, and
"Be It Further Resolved by said City Council, that the Resolution adopted on the 15th day of September, 1951, declaring the results of said election be and the same is hereby rescinded and declared to be of no effect.
* * * * * *
"Be It Further Resolved that the said City Council, City of Avon Park do hereby declare the following persons to have been duly and legally elected to the following offices:
Mayor O.C. Wilkes City Council E.W. Gough Lenny Rush Mark Smith W. Clifford Thomas Oscar Wolff"
It appears that the City Council in its Resolution of September 15, 1951, declared Wiley Sauls, Jr., duly elected Mayor, and M. Kirkland and J.B. Sparks each, as well as others not here complaining, duly elected members of the City Council of Avon Park. The Resolution declaring the aforesaid result of the September 11, 1951, election of the City of Avon Park was based on the tabulations of returns as made by the City Council of all votes cast by the voters, inclusive of the colored votes as cast in Precinct or Voting Place No. 2 of the City of Avon Park. The second Resolution adopted September 25, 1951, by the City Council of the City of Avon Park had the effect: (1) to cancel or invalidate and hold as naught its Resolution previously adopted on September 15, 1951; (2) it declared the result of the municipal election solely on the white votes cast; (3) it refused to count or consider in declaring the results of the election votes cast by the colored votes in Voting Place No. 2; (4) for irregularities, fraud and various reasons the City Council threw out the votes of the colored people as by them cast in Voting Place No. 2; (5) the adoption of the subsequent Resolution resulted in the defeat of the appellees.
The relators-appellees, Wiley Sauls, Jr., J.B. Sparks and Mannin Kirkland, filed their petition for an alternative writ of mandamus in the Circuit Court of Highlands County, Florida, against named individuals as constituting the Canvassing Board of the City of Avon Park. It is alleged that the Canvassing Board exceeded its lawful duty and authority by passing upon and deciding certain alleged irregularities purporting to have existed on September 11, 1951, in Voting Place No. 2 of the City of Avon Park. An alternative writ issued, when a motion to quash was made and by the trial Court denied.
The answer or return of the Canvassing Board to the alternative writ set forth that the City Council on September 25, 1951, acting upon information and having taken evidence as to gross irregularities and fraudulent acts occurring at Polling Place No. 2 on September 11, 1951, in the exercise of the discretion vested in the Municipal Canvassing Board, did hold and determine that because of "such irregularities and fraud at said polling place No. 2 in Avon Park all ballots cast therein were illegal and void and should not be counted." Since the ballots were illegal and void they should not be considered. The irregularities and fraudulent acts invalidating the votes cast in the polling place No. 2 are set out in the answer, which are viz.:
"(a) That the Clerk of the City of Avon Park, without any authority of law, and contrary to the ordinances of the City of Avon Park, appointed one, W.J. Robinson, as one of the inspectors of the City Election at polling place No. 2 and said Robinson unlawfully assisted voters at said election thereby destroying the secrecy of the ballot.
"(b) That under the ordinances of the City of Avon Park (Ordinance No. 12 Section 19) it is provided that: `Any elector applying to vote who by reason of blindness or the loss of the use of the hand, or hands, is unable to prepare his ballot, may have the assistance of the inspectors who shall retire to the booth or compartment and there prepare the electors ballot so as to indicate the elector's choice of candidate as to each office to be filed without suggestion or interference from the inspector and in all cases, any elector before retiring to the booth may have the clerk read over to him the title of the office to be filled and the names of the candidates thereof,' but, contrary to the said ordinance of the said City the said W.J. Robinson assisted voters in the marking of their ballots, when said voters were not blind and had not lost the use of their hand or hands.
"(c) That the said W.J. Robinson, as did also Calvin Gibbs, Nathaniel Backer and Earnest Sims, the last three being election officials duly appointed entered into the election booth with voters who neither asked for assistance in the marking of their ballots nor were entitled, under the said ordinance, to such assistance.
"(d) According to the testimony of the Sheriff in attendance at said polling place No. 2 at said election, more than one-half of the voters at said polling place were unlawfully assisted in the preparation of their ballots by the election officials there, when such voters were not, under the ordinance of the City of Avon Park, entitled to such assistance, said voters being neither blind nor having lost their hand or hands.
"(e) That 1500 ballots were delivered to the election officials at polling place No. 2; 397 were marked and cast by the voters there; 799 were unused and placed in the ballot box, while 304 of the said ballots were and are yet unaccounted for although the ordinances of the City of Avon Park, being Section 5 of Ordinance 43, which reads as follows: `When the said polls had been closed, the inspector shall proceed to count the votes and to make out their returns in duplicate, which shall be signed by the inspectors and clerk, one copy of which shall be delivered to the President of the Town Council within 24 hours after said election; the other copy of said return, together with tally sheets, ballots, ballot stubbs and memoranda in connection with said election shall be placed in the box used as a ballot box.'"
