William B. Pickett, as Tax Assessor, in and for Duval County, Appellant, vs. G. W. Russell Appellee, 42 Fla. 116

Carter, J. (After stating the facts.) Sections 10 and 11,

Article XII, constitution of 1885 read as follows:

Section id. “The legislature may provide for the division of any county or counties into convenient school districts; and for the election biennially of three school trustees, who shall hold their office for two years and who shall have the supervision of all the schools within the district; and for the levying and collection of a district school tax for the exclusive use of public free schools within the district whenever a majority of the qualified electors thereof that pay a tax on real or personal property shall vote in favor of such levy; Provided, that any tax authorized by this

section shall not exceed three mills on the dollar in any one year on the taxable property of the district.”

Section 11. “Any incorporated town or city may constitute a school district. The fund raised by

section ten may be expended in the district where levied for building or repairing school houses, for the purchases of school libraries and text-books, for salaries of teachers or for other educational purposes, so that the distribution among all the schools of the district be equitable”’

Chapter 4336, approved May 20, 1895, so far as applicable to this case, provides as follows:

Section 1. That an election may be held in any city under the order and direction of the board of public instruction of the county, upon the petition of one-fourth of the registered and qualified voters of such city, who are taxpayers on real or personal property therein, to determine whether such city shall be a school sub-district and for the election of three trustees therefor, and to determine' the mileage to be assessed and collected annually during the succeeding two years. Such election shall be held and the result declared as nearly as practicable in the same manner as is provided by law for the holding of elections concerning

Article XIX of the constitution, substituting the board of public instruction for the county commissioners. It shall require a majority of the votes of those voting at any such election to determine any matter in the affirmative.

At an election to decide whether such sub-district shall be formed, three school trustees shall be elected to serve as such should a majority of the electors vote for and create such sub-district, ai d on the same day biennially thereafter and at each of such elections the mileage to be assessed and collected annually during the succeeding two years for school purposes in such sub-district shall be determined by a majority vote of the qualified electors as herein provided.

Notice of holding any such election to determine whether such city shall be made a school sub-district or for the election of school trustees shall be made by the board of public instruction by publishing a notice, etc.

Section 2. All voters in such election for sub-districts or. trustees shall have the qualifications specified in

section 1 for petitioners for elections to establish sub-districts.

Section 4 requires the trustees, on or before the last Monday in July each year, to prepare an itemized estimate showing the amount of money required for necessary common school purposes of their sub-districts for the next ensuing' scholastic year, stating the rate of millage to be assessed and collected upon the taxable property of their sub-district to cover such amount, not to exceed three mills on the dollar; provides that a copy of such estimate be filed with the clerk of the board of county commissioners, and requires that board to direct the assessor of taxes to assess and collector to collect the amount so stated, the moneys so collected to be paid over to the trustees.

Section 6 provides that trustees of such districts shall be corporations with the usual powers for the purpose of performing their duties; and

section seven directs the disposition of moneys assessed and collected as provided by the act. As will be seen by reading the bill filed in this case, the object is to prevent the assessment and collection of a special tax levied in pursuance of the result of an election held under the constitutional and statutory provisions above mentioned and other statutory provisisions hereinafter referred to. 1.

It is contended by appellant that the bill seeks to try the right of Sawyer, Cooper and Hodgson to the office of school trustees and the right of the territory included within the city of Jacksonville to exercise the powers incident to school sub-districts, and that equity has no jurisdiction to entertain a bill for these purposes. We do not think the bill subject to the construction contended for. 'The relief prayed is an injunction against the assessment and collection of a tax levied, but alleged to be unauthorized.

The legislature can authorize this tax to be levied and collected only when a majority of the qualified electors of the school district that pay a tax on real or personal property shall vote in favor of such levy. Proceedings for the levy, assessment and collection of the tax will cast a cloud over the title to the complainant’s real estate sought to be subjected to the tax. Under these circumstances equity has jitrisdiction to enjoin the assessment and collection of the tax if illegal, and to inquire into the validity of the election in so far as the authority to levy and collect the tax is derived therefrom.

Smith v. Longe, 20 Fla. 697, text 699; Wilson v. Lambert, 168 U. S. 611, 18 Sup. Ct. Rep. 217. See also, Lanier v. Padgett, 18 Fla. 842. II. It is also contended that under

section 8,

Article IX constitution of 1885, which provides that “no person or corporation shall be relieved by any court from the payment of any tax that may be illegal, or illegally or irregularly assessed until he or it shall have paid such portion of his or its taxes as may be legal, and legally and regularly assessed,” the bill ought to have alleged that complainant had paid all taxes legally assessed against him for the year in which the levy of this special tax was made, and that without such allegation there is no equity in the bill.

