F. M. Douglass et al., Appellants, vs. The County Commissioners of Baker County, Appellees, 23 Fla. 419

Me. Justice Raney delivered the opinion of the court: I. The defendants named in the bill are John C. Williams, William Jennings, William J. Thompson, David H.' Rowe and George H. Rice, as County Commissioners of Baker county, and Francis J. Pons, as Clerk and Recorder of the county.

The temporary injunction restrained the commissioners from removing the county records, offices, papers, books, furniture, or property of said county from Sanderson, and from holding meetings, or transacting business as County Commissioners, or opening county offices at Macclenny, and enjoined Pons, as Clerk and Recorder, from removing or keeping the records of his office, or opening his office for the transaction of business at Macclenny. Pons' answered the bill.

It is objected that the injunction should not have been dissolved on the answer of but two of the commissioners moving to dissolve as to themselves; and urged that the court was entitled to the knowledge of all the commissioners ; that the complainants could not force the other “two” commissioners to answer, as the time for answering had not arrived.

It is a fact shown by the record, and impliedly admitted by the contention of the solicitor for complainant as to the absence of an answer by the other “ two ” Commissioners, that only four of the five Commissioners in office at the filing of the bill were made parties. . The term of Williams, who is a party defendant, had expired, and Berry had been commissioned February 2, which was five days before the bill was filed and seven days before the injunction was granted. Berry is not a party to the bill.

The motion of the answering Commissioners, Rowe and Rice, was not for a dissolution of the injunction merely as to themselves, but is for a dissolution of the injunction granted in the cause. . Ko objection appears to have been made to a hearing of the motion by the Chancellor on the ground that but two of the four Commissioners sued had answered. If complainants desired the answer of the other defendants before a hearing of the motion they should have objected to a hearing of the motion until the other defendants had voluntarily answered, or the time had arrived for taking compulsory steps to compel an answer.

The rule that all the defendants must have answered is based on the necessity for testing the personal knowledge of all the defendants as a protection to the rights of the complainant. It is not, however, an inflexible rule. 2 High on Injunctions, §1528, et seq. ; 1 Paige, 163, and note.

One of the several exceptions is that if the answering defendant is able from his own connection with the subject matter aud consequent knowledge to lay the facts before the court which show that the complainant has no equity, the injunction may be dissolved without the answer of a defendant on whom the gravamen of the bill rests. Gregory vs. Stillwell, 6 N. J. Eq., (2 Hals) 51. The answering defendants were present at all the meetings, and had the same opportunities as the other defendants for knowledge and understanding of the transactions.

They show what the understanding of all the members was as to uniting the several petitions into one. The transcript of the proceedings of the Commissioners is the best evidence of the conclusions reached by the board. It was clearly shown that the injunction should have been dissolved, as will hereafter appear. II. The next point to be considered is that as to the petition for the election and the signatures thereto. The statement of the answer as to this point (see §2 of the answer of the statement) are positive and sworn to be true. In support of this explanation, the affidavit of J. D.

Merritt, used on the motion to dissolve, states that a number of copies of the petition, all prepared by him, and all true and correct copies or duplicates of each other were for convenience circulated among the voters, and after all the signatures were obtained, they were all attached by him to one of the duplicate copies and so presented to the board ; that he offered to the board to make an affidavit if they desired that each and every one of the signatures was cut off from a heading exactly like that presented to the board.

That the offer, as well as one as to proof of genuineness of marks of persons signing by mark, was refused by the board, they remarking substantially “ no, you need hot do this, we are satisfied that the signatures are all right,” and that, “ all the headings are like this one;” that some or all the complainants and a large number of voters opposed to a change of location were present in the room at the time and made no objection to receiving the petition or to its genuineness.

The positive statement of the sworn answer and of this affidavit, and of the fact that the petition was referred at this-meeting to a committee for examination and report, and that they reported favorably upon it, making no objection thereto, and the board accepted the same as sufficient are clearly sufficient to overcome the charges of the bill and satisfy us that though an irregularity was committed, there was no fraud in it, nor was it of such » character as to invalidate the petition or the proceedings thereon. III.

There is no statute in this State whioh prescribes-the time for meetings of the County Commissioners for transaction of general business unless the statute in Thompson's Digest, pp. 126, 127, is still in force and applicable to - the Boards of Commissioners as now constituted, and if so-there is nothing in it inconsistent with the conclusions we.reach on the point now under consideration, for under it-the president of the board, as now organized, or any two-members, may call a meeting, and the presence of three-alone is necessary to its validity. Canova vs. Commissioners, 18 Fla., 512.