The Court below granted a peremptory writ of mandamus, the answer or return of the respondents notwithstanding. The commands of the writ required the named respondents, as comprising the City Council and Canvassing Board of the City of Avon Park, to immediately convene, as such Canvassing Board, and to repudiate, vacate, cancel out and set aside the resolution adopted on September 25, 1951, whereby they declared O.C. Wilkes elected as Mayor, and E.W. Gough and Oscar E. Wolff elected Councilmen, and they were further commanded to reinstate in full the Resolution adopted under date of September 15, 1951. The writ issued without prejudice against any proper parties in seeking through proper proceedings such remedies as may be considered available for the proper consideration and determination of the question raised in the answer or return of the respondents and all other questions not adjudicated in this suit. The respondents appealed.
Counsel for appellants contend that the City Council, acting as a Canvassing Board of Elections, inclusive of the one held in Avon Park on September 11, 1951, possessed the power and authority under its charter, ordinances, and applicable statutory law to hear and receive testimony, evaluate and weigh the same, and consider and determine the legal questions of whether or not the several acts set out in the answer, supra, constituted such fraudulent acts or irregularities as were legally sufficient to authorize the Canvassing Board of Elections to adopt the Resolution dated September 25, 1951.
Counsel for appellees contend that the City Council of Avon Park, acting as an election Canvassing Board, is without power to hear evidence of the several acts of fraud alleged in appellants' answer, supra, and thereafter determine that the votes cast in Voting Place No. 2 were illegal; that the power to hear and determine such questions is conferred upon our courts and Section 11 of Article 5 of the Constitution of Florida, F.S.A., provides the appropriate forum. It is pointed out that the Canvassing Board of Avon Park was without authority to go behind the returns of the September 11th election.
Counsel for appellants, in support of their contention, cite the following language of Section 24 of Chapter 12514 of the charter of Avon Park, viz.: "Said City Council shall judge the election and return of its * * * members, and prescribed rules for the determination of contested election." (Emphasis supplied.) Also Section 165.18, F.S.A., which provides: "City or town council may judge of the election returns and qualifications of its own members, make such by-laws and regulations for their own guidance and government as they may deem expedient." (Emphasis supplied.) Also Section 165.13, F.S.A.: "The city or town council may establish rules, regulations and fees for the registration of voters, for the annual election of municipal officers, and for the filling of all vacancies which may occur in the city or town government, and for such other municipal elections as may be authorized by law." Pertinent parts of the ordinances of the City of Avon Park are set out in appellants' answer, supra. Counsel relies heavily on our recent case of Robarts v. State ex rel. Smith, 160 Fla. 960, 37 So.2d 577.
It is a well established rule of statutory construction that the language of a statute may be so plain as to fix the legislative intent and leave no room for construction. If the statute is plain and unambiguous and admits of but one meaning, the courts in construing it will not be justified in departing from the plain and natural language employed by the Legislature. Armistead v. State ex rel. Smyth, Fla., 41 So.2d 879. The language of the charter is limited to judging "the elections and returns of its members" and Section 165.18 provides that the "city or town council may judge of the election returns." The authority of the City Council, by the above quoted language, is limited to the returns of the elections.
Chapter 12514, Special Acts of 1927, being the charter of the City of Avon Park, was enacted by the Legislature pursuant to Section 8 of Article 8 of the Constitution of Florida, which provides: "The Legislature shall have power to establish, and to abolish, municipalities to provide for their government, to prescribe their jurisdiction and powers, and to alter or amend the same at any time. When a municipality shall be abolished, provisions shall be made for the protection of its creditors." We have held that the Legislature in its enactments is always presumed to have intended to enact constitutional Acts. When the Legislature passed the charter of Avon Park it had before it the provisions of Section 11 of Article 5 of the Florida Constitution. The Legislature was without authority to confer on the City Council of Avon Park judicial powers then vested in the Judicial Department of our government under the Constitution of Florida.
The language employed, supra: "shall judge the election and return," must be held to mean that the "Canvassing Board" shall determine whether the paper is a return or certificate signed by the inspectors and clerk of the municipal election, — and then, if possible so to do, to ascertain the number of votes cast for each person for each office voted for, then compute the figures from the several returns and certify the aggregate votes and publicly declare the result of the election. The Canvassing Board has no judicial discretion. It was without authority to judge the legality or validity of the returns or the votes cast in Voting Place No. 2. These questions are for the judiciary and the Court below, in its order, left the door wide open for those desiring to litigate further to enter and be heard by an appropriate tribunal.
Appearing in the early Florida Reports are many cases involving election contests decided by this Court during and prior to the Reconstruction period. In each of these we held that mandamus was an appropriate remedy. For some of these adjudications see: State ex rel. Bloxham v. Gibbs, 13 Fla. 55; County Comm'rs Columbia County v. King, 13 Fla. 451; State ex rel. Drew v. McLin, etc., State Canvassing Board, 16 Fla. 17; State ex rel. Bisbee v. Board of Canvassers, etc., Alachua County, 17 Fla. 9; Comm'rs Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 So. 471, 12 Am.St.Rep. 183. We are unable to agree with counsel's interpretation of our holding in Robarts v. State, supra.
The judgment appealed from is affirmed.
SEBRING, C.J., THOMAS, J., and WALKER, Associate Justice, concur.