It does not appear that any other tax was in fact assessed against complainant’s property during the year 1899, or at the time of filing the bill, though it is quite probable that the assessment roll for State and county taxes of that year was then being made up. We do not understand that the constitutional provision requires payment of taxes legally assessed as a pre-requisite to beginning proceedings for relief against illegal taxes, but that such payment must be made before the applicant is relieved from the illegal tax, and such seems to have been the construction placed upon it in Town of Kissimmee City v.

Cannon, 26 Fla. 3, 7 South. Rep. 523, and City of Tampa v. Mugge, 40 Fla. 326, 24 South. Rep. 489. If in fact any tax was due by complainant which it was his duty to pay before obtaining the relief sought by this bill, it does not appear upon the face of the bill, nor does it otherwise appear in the proceedings before us. If such was the fact the defendant would have a right to make it so appear to the court, and jin that event the court should give complainant an opportunity to pay the tax legally assessed and dismiss the bill for failure to do so. III.

It is contended lhat the trustees of the school district, for whose benefit the tax sought to be enjoined was levied, ought to be made parties defendant. The. statute constitutes these trustees a corporation with the usual powers for the purpose of performing their duties. This includes the power to sue and be sued in all proper cases, and as the school district is directly interested in the collection of the tax sought to be enjoined, we think its proper representatives, the trustees, ought to have been made parties defendant.

The mere failure to make the trustees parties would not necessarily under the circumstances of this case require us to dissolve the temporary injunction granted against the assessor (Fairchild v. House, 18 Fla. 770; Morgan v. Rose, 22 N. J. Eq. 583), hence we’proceed to- consider other questions presented by the pleadings. IV. We shall consider the grounds upon which it is claimed that the election was void, in the order mentioned in the hill. 1st.

If it be the law as claimed by the appellee that in elections of this character the voter must be left free to vote for any rate he chooses not to exceed three mills, as a special tax in school districts, as to which we find it unnecessary to express an opinion, we see nothing in the form of the official ballot prescribed in this case that confined the voters to voting for or against a three mill levy. They might have changed the word three to any other rate desired, or they might have used the blank spaces or lines for expressing choice for a different rate.

The answer alleges and it is not denied that facilities for marking and writing on' ballots were provided at each polling place. It is not alleged, nor does the proof show, that any voter at the election desired to vote for any rate other than that printed on the official ballot, or was as a matter of fact denied the right to do so.

Even if the statutes regulating the election undertook to deny a voter the right to vote for a rate different from that printed on the ballot, and such provision was unconstitutional, in the absence of allegations and proof that the result of the election would have been different but for such unconstitutional provision, we would not be justified in holding the election void. State ex rel. Attorney-General v. Dillon, 32 Fla. 545, 14 South. Rep. 383. 2nd. Neither

Chapter 4336, acts of 1895, nor the legislation regulating elections concerning

Article XIX, to which it refers, nor the laws regulating general and special elections to which the latter refers, provide for registration of qualified electors who are taxpayers upon real or personal property. Nor did the laws provid-' ing for and regulating the registration of qualified electors in force at the time this election was held, authorize the books to be opened for registration for special elections, but only for general elections. It is true that

Chapter 4336, act of 1895, authorizes only “registered and qualified voters” who' are taxpayers on real or personal property in the city to vote at elections of this character. This refers to registration in the county registration books.

It is also true that the bill alleges that the county 'books were not opened for registration for this special election, but it is nowhere denied that they were duly opened for registration for the general election held in the fall of 1898, and it is not alleged or proved that there were persons not registered but qualified to register, who were taxpayers upon real or personal property within the proposed district (except perhaps one person, Kappher), or that the result of the election could or would have been different, if the books had been opened for registration for this special election.

In the absence of such a showing the election held must stand as against this objection, and we do not feel called upon to' determine whether the legislature has power to direct the closing of registration books from a period just prior to one general election to a period just prior to the next succeeding general election, and to forbid any person not registered from voting at a special election held in the meantime. 3rd.

It is not claimed that the lists of registered qualified electors furnished the inspectors at the various precincts were incorrect, or that they did not correspond precisely with the original registration books in the office of the supervisor. While it may have been irregular to furnish these lists, instead of the original registration books or copies applicable to the voting precincts included within the territory proposed as a school district, this irregularity did not and could not have affected the result of the election.

It is also alleged that no person whose name was not on the lists furnished the inspectors, or whose name was checked by the county superintendent as persons who did not appear' by the city tax books to be taxpayers upon real or personal property in the city, were allowed to vote; but it is not alleged that a sufficient number to change the result were under the circumstances denied the right to vote. The election can not, therefore, be set aside on these grounds. 4th and 9th.

