The State of Florida ex rel. Marcus L. Smith, Plaintiff, vs. James E. Anderson, Defendant, 26 Fla. 240

Raney, C. J.: The defendant has moved to quash the “ information and proceedings ” herein on twenty-six grounds. We shall give our views on such of them as seem to merit any notice. I. This court decided in 1868, in the case of State ex rel. vs. Gleason, 12 Fla., 190, that the grant of power to issue a writ of quo warranto embraces and includes the proceeding by information in the nature of a quo zvarranto, the latter being civil in its essential incidents, and having in view the same object.

There .is nothing in our jurisdiction as defined by the presest Constitution that renders the above decision inapplicable or without controlling authority now; nor does the case of State vs. Christie et als., 1 Ark., 279, convince us that there is error in the conclusion reached in the Gleason case, 33 Mo., 97; 38 Mo., 535; 32 Mo., 379; State vs. West W. R. Co., 34 Wis., 197.

We are satisfied of our jurisdiction to entertain proceedings upon informations in the nature of a quo warranto, and it should be regarded as long since settled in this State, both by authority and by a uniform and frequently recurring practice, as the decisions and records of this court manifest. II. The second

section of the act of February 2, 1872, McClellan’s Digest, 846, provides that any person claiming title to an office which is exercised by another, shall have the right, upon refusal by the Attorney-General, to institute proceedings in the name of the State upon such claimant’s relation or upon the Attorney-General’s refusal to file a complaint setting forth his name as the person rightfully entitled to the office, to file an information or institute an action in the name of the State against the person exercising the office, setting up his own claim.

The court is authorized to determine the right of the claimant to the office if he so desires, but no one is to be adjudged to be entitled to an office except upon full proof. In this case, the Attorney-General has, as is shown by a letter from him in the record before us, made the refusal contemplated by the statute, and the relator, through counsel, presented an information and moved for leave to file the same, and leave was granted and order for process made.

It is urged that the act is unconstitutional because, or in So far as it permits the institution of the proceeding by the claimant without the intervention of the Attorney-General. The information in the nature of a quo warranto had, even prior to the statute of Anne, (Chapter 20, 9th year of Anne, A. D. 1711), practically superseded the old and less convenient writ of quo warranto.

The old writ was a civil remedy, and though the information was criminal in form, it in time came to be regarded and has long since been considered as essentially a civil remedy, resorted to for the purposes of testing a civil right by trying the title to an office or franchise and ousting the wrongful possessor thereof. High, Ex. Rem., Sections 591, 600, 602, 603.

The statute of Anne provided that if any person or persons should usurp the offices and franchises of mayors, bailiffs, port-reeves and other offices, within certain cities, towns corporate, boroughs and places, * * * it should be lawful for the proper officer in each of the courts, with the leave of the court, to exhibit an information or informations in the nature of a quo warranto, at the relation of any person or persons desiring to sue or prosecute the same, who shall be mentioned in such information or informations as the relator or relators against the alleged usurper.

Without passing upon the questions whether the information can be filed by the Attorney-General, independently of the discretion of the court when he acts on the relation of a private person, as it certainly can be when he acts on his own relation or ex officio in behalf of the public, or whether leave to file an information could heretofore be moved for by a private relator, without the intervention of the Attorney-General, in the case of a municipal office like this, we can see nothing in the objection made that is fatal to the above provision of the act of 1872.

The power of the Attorney-General to file an information if he sees fit to do so is not taken away; the judgment is not binding on the State,

Section 3, p. 847, McClellan’s Digest; nor is the purpose of the proceeding changed, but the practice or mode of reaching the result of determining who is entitled to the office has simply been modified, and no constitutional rights of a defendant in such proceeding are in any wise impaired by the modification; and the jurisdiction of the court is not extended to any purpose not included in’the constitutional grant. High on Ex. Rem., 681; Rex vs. Wardroper, 4 Burrow, 1964; People vs. Railroad Co., 30 Am. Dec., 33 and notes; State vs. Vail, 53 Mo., 97, Commonwealth vs. Chuley, 56 Pa. St., 270. III.

