Barton v. State

43 Fla. 477

Opinions

Taylor, C. J.

The plaintiff in error, on information filed by the State Attorney, was tried and convicted in the Circuit Court of Hamilton county, at its. Spring term, 1901, of t)he crime of illegally selling liquors in' said county in violation of prohibition alleged to have been established in such county by an election there held on September 6th, 3898, and from the money fine imposed sued out this writ of error.

The assignments of error are as follows: 1st. The court erred in allowing the certified copy of the original canvass read in evidence. 2nd. The court erred in allowing the certified copy of the original canvass read in evidence, before hearing evidence as to the validity of the election-. 3rd. The court erred in sustaining the objections of the State Attorney to the following question propounded by the defendant’s attorneys to the witness I. J. McCall, to-wit: “As such Clerk are you in custody of any record, or is there any record showing that: notice of this local option election that was held in Hamilton county September 6th, 1898, was ever published by the clerk of the Circuit Court for the term of thirty days in any news-paper published in, said county?” 4th. The court erred, in sustaining the objections made by the State Attorney to the following question propounded by defendant’s attorneys to the witness I. J. McCall, to-wit: “Was there any notice given by the county commissioners or the clerk to the supervisor of registration or to the various district deputy registration officers, or to the tax collector as to the holding of said election?” 5th. The court erred in sustaining the objection made by- the State Attorney to the following question propounded by the defendant’s attorneys to the witness I. J. McCall, to-wit: “Did the county commissioners of Hamilton county revise' the registration list of this county fifteen days before the holding of this election, and were the names so stricken from the registration list by the county commissioners and supervisor of registration, published alphabetically by the districts?” 6th. The court erred in ruling that the publication of the name of inspectors and clerks of this eletcion was sufficient. 7th. The court erred in overruling the defendant’s objections to the validity of this election. 8th. The court erred in overruling the defendant’s attack upon the said election. 9th. The court erred in ruling that the preparation of the ballots, cards of instruction to voter's and the sending out the ballot boxes was a compliance with the law.' 10th. The court erred in ruling that it was discretionary with the board of county commissioners as to whether or not they would require the registration books to be kept open for registration for this election, nth. The court erred in overruling defendant’s objections to. the following question propounded by the State Attorney to the witness T. J. McCall, to-wit: “How many ballots were there that came from the sixth district as being polled?” 12th. The court erred in sustaining the objection made by the State Attorney to the following question propounded by . the defendant to. the witness I. J. McCall, to-wit: “What do you know, if anything, about persons voting, in that election who were not shown by the registration books to have paid their poll taxes as a prerequisite to. voting?” 13th. The court erred in sustaining the objections made by the State Attorney to the following question propounded by tire defendant to witness I. J. McCall, to-wit: “What stand, did you and Col. Roberson take in that election?” 14th The court erred in sustaining the objection made by the State Attorney to the following question propounded by the defendant to the witness Levi Lee, to-wit: “There was difference enough in the size of these tickets that you could have directed some one how to have voted by the size of the tickets, was there?” 15th. The court erred in overruling defendant’s objection to the following question propounded by the State Attorney to the witness D. M. Deas, to-wit: “Mr. Deas, how many votes were polled on that day in that election?” 16th. The court erred in overruling the defendant’s objections to the following question propounded by the State Attorney to the witness D. M. Deas, to-wit: “Mr. Deas, take this paper in your hand and say how many votes were polled in that district on that day?” 17th. The court erred in overruling defendant’s objections to the following question propounded by the State Attorney to the witness G. H. McCullers, to-wit : “Will you please explain what that means, those four straight marks?” 18th. The court erred in overruling the defendant’s motion to strike out and withdraw from the evidence the certified copy of the record of the result of the canvass of the local option election held in Hamilton county on the 6th day of September, 1898, as made by the board of county commissioners of said county, upon thé grounds set out in said motion. 19th. The court erred in overruling defendant’s motion for a new trial. 20th. The court erred in holding and finding that .said local option election was conducted in the manner prescribed by law for holding general elections. 21st. The court erred in finding the defendant guilty.