Without deciding whether all of the twenty-seven persons “and many others” whose votes it is alleged were rejected were in fact entitled tO' vote at the election, but assuming that they were, we do not think the matters here complained of are sufficient to avoid the 'election. It is neither alleged nor proved that either of these persons would have voted against the tax but for aug-ht that appears all of them may have voted for it.

It is not claimed that any of these votes were fraudulently rejected; on the contrary, the evidence shows that the votes were rejected either because the parties did not appear by the city tax books to be taxpayers upon property within the city, or because they did not appear to have paid the requisite pell taxes to entitle them to vote, except two who did not offer to vote at all.

It is shown by the evidence that the inspectors at the various precincts offered to permit every person whose name was upon the registration lists to vote upon proof that they were taxpayers upon real or personal property and that no such proof was offered by those whose votes were rejected upon challenges for such cause. The rejection of votes from legal voters not brought about by fraud and not of such magnitude as to demonstrate that a free expression of the popular will has been suppressed is not sufficient to avoid an election, unless it be shown that the votes rejected would have changed the result.

People v. Cicott, 16 Mich. 283, S. C. 97 Am. Dec. 141, opinion by COOLEY, J. AVhether if it had been alleged that enough of these votes to overcome the majority for thfe tax, would have been cast against the tax if the persons offering them had been permitted to vote, the rule would be different we do not now determine. 5th and 6th. It appears that only one person lost his vote by reason of the delay of less than an hour in opening the polls of the fourth ward. It is not alleged or proved that this person would have voted against the tax and even if he had his vote would not have changed the result.

The delay in opening the polls is shown to have occurred by reason of the necessity for selecting and organizing a new board of inspectors, those originally appointed having failed to appear at the hour appointed by law for opening the polls. The new board was recognized by the electors as election officers, they acted in that capacity and made returns of the election that were duly convassed. They were, to say the least, officers de facto, and the election cannot be declared void for "a mere irregularity in the manner of their appointment. State ex rel. Bisbee v.

Board of County Canvassers of Alachua County, 17 Fla. 9; McCrary on Elections, §251; Meacham on Public Officers, §184. 7th.

Chapter 4336, acts 1895, requires that elections like the one under discussion shall be held and the result declared as nearly as practicable in the same manner as is provided by law for the holding of elections concerning

Article XIX of the constitution, substituting the board of public instruction for the county commissioners. By

section 861 Rev. Stats. inspectors at elections held concerning

Article XIX of the constitution are required to canvass the votes cast and to make due returns of the same to the county commissioners, and the county commissioners are required to canvass the returns and declare the result. Substituting the board of public instruction for the county commissioners, as required by

Chapter 4336, acts 1895, it is evident that the returns of this election were properly made to the board of public instruction of Duval county, and that it had authority to canvass them and declare the result. The answer alleges and the proof shows that this was done and the legal effect of such canvass can not be changed by the fact that returns were made to another unauthorized board who also proceeded to canvass them. 8th.

The allegation that many votes cast against the special tax were rejected because the voter made his mark on the right hand side of the official ballot instead of the left, even if it be conceded that ballots so marked were improperly rejected, is insufficient to avoid the election in the absence of a further allegation that they were rejected fraudulently or that enough ballots of that character were rejected to have changed the result. State ex rel. McClenny v. County Commissioners of Baker County, 22 Fla. 29. There is no evidence whatever upon this subject. 10th.

The answer denies the allegation that no petition signed by one-fourth of the registered and qualified electors of the city who were taxpayers on property therein was presented to the board of public instruction, and the evidence shows affirmatively that a petition signed by more than the required number of persons qualified to sign it was presented to the board of public instruction as a basis for calling the election.

This disposes of the several matters alleged in the bill as grounds for holding the election void, but there are twO' other grounds specially argued by counsel for appellee which we think properly arise upon the facts alleged in the bill. V.

It is said that because the legislature has failed to provide, a method, by registration or otherwise, of ascertaining who are the qualified électórs of the district paying taxes on real or personal property and therefore entitled to vote at the election, no election can lawfully be held, although the legislature has expressly authorized such election and made provision for conducting same, canvassing returns and declaring the result. Neither the constitution nor the statutes provide for a registration of those entitled to vote at an election of this character.

It is not claimed that any person voted at the election who’ did not possess all the qualifications imposed by the constitution. If it be that the election officers are not empowered to determine who are and who are not qualified electors paying taxes on real or personal property in the district, the courts possess ample power upon proper proceedings to test the validity of the election, to inquire into the qualifications of those who voted or offered to vote.