The Town of Daytona, must, upon the pleadings, in the absence of a special charter act, be regarded as incorporated under the general law regulating the incorporation of cities and towns. If there was a special or private law constituting its charter we would, under

Section 120, page 838, McClellan’s Digest, doubtless, take judicial notice of it without its being specially pleaded. The information alleges that the town “is a municipal corporation duly incorporated under the laws of the State of Florida, and pursuant to the statutes of the State of Florida in that behalf, and was such municipal corporation” on a particular day specified. This is a sufficient allegation of incorporation under the. general corporation law; and in so holding we do not antagonize the decision in People vs. DeMill, 15 Mich., 164. The general municipal corporation law,

Section 15, page 248, McClellan’s Digest, provides that the “city or town council shall have power and authority to judge of the election returns and qualifications of its own members,” and it is urged that this grant deprives the courts of jurisdiction to inquire into the right or title of an alderman or member of the town council to his office. The better authority, as we think, and it seems, the weight of it, is against the proposition that the above grant to the council ousts, of itself, the jurisdiction of this court to inquire, upon informations in the nature of quo warranto, into the defendant’s title.

High on Ex. Rems., Section--; 1 Dillon on Municipal Corporations, Sections 202, 203 and notes; McCrary on Elections,

Section 345; State ex rel. vs. Kemp, 69 Wis., 470; S. C. 2 Am. St. Rep., 753; People ex rel. Hatzell vs. Hall, 80 N. Y., 117; Commonwealth vs. Allen, 70 Penn. St., 465; Kendall vs. Camden, 47 N. J. (Law), 117; State ex rel. vs. Fitzgerald, 44 Mo, 423; Ex-Parte Heath, 3 Hill, 42, and other cases cited in these authorities.

It is not necessary or proper upon the pleadings before us to say anything as to what grants to a council will be, regarded as excluding the jurisdiction of the courts, or what will be the effect upon the authority or duty of the courts to act if proceedings involving a contest between opposing claimants, and to which they are parties, are either pending before the council at the time the power of the court is invoked or have previously reached a decision upon the merits of the controversy. IV.

The legality of the election is assailed on grounds which rest upon the town ordinance passed and approved July 22, 1889, which ordinance, under the express provisions of the general municipal corporation act,

Section 11, p. 247, McClellan’s Digest, became “ a law ” on receiving the approval of the Mayor. The subsequent

section (41, page 234) making it the Council’s duty to promulgate “without unnecessary delay all laws and ordinances which they may enact, by posting or publishing, for a period of not less than four weeks,” as therein directed, does not postpone the operation of the law till after such promulgation has been made. The first of these alleged illegalities is the fact that the ordinance provides for the election of “councilmen,” whereas the statute authorizes the election of “aldermen.” Sec. 4, p. 246. The language of the statute is: There shall be chosen * * * “aldermen who shall be known as the city council.” In another

section of the statute,

Section 15, page 248, it is enacted that two-thirds of the “ council may expel a mem • ber of the same” for specified causes. According to allegations of the information which are admitted, the various persons voted for, for members of the council, were in fact voted for as “aldermen,” and not as “councilmen,” but assuming that they were voted for as “councilmen,” which the return of the inspectors report the fact to be, as to all votes counted by them, we see nothing in the mistake as to the title of the officer that is of any practical consequence in so far as the validity of the election is concerned.

The terms councilmen and aldermen, when used in an ordinance, as in this case, can mean under the statute but one and the same thing, and both reason and authority are against such an error having the effect to defeat an election. It is altogether unreasonable to suppose that an elector voting for persons for “councilmen,” at an election under this statute and ordinance, understood or intended anything else than that he was voting for an alderman or member of the town council. In People ex rel. Akin et al. vs.

Matteson et al., 17 Ill., 167, the statute provided for the election of “Police Magistrates,” and was enacted under a provision of the constitution authorizing the legislature to provide for the election of “Justices of the Peace.” The municipal ordinance under which the election wag held used the statutory designation : Police Magistrates.

At the election nearly all the votes were cast for “ Police Justices,” and a few for “ Mágistrates,” and a few for “ Police Magistrates of the City of Chicago,” and it was held that the terms “Police Justices” and “ Police Magistrates” were equally within the meaning of the constitution and the intention of the statute; and that the votes given under either designation should be counted. The principle of this decision is that controlling in all election cases, and is that the intention of the voters as shown by their ballots should be given effect by the courts and must control.

