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STATEMENT
On October 7, 1938, three persons who are alleged to be citizens, taxpayers and electors of the City of Miami, Florida, filed with the senior Judge of the Circuit Court for Dade County, Florida, in which county the City of Miami is situated, a "bill of complaint and petition for relief" against the five Commissioners of the City of Miami and the Acting Clerk and the
de jure Clerk of the City of Miami, Florida. Filed in the Clerk's office, October 10, 1938.
The bill of complaint and petition contains extended allegations respecting acts and conduct of the defendant city officials in relation to an election to recall three of the City Commissioners under the provisions of the City Charter.
The prayer of the bill and petition is as follows:
"WHEREFORE, your Plaintiffs and Petitioners pray:
"1. That this Honorable Court take jurisdiction of this cause and give and grant unto them such appropriate and adequate relief as may seem meet and proper.
"2. That a Mandatory Injunction be forthwith issued and directed to the Defendant, A.D.F. Bloodworth, directing and requiring him to produce before this Court the
Registration Books of the City of Miami, Florida, together with the Amended Petition for the Recall of the three Defendants, Robert R. Williams, John W. DuBose, and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida, and such other papers and records as may now be in his office or in his possession and control affecting in anywise or manner the sufficiency or insufficiency of said Amended Petition.
"3. That a Mandatory Injunction be forthwith issued and directed to the Defendant, Frank J. Kelly, directing and requiring him to produce before this Court any and all books, papers and records over which he has control affecting in anywise or manner the sufficiency or insufficiency of the Amended Petition for the Recall of the three Defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida.
"4. That, thereupon, this Court determine and ascertain from said Registration Books, Amended Petition for Recall of the three said Commissioners and such other papers and records as may be brought into the Court, whether or not the intended action of Frank J. Kelly, as Clerk of the City of Miami, Florida, to certify to the sufficiency of the said Amended Petition for the Recall of the three defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida, should be in Law and Equity treated as having been done, and likewise to determine whether or not the failure of the said A.D.F. Bloodworth, as Acting Clerk of the City of Miami, Florida, to certify to the sufficiency of said Amended Petition is an arbitrary and prejudicial act and a part and parcel of conspiracy between him, the said Bloodworth, and the three said Defendant-Commissioners whose recall is sought, and, if in law the said Amended Petition is sufficient, that the Court apply thereto the maxim
that Equity regards and treats that as done which in good conscience ought to be done.
"5. That in the event the Court so finds that said equitable principle should be so applied that forthwith the Defendants, Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R.C. Gardner and J.N. Lummus, as City Commissioners of said City of Miami, Florida, and as the City Commission of said City, be ordered and directed to order the holding of a Recall Election for the said three Defendants so sought to be recalled as required under the Laws of Florida and the Charter of the City of Miami, Florida.
"ALTERNATIVE PRAYER
"In the alternative, the Plaintiffs and Petitioners pray that this Court exercise its statutory jurisdiction as conferred in that portion of Section 12 of the Charter of the City of Miami, Florida, to-wit:
"`Should the Commission fail or refuse to order an election as herein provided within the time required, such election may be ordered by any State Court of general jurisdiction."
"And that the Court do forthwith issue to the Defendants, Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R.C. Gardner and J.N. Lummus, as the City Commission of the City of Miami, Florida, a rule to show cause, returnable to a certain day, as to why this Court should not order an election as above provided because of their failure or refusal to proceed in accordance with Law; that, thereafter, this Court proceed to order an election in accordance with its statutory powers."