We do not deem it essential to the validity of an election that there should be a previous registration of those entitled to vote thereat, where not required by law. State ex rel. Smith v. Burbridge, 24 Fla. 112, text 136, 3 South. Rep. 869. VI. It is also contended, and the parties state that the court below so held, that so much of

Chapter 4336 as provides that it shall require a majority of the votes of those voting at the election to determine any matter in the affirmative is, when applied to an election to' determine whether a special school tax may be levied, in conflict with the clause in

section xo,

Article XII of the constitution, which authorizes the legislature to provide for levying and collecting a district school tax “whenever a majority of the qualified electors thereof that pay a tax on real or personal .property shall vote in favor of such levy.” The contention is that the constitution requires the affirmative vote of a majority of the total number of qualified electors of the district that pay a tax on real or personal property, to authorize the levy.

If this contention is correct, the election held in this tase is void, for it is shown by the bill and not denied by the answer that there were at the date of the election a number of qualified electors, taxpayers on property within the city in excess of the majority announced for the tax. There are a number of authorities sustaining this construction and the principal arguments in its favor may be obtained from the opinions in the cases of Chester and Lenoir Narrow Guage R. R. Co. v. Commissioners of Caldwell Co. 72 N. C. 486; Hawkins v. Board of Supervisors of Carroll Co. 50 Miss. 735; State ex rel. Woodson v.

Brassfield, 67 Mo. 331. The weight of authority, however, sustains the view that under constitutional or statutory provisions substantially like the language of our constitution it requires only a majority of the votes of those taxpaying qualified electors who vote at the election to carry the proposition. State ex rel. Lanier v. Padgett, 19 Fla. 518, text 539, 540; Taylor v. Taylor, 10 Minn. 107; Vance v. Austell, 45 Ark. 400; Taylor v. McFadden, 84 Iowa, 262, 50 N. W. Rep. 1070; Citizens and Taxpayers of DeSoto Parish v. Williams, 49 La. Ann. 422, 21 South. Rep. 647; St. Joseph Township v.

Rogers, 16 Wall. 644; County of Cass v. Johnston, 95 U. S. 360; Douglass v. County of Pike, 101 U. S. 677; Carrol County v. Smith, 111 U. S. 556, 4 Sup. Ct. Rep. 539; Knox County v. Ninth Nat. Bank, 147 U. S. 91, 13 Sup. Ct. Rep. 267; McCrary on Elections, §208; 10 Am. & Eng. Ency. Law (2nd Ed.), 754.

Our constitution by requiring as a pre-requisite to the levy of a district school tax that a majority of the qualified electors thereof that pay a tax on real or personal property shall vote in favor of such levy, evidently contemplates that the question is to be submited at an election and it neither provides nor directs the legislature to provide for ascertaining the precise number of qualified electors authorized to vote at said election as a basis for estimating the majority required.

The rule at common law is that where the electoral body is indefinite, the majority is estimated upon the basis of the total number of votes cast, and not upon the basis of the number of votes which might lawfully have been cast if the persons entitled to vote had chosen to attend and vote. This general rule is expressly recognized in various other clauses of the constitution, as will be seen by reference to provisions fofind in

Article XXII, sections 1 and 2;

Article XIX,

section 1; Ordinance No. 1, and Ordinance No. 11,

section 2. If it had been intended to imperatively require a different rule by the provision under consideration, and to repeal the common law rule upon the subject it is reasonable to suppose that the constitution would have made provision for ascertaining the precise number of the electoral body or required the legislature to do so, as a basis for estimating the majority.

While other provisions of the constitution require the legislature to provide for the registration of all the legally qualified voters in each county, there is no requirement for registration of qualified electors who pay taxes on real or personal property. The provision of the constitution under consideration either means to leave the common law rule above stated in force or to leave it to- the legislature to- provide some method of ascertaining the whole number, the “majority” of which is required.

In either event the requisite majority must in this case be ascertained by reference to the total vote cast at the election, for the common law rule and the statutes regulating this election both require it to be ascertained in that manlier. For discussion of a somewhat similar question, see the opinion of Brewer, J., in County Seat of Linn County, 15 Kan. 500. While we do not mean to approve all that was said in that opinion, yet the discussion, read in connection with the other cases cited in this opinion, adds force to the view we express upon the question.

We are of opinion that the court err-ed in refusing to dissolve the injunction. This conclusion renders it immaterial to determine whether the injunction was properly granted in the first instance. The order refusing to dissolve the injunction is reversed, the temporary injunction is dissolved, and the cause remanded for further proceedings. [A dissenting opinion was filed by Taylor, C. J., and will be found reported on page 634.]