It was well said in that case that the court was called upon to determine from the evidence the simple fact of the intention of the voters; and that no rational mind could doubt upon the question of fact of their intention to vote for the relators to fill the offices for which the election was ordered, and that this was so palpable .that its discussion would not be attempted; and we may say the same as to the intention of the electors of Daytona when voting for relator and others as “ councilmen ” to vote for them as “aldermen,” and the meaning of the ordinance in the use of the former term.

Our conclusion is, that the ballots should, notwithstanding this objection, have been counted 'by the inspectors, and that the use of the word “ councilmen ” did not affect the validity of the ordinance or the election. See also Dillon on Municipal Corporations,

Section 198; Hawes et al. vs. Miller, 56 Iowa, 395; State vs. Cavers, 22 Ib., 343; Catlett vs. Lowry et al., 45 Ib., 478; Carpenter vs. Ely, 4 Wis., 420; People vs. McManus, 34 Barb., 620; State ex rel. Spaulding vs, Elwood, 12 Wis., 551; Detroit, Eel River & Illinois R. R. Co. vs. Bearss, 39 Ind., 598; State ex rel. Phelps vs. Goldthwaite, 16 Wis., 146.

The other objections may be explained thus ; The ordinance provides that there shall be distinct and separate ballot boxes to receive the ballots for the following “officers : Mayor, Councilmen, Assessor; Collector, Treasurer, Clerk, Marshal, and in case of a special election one box for each question, and that all ballot boxes shall be marked in plain Roman type or in plain handwriting, designating the office for which the ballot is intended; and the ballots shall be of plain white paper and not more than a specified length and width, and shall contain nothing, but the names of the officer or officers to be voted for.” The information alleges that this ordinance was enforced up to the time of closing the polls at the election; that there were seven ballot boxes to receive the ballots for the respective offices, and among the others one to receive those for the offices of “ aldermen,” and that the same were marked in plain handwriting designating the office for which the ballots were intended, and one was so marked designating it as intended to receive the ballots for the office of “aldermen,” and that it was understood on the day of the election by the Inspectors and by all persons then and there legally qualified to participate in the election that this was intended.

That there were put in the box prepared for the offices of aider-men one hundred and three or more ballots corresponding to the description specified by the ordinance and containing nothing but the names of the relator and George H. Count and James H. L. Slayton, who, with the three opposing candidates mentioned in the statement of the case, were the candidates for'the offices of aldermen, there being three aldermen to be elected, and that the Inspectors refused to canvass these ballots because they did not also have on them the name of the office voted for.

The allegations of the information showing that the relator received a majority of votes over the defendant, assuming the rejected ballots to be legal, as well as other averments to be found in the statement of the case need not be repeated here. ' The general election law of June 4, 1889,

Chapter 3879, of statutes, requires that ballots used at elections for specified State and county officers, Members of the Legislature, Representatives in Congress and Presidential Electors, shall be of plain white paper and of dimensions which are the same as those specified in the above town ordinance, and contain both the name of “ the person or persons voted for as such officers and the office for which they are voted,” and also provides for a separate ballot box for each office, thq box to be “ labelled in plain and distinct Roman letters or in a plainly written handwriting, with the office or officers therein to be voted for.” Sections 25 and 26.

It is contended that the absence of the office from the ballots alleged to have been rejected by the Inspectors in canvassing the vote, rendered them illegal. This act does not, nor does any other, provide that the ballot in smunicipal elections shall be of the same form and contents as those prescribed by it for State and county elections. The Constitution provides,

Section 6,

Article VI, that in all elections by the people the vote shall be by ballot, and in those by the Legislature it shall be viva voce. The material guarantee of this constitutional mandate of vote by ballot is inviolable . secresy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in a position to know for whom he has voted, or shall know unless the voter shall of his own free will inform him. Cooley’s Constitutional Limitations, m. p. 604, et seq.

Whereas we are satisfied that the above constitutional guaranty that all elections by the people shall be by ballot is binding upon municipal governments and controls in popular municipal elections, we are also confident, in the absence of any express provision of law requiring the same form of ballot to be used in municipal elections as is prescribed by the act of 1889 for the elections which the act regulates, that the ballots cast in accordance with the town ordinance of Daytona and under the circumstances detailed in the information and admitted by the defendant’s motion, were not nullities, and should not have been rejected.