An order to show cause was issued by the Judge as follows:
"It having been made to appear by sworn Bill of Complaint and Petition that the Defendants, Robert R. Williams,
John W. DuBose and Ralph B. Ferguson, severally as Commissioners of the City of Miami, Florida, and constituting a majority of said City Commission, and the Defendant, A.D.F. Bloodworth, Acting Clerk of the City of Miami, Florida; have entered into a fraudulent and unlawful conspiracy to deprive the Plaintiffs and Petitioners of their respective rights under the Charter of the City of Miami, Florida, the Laws and Constitution of the State of Florida, viz., to vote upon the recall of the three said Commissioners, and it having been made to further appear from said sworn Bill of Complaint and Petition that Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R.C. Gardner and J.N. Lummus, as the City Commission of the City of Miami, Florida, have failed and/or refused to order a recall election, all as set forth in the said Bill of Complaint and Petition filed in this cause, and the Court having duly considered the same, it is, thereupon,
"ORDERED AND ADJUDGED that the Defendants, Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R.C. Gardner and J.N. Lummus, severally as a Commissioner of the City of Miami, Florida, and as the City Commission of the City of Miami, Florida, do show cause, if any they have, before the undersigned, one of the Judges of the Circuit Court, in and for Dade County, Florida, at his Chambers in the Courthouse in the City of Miami, Florida, at 9:00 o'clock A.M. on Wednesday, October 12, A.D. 1938, or as soon thereafter as Counsel can be heard, why this Court should not order an election for the recall of the three Defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as City Commissioners of the City of Miami, Florida.
"IT IS FURTHER ORDERED AND ADJUDGED that the Defendants, A.D.F. Bloodworth, as Acting Clerk of the City
of Miami, Florida, and Frank J. Kelly, Clerk in jure of the City of Miami, Florida, do appear and produce before me at the time and on the date aforesaid, the Amended Petition for the recall of the three said Defendants, Robert R. Williams, John W. DuBose and Ralph B. Ferguson, as Commissioners of the City of Miami, Florida, and such other papers and records as they, and each of them, may have in their possession and control affecting in anywise or manner the sufficiency or insufficiency of said Amended Petition.
"FAIL NOT UNDER PENALTY OF THE LAW.
"DONE AND ORDERED in Chambers at Courthouse, Miami, Dade County, Florida, on this the 10th day of October, A.D. 1938.
"H.F. ATKINSON, "Circuit Judge."
A motion to strike specified portions of the bill of complaint was granted in part, and a motion to dismiss the bill of complaint was denied in so far as it applies to the bill of complaint as deleted by the order of the Court on the motion to strike.
Defendant Frank J. Kelly filed an individual answer. The other defendants filed a joint and several answer to the bill of complaint and petition.
The statute involved, section 12 of Chapter 10847, Acts of 1925, is as follows:
"Sec. 12. Procedure for Filing Recall Petition. — Any member of the Commission may be recalled and removed therefrom by the electors of the City as herein provided.
"Any qualified elector of the City may make and file with the City Clerk an affidavit containing the name or names of the Commissioner or Commissioners whose removal is sought and a statement of the grounds for removal. The
Clerk shall thereupon deliver to the elector making such affidavit copies of petition blanks for such removal, printed forms of which he shall keep on hand. Such blanks shall be issued by the Clerk with his signature and official seal thereto attached; they shall be dated and addressed to the Commission, shall contain the name of the person to whom issued, the number of blanks so issued, the name of the person or persons whose removal is sought, and the office from which such removal were sought. A copy of the petition shall be entered in a record book to be kept in the office of the Clerk. The recall petition, to be effective, must be returned and filed with the Clerk within thirty (30) days after the filing of the affidavit. The petition before being returned and filed shall be signed by registered voters of the City to the number of at least fifteen per cent (15%) of the total number of registered voters of the City as shown by the City registration books, and to every such signature shall be added the place of residence of the signer, giving the street and number or other description sufficient to identify the place. Such signatures need not all be on one paper, but the circulator of every such paper shall make an affidavit that each signature appended to the paper is the genuine signature of the person whose name it purports to be. All such recall papers shall be filed as one instrument with the endorsements thereon of the names and addresses of three persons designated as filing the same.