The first, second and eighteenth assignments of error all relate to the admission in evidence of a certified copy made by the Circuit Clerk of the record of the result of the election held to determine whether the sale of liquors in said county should be prohibited therein, transcribed from the minutes of the board of county commissioners where the same was recorded. Under these assignments it is contended that the returns of this prohibition eléction should have been made to the county canvassing board established by law for canvassing the result of general elections, and not to the board of county commissioners, and that any canvass of the returns of such election made by the latter was unauthorized and void, and any declaration of the result of such election made by them was likewise unauthorized and void, and that, consequently, a certified espy of the record of the result of such election as made by them was impertinent and furnished no evidence of the calling, holding, or result of such election. That these positions are untenable, we need only to quote the following provisions of our statutes : Section 861 Revised Statutes, treating of prohibition elections, reads as follows: “Inspectors of election shall be appointed and qualified as in cases of general elections, and they shall canvass the vote cast and make due returns of the same to the county commissioners without delay. The county commissioners shall canvass the returns and declare the result, and cause the same to' be recorded as provided in the general law concerning elections, as far as applicable.” Section 1 of Chapter 4552 laws, act of 1897, is as follows: “In all prosecutions by the State for the unlawful sale of intoxicating liquors, wines or beer contrary to prohibition regulations, the introduction of a copy of the record of the result of the canvass of the returns of the election as made by the county canvassing board and recorded in the minutes- of the proceedings of . the board of county commissioners, duly certified to by the clerk of the Circuit Court for such county in which an election shall have been held, shall be taken as prima facie evidence that said election was legally called, conducted and holden.” Under the familiar maxim that statutes in pari materia should be construed together, we interpret the words “county canvassing board,” as used in the last above quoted statute, as having reference to the board provided by the above quoted section 861. of the Revised Statutes whose duty it is made to canvass and declare the result of such elections, and that is the board of county commissioners. The correctness of this construction is made clearer- from the further fact that in the last above quoted section of Chapter 4.552, in making provision for a certified copy of the result of the canvass to be evidence, it requires such copy to be taken from the records made of it in the minutes of the board of county commisioners. There was no> error in admitting such copy in evidence in this case, nor in the ruling refusing to< strike it out.

All of the other assignments of error, except the nineteenth, twentieth and twenty-first, consist of rulings of the court admitting or rejecting evidence that tended to question the validity of the holding and conduct of such election, and to the registration and qualification of voters at such election, and to the formality of the ballots used thereat, and to the notices of the election, publication of the ñames of the inspectors, and generally tending to question the validity of such election. If any of these rulings were erroneous- from the standpoint of the objections urged against them, they can not avail the defendant here because, except to the extent hereinafter indicated, it was improper for the court to permit either side to- go into any inquiry whatever touching the validity and result of such election other than it was shown to be.by the record of the canvass of the result thereof by the proper canvassing board. In the case of State v. Cooper, 101 N. C. 684, 8 S. E. Rep. 134, a case on all fours with the one under discussion, the court says : “The important and essential things to be done were, that the proper officers should hold the election, ascertain the result and certify the same, and deposit their certificate in the proper public office of deposit, so that the people of the township — indeed, all the people — could there learn the result. They had notice of the election, and the law charged them with knowledge of the result. It provided the means by which and the place where such information might be had by everybody. Such ascertainment and declaration of the result of the election- was prima facie correct, and. it was conclusive until by a proper action, brought for the purpose, the true result otherwise should- be ascertained and declared by a judicial determination. The law contemplates and intends, generally, that the result of an election, as determined by the proper election officers, shall stand and be effective until it shall be regularly contested and reversed, or adjudged to be void by a tribunal having jurisdiction for that purpose. It would lead to confusion and ridiculous absurdity to allow the validity and result of an election- to be contested every time the result of it, as- determined by the election officers, became material collaterally in a litigation. In the present case the defendant might be able to prove facts showing that the election mentioned was void for one cause or another; another defendant, charged with a like offence, might be less fortunate, and the State might show that it was regular and valid, and so on indefinitely. The law does not provide for such continual and repeated contests in every case thaf may arise. It intends that one contest, properly instituted for the purpose, shall establish the validity or invalidity of the election questioned. If the present defendant or others were dissatisfied with the conduct of the election, or the result of it as declared, they should have promptly brought their action, as they might have done, to contest its validity and the correctness of the ascertained result. They had the right to do .so, and, as they did not, it can not be attacked in a collateral action.” In the case of State v. Emery, 98 N. C. 768, 3 S. E. Rep. 810, it is said: “For all legal purposes, the result of the election is what it is declared to be by the authorized board of canvassers, empowered to make the canvass at the time when the returns should be made, until the decision has been reversed by a superior power. * * * The result of the election as decided and proclaimed, is conclusive in any collateral proceedings. It is to be, prima facie, that every necessary requisite has been' complied with. All facts necessary to the validity of the election must be ascertained and determined,. and, when proclaimed, must be final and conclusive, unless impeached or attacked in some direct proceeding.” Smallwood v. City of Newbern, 90 N. C. 36; Black on Intoxicating Liquors, § 103; Block v. Commissioners, 99 U. S. 686; Crouse v. State, 57 Md. 327; Mackin v. State, 62 Md. 244; Combs v. State, 81 Ga. 780, 8 S. E. Rep. 318; Puckett v. State, 71 Miss. 192, 14 South. Rep. 452; People v. Adams, 95 Mich. 541, 55 N. W. Rep. 461; Jones v. State, 67 Md. 256, 10 Atl. Rep. 216; Thomas v. Abbott, 105 Mich. 687, 63 N. W. Rep. 984.

