Weithorn v. Adelstein

201 So. 2d 643, 1967 Fla. App. LEXIS 4665

• Court: District Court of Appeal of Florida
• Decided: August 1, 1967
• Docket: No. 67-627
• Status: Published

Opinion

PER CURIAM.

The City of North Miami Beach allegedly adopted the State election code by reference in an ordinance, pursuant to § 104.45, Fla. Stat., F.S.A.

The City of North Miami Beach conducted an election in the spring of this year. The appellees were successful candidates for positions on the City Council. Proceedings alleging violations of the municipal election code were instituted in the municipal court, and are pending therein at this time. Following the election and following the charges in the municipal court, the appellant instituted an action in the circuit court, under the authority of Ch. 104, Fla.Stat., F.S.A. alleging violations of the election code by the appellees in the recent municipal election, and sought to have the chancellor declare that the appel-lees had violated the municipal election ordinances and to declare their offices vacant. The complaint as amended also sought an accounting of funds expended in the recent municipal election by a political organization. Counsel for the appellant sought to take depositions upon short notice. The chancellor denied the right to take the depositions, and dismissed the amended complaint. This appeal ensued. We affirm.

The enactment of an ordinance which incorporated, by reference, the State election code into the ordinances of the City of North Miami Beach, had the effect of making the State statutes ordinances of said City. Any violations thereof should be prosecuted the same as any other ordinance of the municipality, to wit: in the municipal court wherein jurisdiction generally is lodged under the municipal charter to try offenses against municipal ordinances, and specifically provided in the charter of the City of North Miami Beach for violations of election provisions.¹

We find that the amended complaint failed to state a cause of action for accounting and was premature, under the circumstances. Having so determined, we find no error in the chancellor’s refusing to advance the time for taking of depositions by the plaintiff.

Therefore, the final order dismissing the amended complaint be and the same is hereby affirmed.

Affirmed.

1 . Sec. 17 of the Charter of the City of North Miami Beach reads as follows:

“The City Council shall provide by ordinance for the punishment of violations of the elections provisions of this Charter and for the violation of any ordinance enacted pursuant thereto. Any candidate convicted of a violation shall be ineligible to take office under this Charter and the office to which he was elected shall be deemed vacant.”