The above regulation of that ordinance did not of itself violate the constitutional principle of secresy nor deprive the electors of the free exercise of their franchise, nor did it contravene the statute, as the latter does not regulate municipal elections.

Understanding, as the electors did, the regulations, and putting their ballots in the box designated, as it was, as the proper and authorized receptacle of votes for “ aldermen,” or “ councilmen ”— it matters not which—the ballots so lodged in the box became identified with it and the designation of the box became to all intents and purposes a part of the ballot, and with it distinct evidence of the voter’s will as to the person voted for and the office, without the necessity of resorting to parol or other testimony to ascertain his intention; and clearly under this ordinance the ballots found in that box were to be as conclusively regarded by the Inspectors as cast for councilmen or aldermen as if the designation or title of the office had been fully expressed upon their face.

There was, under the facts set up in the information, no excuse or justification for their rejection by the Inspectors, and in rejecting them, those officers defeated the will of the majority of the electors of Daytona, if the facts stated in this information be true, as they must be conclusively assumed to be on this motion. The cardinal rule is to give effect to the intention of the voter whenever it is not left in uncertainty, and there being no such uncertainty, we find the facts before us no basis for justifying a rejection of these ballots. V.

The affidavit to the information states that the relator knows the contents of the information, and that it is true except as to matters alleged therein on information and belief, and that as to those matters he believes them to be true. There are no allegations upon information and belief, and the affidavit is consequently altogether positive. A deposit to cover costs has been made with the Clerk in this "case, and assuming that any security for the payment of costs can be required where proceedings are instituted as here, under the provisions of

Section 2 of the act of February 2, 1872, p. 346, McClellan’s Digest, we think the deposit is a sufficient character of security. If the filing of an' information under this

section by a private relator is addressed to the sound discretion of the court, we, to say the least, do not think the facts stated in this information, and, thus far, admitted by the defendant, show an improper exercise of discretion, The motion is denied, with leave to defendant to answef by Friday, the 13th instant, at 10 o’clock, a. m, Raney, C. J. The respondent has, since the order denying the motion to quash, filed pleas to the information, and relator has demurred to them^as insufficient in law.

The first plea is a former judgment against relator in the same matter between the same parties in the Circuit Court of the Seventh Judicial Circuit. These proceedings are as follows: An information filed September 26, 1889; motion to quash the same made October 21st, and order denying motion October 28th;' demurrer to information on same day and order made November 13th sustaining demurrer and allowing relator to amend, which amendment was filed on the 16th day of the same month, and demurred to by defendant .on the 19th thereof.

This demurrer was overruled on December 17th, and relator allowed till January Rule day, 1890, to amend the information.

On the sixth day of this month, which was the rule day, defendant moved for judgment on account of failure of relator to amend, and on same day relator filed an amendment, which, on the same day, the defendent moved should be “stricken out” on stated grounds, and “for judgment on defendant’s demurrer;” and on the 18th day of February the following order was made: “Upon argument this day the above motion is granted, except in so far as judgment on demurrer at this time, and relator is allowed on request until the rule day in March, A.

D. 1890, to amend.” On the first day of April, 1890, the following order was made : “On motion of relator’s attorneys this cause is dismissed without prejudice to further action in another proceeding, and leave is given to withdraw the information.” It is apparent from the above statement that no final judgment on any of the demurrers, (Gates vs. Hayner, 22 Fla., 325,) or other final judgment on the merits of the case was rendered by the Circuit Court.

There were, it is true, rulings on demurrers, but up to the dismissal of the case these rulings remained in the breast of the court, and were interlocutory, and the dismissal is no more nor less than an order of non-suit made on motion of the plaintiff, before any final judgment had been entered. The correctness of this order cannot be reviewed in this proceeding.

