The State of Florida ex rel. Joseph H. Spafford, Plaintiff, vs. S. J. Kennerly, Defendant, 26 Fla. 608

Raney, C. J. This is an information under the second

section of the quo warranto Act of 1872, which provides that any person claiming title to an office exercised by another shall have the right, upon the refusal of 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 an information setting forth such person’s name as the person rightfully entitled to the office, to file an information or institute an action in the name ol the State against the person exercising the office, setting up his own claim.

The Court is authorized and required to determine the right of the claimant to the office if he so desires, but he is not to-be adjudged entitled to it except upon full proof of his title. In all such cases the judgment is .conclusive between the parties other than the State, but does riot bar a subsequent quo warranto proceeding by the State.

The Attorney-General having refused to act in the premises, Spafford filed an information in the name of the State upon his own relation, alleging that the, defendant has for twenty days past, in the city of Palatka, in this State, unlawfully usurped and exercised the office of alderman for the long term for Ward No. 4 in that city, and still does usurp the same. That on the first day of April, 1890, a city election was held, and that upon one of the tickets the candidates for aldermen were the defendant and one Marcus Loeb, and upon the other ticket the relator and. F. C. Cockrane were the candidates.

That upon the opening of the polls, the inspectors unlawfully adopted a rule not to allow any relator to vote unless he could exhibit his poll tax receipt for the }mar 1889, and after five ballots had been deposited in the box, one H. L. Miller, a duly qualified elector, offered his ballot, but his vote was challenged, and he was not allowed to vote because he could not exhibit his poll tax receipt.

That upon the fact being made known that the payment ot the poll tax was'held by the inspectors to be a prerequisite to voting, nineteen electors, all of whom would have voted for the relator, refrained from offering their ballots, because their votes would have been excluded by the enforcement of said rule.

That when the ballots were counted, the result of the election was sixteen votes for respondent, and fifteen for Loeb, three for relator, and two for Cockrane; whereas, if the nineteen electors referred to above, and whose votes it is here alleged, were wrongfully excluded, had been allowed to cast their ballots, the result would have been twenty-two votes for Spafford, nineteen for Loeb, seventeen for Cockrane, and sixteen for defendant.

That the Collector of Revenue had not furnished to the Supervisor of Registration of Putnam county any lists of the names of the persons who had paid their poll taxes, nor had such Supervisor made any note on the registration book furnished to the inspectors as to who had or had not paid a poll tax as required by “An act to provide for the payment of a capitation or poll tax as a prerequisite for voting, and prescribing the duties of Tax Collectors and Supervisors of Registration in relation thereto,” approved May 25th, 1889, and that none of the electors who were allowed to vote were so noted as to the payment of the poll tax.

That upon the returns, as hereinbefore stated, the respondent was upon a contest adjudged by the City Council of Palatka to be entitled to be seated as alderman for Ward No. 4, and was inducted into the said office. That the relator is and was on the first day of April, 1890, a qualified elector in the mentioned ward; and concluding with prayer for process to make defendant answer to the people by what warrant he claims to hold and execute the office. Each ward of the city, it may be remarked, is entitled to two aldermen. To this information the defendant has demurred upon grounds testing its substantial merits.

The quo warranto statute of 1872, permits one claiming an office to institute the proceeding in the name of the State upon his own relation where the Attorney-General refuses to institute it upon such claimant’s relation. Where the Attorney-General has instituted a proceeding under the first

section of the same act, to which proceeding that

section contemplates he shall make “ all the persons claiming the title to the office parties,” and has failed to make one or more of them party or parties, the omitted claimant may, under the section, be made a party upon petition setting forth “ under oath a prima facie case of right and title to the officebut where the Attorney-General has taken no action under this section, and has also refused to institute the proceeding contemplated by the second section, then it is that the claimant to the office is given the right to file an information in the name of the State, “ setting up his own claim.” The purpose of this second

section was not to vest any and every one with the official powers and" duties of the Attorney-General upon a refusal of that officer to institute quo warranto proceedings against the incumbent of an office, but it was to secure any person honestly claiming an office, the right to go into the courts for the purpose of ascertaining that right, upon refusal of the Attorney-General to act in his behalf. The language, “setting up his own claim,” used in the second section, means the same as setting forth a prima facie case of right and title to office, to be found in the first section. The first

section entitles no person to be made a party to a proceeding instituted by the Attorney-General, unless he makes such a prima facit showing, nor does the second

section extend the right and form of action it provides to any one who does not make the same showing. Both sections were intended to provide a remedy in favor of persons claiming to be entitled to offices, and no others are within their spirit or terms, and no one not showing a prima facie case of right and title to 'an office, can successfully invoke their aid. Commonwealth vs. Cluly, 56 Penn. St., 270; State vs. Boal, 46 Mo., 528; Stone vs. Wetmore, 44 Ga., 495.

This being the purpose and meaning of the statute, the inquiry necessarily is whether or not the information shows that the relator is entitled to the office in question. If he is not, the proceeding cannot be maintained. Assuming that the action of the inspectors in adopting the mentioned rule, or test of a legal voter, and in rejecting the ballot of Miller, was illegal, the fact still is that the relator is not entitled to the office because only three votes were cast in his favor, whereas sixteen were cast for Kennerly.

The three votes cast for relator, considered either in connection with or separately from the offer of Miller to vote, and the assumed right of the questioned nineteen electors, do not entitle the relator to the office. Admitting the showing made to be true, or assuming that, upon issue joined, it had been proved, it is evident there could be no judgment for relator. He has made no prima facie showing of a right to the office, and • this being so, he cannot call upon the defendant to answer the State as to his own title.

The same ponclusion as to the relator’s right to the office follows, if we assume either that the action of the inspectors was legal, or if, on the other hand, it be that none of the alleged electors, including those whose ballots were received and counted, Miller whose offer to vote was rejected, and those who refrained from voting, were legal voters. The demurrer will be sustained, with leave, however, to relator to amend within fifteen days.-