The statute as to changing the location of county sites prescribes no time for holding a meeting for-action under it. It has long been the custom of such Boards of Commissioners in this State to have a stated day in each month for regular monthly meeting, and also to-hold special meetings at other times when the public interest seemed to demand. The practice violates no statute, but is both wholesome and often necessary to the common good..

To hold at this time that a special meeting called by the-chairman and participated in by all the Commissioners»- and of which no fraud or improper motive in the action taken is imputed, would we think be not onty improper but also productive of great evil. In the cases cited by appellants’ counsel to the effect that special meetings are unauthorized, there were statutes prescribing the times at which meetings should be held, aud the meetings questioned were-held at other times.

It is of no concern that when the-Commissioners adjourned on the second day of August to the first Monday in September, they impliedly at least adjourned the further consideration of the election question to-the September meeting. Ko injury is shown to have re-suited or can be presumed under the circumstances to have-resulted, or can be presumed under the circumstances to-halve resulted to the public from the consideration of the matter at the special meeting in the interim, which meeting and its purposes the public were, it appears, well advised of and attended.

The power to hold the special meeting existed, and the election held under the action taken at it was open and regular, and no surprise or inconvenience to the public was occasioned b}’ such action. IV. The objection is also made that the election is illegal because the order of the board was for an election for the “removal of the county site,” aud not for “a location of county site,” as required by law. The petition, as appears by the record, of the board, August 2d, was for “ a change of the location of the county site” of the county, as required by the statute.

In the minutes of the proceedings of August 28d the same petition is referred to as one “ asking for an election to be ordered as the law directs for removal of the county site,” the election to be ordered to take place on Thursday, the 30th day of September next.

The “ notice ” published by the clerk in the Baker County Star, which notice the clerk was, as appears by the proceedings of August 23, ordered to write out and have published in said paper, and which appears upon its face to be “by order of the County Commissioners, held this 23d day of August, 1886,” and which was prepared and read to the Commissioners at such meeting, and approved by them, and is a substantial statement of all the proceedings of the Commissioners up to that time as to such election, speaks ot the petition as “praying for a change of the location ” of the county site and states the order as one for an election “ for the location of the county site.” The notice by the Sheriff recites the filing of a pe. tition “for a change in the location of the county site,” and the granting of the petition and notifies the voters of the county that an election will be held for the purpose of 41 deciding upon the location of a county site ” for the county.

The petition, considering the recitals in the record, shows & desire upon the part of the signers of it for a change of the location of the county site and consequently, in law, for an election at which the sense of the people shall be taken as to whether or not there shall be s change or removal of the county site, and there is no jurisdictional defect as there was in the case of Lanier vs. Padgett, 18 Fla., 842, where no desire for a change was shown by the petition.

The reference in the minutes of August '23d to the petition as •“.asking for an election to be ordered as the law directs for removal of the county site ” should not, to say the least of it when considered in connection with the recital of the previous meeting, be construed as negativing the idea of an expression by the petition of the desire for a change. 'The order for the -election must be construed with reference to both of such recitals as to the petition and the only reasonable construction is that it is an order for an election at which the electors may vote for any place in the county as the county site, including the existing location of it.

There Í3 nothing limiting the voter to a choice between any two particular places, as in State ex rel. vs. Co. Coms., 22 Fla., 29. It and the notices ■of election are free from such defect, and leave the voter free to cast his ballot in favor of any place in the county he may desire. Y. We do not think the offer of MeOlenny to build a court-house at Macclenny, if the voters would locate the county site there, and his performance of the offer invalidates the election. 10 Iowa, 212; 33 Mich., 289 ; 36 Wis., 213. The authorities recognize such offers of public convenience as legitimate in such contests.

They cannot be regarded as corrupt agencies or as influencing corrupt voting. The locality as to which such offers are made presents itself in the contestas possessing the improvements or facilities covered- by the offer, and where these improvements are made in accordance with the offer, there is no deception of fraud. It is unlike the case of a candidate for office, who proposes to the electors to take for his services,, if elected, less than the legal salary, and undertakes thereby to overcome the honest objection of a voter on account of deficiencies believed to exist in him as a proper person for the office.

The latter case may involve the integrity of the government and the unfitness of officials, while the former doe3 not, but only offers to supply an actual public convenience. VI. There was no error in the consideration of the affidavits used in support of the defendants’ answer. There-is nothing in them which should necessarily appear on the records of the commissioners that does not appear on such records. There is no essential deficiency in the records which is attempted to be supplied by the affidavits or otherwise. VII.

Considering the showing made by the records, as to the application for and order (or the election and the canvass of the returns, there is no doubt that the case made by the bill was clearly overcome by the answer and affidavits in support thereof, and that the Chancellor acted properly in dissolving the injunction. The order appealed from is affirmed.