We must look to the record of the Circuit Court, as presented here, to ascertain the nature of its judgment, and from it we discover that there has been no final judgmént on the merits of the cause, but in effect nothing but a non-suit, or discontinuance of the action, leaving the relator at liberty to sue again for the same cause. The above conclusions are sustained by the following authorities: Freeman on Judgments,. Sec. 251; Baugh vs. Baugh, 4 Bibb, 556; Well’s Rcs Adjudicata and Stare Decisis, Sec. 14; Herman on Estoppel, Sec. 99; Audubon vs. Excelsior Insurance Co.—27 N. Y., 216; Haws vs. Tierman, 53 Penn.

St., 192; Haldeman vs. U. S., 91 U. S., 584; Homer vs. Brown, 16 Howard, 354.

We do not mean to say that there may not be a final judgment upon the merits entered upon demurrer to a complaint, or that when there has been such an entry in proper form, it will not operate as a bar to a subsequent action on a substantially similar complaint, (Freeman on Judgments, Sec. 267,) but the fact is that in the case before us no such final judgment upon the merits is shown to have been entered by the Circuit Court; and there is nothing in any of the authorities cited by counsel for defendant that conflicts with the conclusion we have reached in this case. It is not necessary to review them.

Cases like that of Elwell vs. McQueen, 10 Johnson, 520, in which it was held that a justice of the peace had under the circumstances no power to enter a non-suit, and his judgment, in form one of non-suit, was treated, as a final judgment on the merits, he having heard the proofs, have no application to a court like the Circuit Court of this State. Freeman on Judgments, Sec. 251. Another plea is one of prior adjudication by the Town Council of Daytona, under

Section 15, p. 248, McClellan’s Digest, giving it power to judge of the election returns and qualifications, of its own members. Waiving the question of the effect of an investigation into the real merits of the question who received a majority of the legal votes actually cast at the polls, and a decision thereon by a town council under this statute, as a bar to a subsequent proceeding by qiLo warranto when both claimants have been parties to such a contest before the council, we are satisfied that the plea does not show that the relator was a party to the proceedings in this case.

The mere allegation that he was present when the council took action, and did not protest, object or dissent from the action or decision of the council, is not sufficient to show that he was a party to the proceeding. There is another plea, the purpose of which is evidently to show that defendant received a majority of the legal votes, but it is entirely insufficient. We have decided that the ballots cast in accordance with the ordinance were legal, and it is not necessary to say anything more on this subject.

A denial “that any such number as one hundred and three” of these ballots, or pieces of white paper, as the answer calls them, were cast as alleged for relator, is not a denial that relator received more legal votes than defendant did, nor an allegation that he did not receive one hundred and two or any other number in excess of the sixty-seven votes which defendant alleges he received. It is a negative pregnant which is condemned by all works on pleading. Gould’s Pleading,

Chapter 6,

Section 29, et seq. Denials that the relator received a majority of the votes cast at the election, and allegations that the defendant was duly and legally elected, or that he received a majority of the legal votes, are mere conclusions of law. Facts must be averred showing that he was elected in the manner prescribed by law. State ex rel. vs. Day, 14 Fla., 9. The. pleadings before us show that the relator received a majority of the legal votes cast at the election.

The remaining plea, in so far as its averments do not fall under what has been said above, is that the defendant is not guilty, and does not usurp the office in question. In State ex rel. vs. Saxon, 24 Fla., 342, where the information was filed by the Attorney-General on relation of a claimant of the office, it was held that the plea of non usnrpavil was not a good plea. The rule in such cases is that the respondent is required to show his title to the office. High, on Extraordinary Legal Remedies, Sec. 712.

Under the statute, McClellan’s Digest, Sec. 2, p. 846, if the Attorney-General refuses to file a complaint setting forth the name of the person claiming an office, as the person rightfully entitled to it, such person may file an information or institute an action in the name of the State against the person exercising the office, and set up his own claim.

Although this act contemplates that the claimant shall in his information, filed in the name of the State, set up his own claim, we do not think it has changed the rule of the defendant’s pleading to the extent, if at all, of making a plea of not guilty or non usurpavit admissible. It is still the duty of the defendant in possession of the office to set up the facts showing his election or appointment, and that he is qualified to hold it, or, in other words, his title to' the office.

The fact that relator may be found not entitled to the office will not authorize the defendant to hold it if he is not entitled to it. No person, says the same

section of the statute, shall be adjudged entitled to hold an office except upon full proof of his title to it. The pleas being each insufficient in law, the demurrer must be sustained.