The information in this case was based upon section 1, Chapter 4746 act approved June 2, 1899, as follows: “Whoever sells or causes to. be sold any spirituous, vinous or malt liquor in any county or precinct which has voted against the sale of such liquors under the provisions of Chapter 8, Title 11, Division x, Revised Statutes, of the State of Florida, shall be punished,” &c. The portion of tire Revised Statutes referred to embraces sections 857 to 864 inclusive and those sections provide for the calling, holding and conducting of elections to decide whether the sales of intoxicating liquors, wines, or beer shall be prohibited in counties where, such elections are held as provided for in Article XIX of the constitution of 1885. Section 861 requires the county commissioners to canvass the returns and “declare the result,” and to cause the same to be recorded, &c. No provision is made for contesting an election of this character, nor does any express provision of law now in force give to any defendant charged with the crime denounced by section 1, Chapter 4746 above referred to, the right to contest such elections for irregularities, in conducting" them in prosecutions for such crimes., and it is not to. be supposed that the legislature contemplated that every person charged with such crime should collaterally contest the election upon such grounds, in such prosecutions. The statute makes it a crime to sell intoxicating liquors in counties “which have voted against the sale of such liquors” under certain provisions of law therein referred to., and where an election has been held, and it was properly called by the proper officials upon a proper petition, and the result against selling has been ascertained, declared and recorded as provided by the law, we are of opinion the county has “voted against the sale” within the meaning of the statute, and that in prosecutions for offences thereunder mere irregularities in conducting the election can not be shown in defence unless they, go to the point of showing a want of authority or jurisdiction to call the election or unless they show that the canvass-and declaration of the result was the product of corruption or fraud on the part of those charged with the duties of canvassing the returns and declaring the result. It is true that section 1, Chapter 4552, already quoted in this opinion, declares that a duly certified copy of the record of the result of the canvass of the returns shall in prosecutions of this nature be taken as prima facie evidence that said election was “legally called, conducted and holden,” and that such certified copy when introduced will furnish prima facie evdence of certain facts not necessary in our view for the State to prove, but that does not necessarily give the accused a right to put in issue everything of which the certified copy is made prima facie evidence, and we think in view of all the provisions of law mentioned it was not intended to give such right.

The nineteenth, twentieth and twenty-first assignments of error, except as they have already been passed upon in what has been said, question the sufficiency of the evidence to support the court’s finding, a jury having been waived and the cause on both the law and facts having, by agreement, been submitted to the judge. We think the evidence fully supported the finding both as to the fact that prohibition had been established in said county by an election held, and as to the illegal sale in violation thereof, by the defendant.

The judgment of the Circuit Court is hereby affirmed.