Joughin v. Parks, Judge

143 So. 145, 107 Fla. 833

• Court: Supreme Court of Florida
• Decided: August 25, 1932
• Status: Published

Opinions

Opinion filed June 27, 1932. An injunction will not issue for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held, because the holding and conduct of an election during its progress is a political matter with which courts of equity have nothing to do. Pomeroy's Equity Jur. (4th Ed.) sections 1753-1754 and cases cited. See Markett vs. Sumter County, 60 Fla. 328 and cases cited.

The rule in this State was only modified in the recent case of McGregor vs. Burnett, 141 So. 599, to the extent of holding that where "prior to an election" palpable violation of the registration or election laws is about to take place, and is properly charged in a bill in equity by an elector he may have "injunction or such other appropriate remedy as is available to him under the law" to prevent fraud and palpable violations of the election laws which are charged as about to be committed prior to the election such as was the situation in that case dealt with.

The Constitution provides (Section 9, Article VI) that theLegislature shall enact such laws as will preserve the purity of the ballot, and in the absence of some statute on the subject, courts of equity are without jurisdiction to violate the general rule referred to in the first paragraph of this opinion, by substituting through a court of chancery remedies for alleged threatened violations of the election laws, or by controlling or directing the manner in which the election shall be conducted on the day appointed by law for carrying it out.

The case of People vs. Tool, 86 P. 224, 6 L.R.A. (N.S.) 822, merely recognizes the right of the Attorney General in his official capacity to an injunction under the Colorado law to prevent and redress public wrongs, such as a conspiracy to carry an election by fraud, is not applicable to the case at bar, if applicable in this State at all under our previous holding in Markett vs. Sumter County, 60 Fla. 328, 53 So. 613, where we held that "the jurisdiction of courts having general equity powers does not include mere election contests of any kind unless so provided expressly or impliedly by organic or statutory laws.

A writ of prohibition is proper to restrain a court of equity about to act in excess of its powers, where no plain, complete and adequate remedy by appeal is shown. See State vs. Board of Trustees of Salvation Army, 135 So. 781.

The purpose of the bill and the prayer for relief in this case appearing to be one to direct or control the mode in which, or of determining the rules of law in pursuance of which, the primary election of June 28th, 1932, is to be held in Hillsborough County on the day of the election, by the officers and officials having duties under the law to perform in connection therewith, it appears that the court is acting in excess of its jurisdiction in entertaining such bill and that a rule nisi in prohibition should issue as prayed.

Rule nisi in prohibition issued.

BUFORD, C.J., AND WHITFIELD AND DAVIS, J.J., concur.

ELLIS AND BROWN, J.J., concur specially.