"Examination and Amendment of Recall Petitions. — Within ten (10) days after the filing of the petition the Clerk shall ascertain whether or not the petition is signed by the requisite number of registered voters and shall attach thereto his certificate showing the result of such examination. If his certificate shows the petition to be insufficient, he shall forthwith so notify in writing one (1) or more of the persons designated on the petition as filing the
same; and the petition may be amended at any time within ten (10) days, after the giving of said notice, by the filing of a supplementary petition upon additional petition papers, issued, signed and filed as provided herein for the original petition. The Clerk shall, within ten days after such amendment, make like examination of the amended petition, and attach thereto his certificate of the result. If then found to be insufficient, or if no amendment was made, he shall file the petition in his office and shall notify each of the persons designated thereon as filing it, of that fact. The final finding of the insufficiency of a petition shall not prejudice the filing of a new petition for the same purpose.
"Calling of Recall Election. — If the petition or amended petition shall be certified by the Clerk to be sufficient, he shall submit the same with his certificate to the Commission at its next meeting and shall notify the Commissioner or Commissioners whose removal is sought of such action. The Commission shall thereupon within ten (10) days of the receipt of the Clerk's certificate, order an election to be held not less than thirty (30) nor more than forty-five days thereafter. Provided, that if any municipal election is to occur within sixty (60) days after the receipt of said certificate, the Commission may in its discretion provide for the holding of the removal election on the date of such other municipal election.
"Form of Ballot to Recall Commissioner: — Unless the Commissioner or Commissioners whose removal is sought shall have resigned within ten (10) days after the receipt by the Commission of the Clerk's certificate, the form of the ballot at such election shall be as nearly as may be: `Shall A be recalled?' `Shall B be recalled?' etc., the name of the Commissioner or Commissioners whose recall is sought being inserted in place of A, B, etc., and the ballot
shall also contain the names of the candidates to be elected in place of the Commissioner or Commissioners recalled, as follows: Candidates for the place of A, if recalled; Candidates for the place of B, if recalled; etc., but the Commissioner or Commissioners whose recall is sought shall not themselves be candidates upon such ballot. The name of any elector of the City shall be printed as a candidate for the Commissioner at such recall election for the place of the Commissioner to be recalled when a petition in substantially the form provided in Section 7, of this charter, shall be filed in his behalf with the City Clerk, and such petition shall have been signed by at least three per cent (3%) of the total number of registered voters in the municipality and filed with the City Clerk not less than fifteen (15) days before such recall election.
"In case a majority of those voting for and against the recall of any Commissioner shall vote in favor of recalling such official, he shall be thereby removed, and in the event the candidate who receives the highest number of votes for his place shall be elected thereto for the balance of the unexpired term.
"If the Commissioner or Commissioners sought to be removed shall have resigned within ten (10) days after the receipt by the Commission of the Clerk's certificate referred to in this Section above, the form of ballot at the election shall be the same, as nearly as may be, as the form in use at a regular municipal election.
"Procedure on Refusal of Commission. — Should the Commission fail or refuse to order an election as herein provided within the time required, such election may be ordered by any State Court of general jurisdiction."
Testimony was taken before the Circuit Judge, who rendered the following decree:
"FINAL DECREE ORDERING RECALL ELECTION
"This cause having come on for final hearing on the issues made by the pleadings, and the Court, having heard the testimony and evidence produced by the respective parties and their witnesses, and also having heard the argument of counsel for the respective parties, and being otherwise fully advised in the premises, is of the opinion and finds that:
1.
"This is a suit brought by three citizens, taxpayers and electors of the City of Miami, a municipal corporation in Dade County, Florida, against the City Commissioners of said City, severally as a Commissioner, and also as the City Commission of said City. Both the Acting and the
in jure City Clerks are likewise made Defendants.
2.
"That Frank J. Kelly, as City Clerk of the City of Miami, Florida, did on May 10, 1938, make a Certificate that a petition, as amended and supplemented, seeking a Recall Election applying to Miami City Commissioners, to-wit: Robert R. Williams, John W. DuBose and Ralph B. Ferguson, was sufficient. The said Clerk was prevented from presenting his Certificate already prepared and signed by him and in evidence in this cause, by reason of a Constitutional Writ of the Supreme Court in a case brought by the Defendant, Robert R. Williams, against the said Clerk, Frank J. Kelly; that said Constitutional Writ was afterwards vacated and the said Kelly immediately began his efforts to purge the Registration Books. On the same day, the City Commission of the City of Miami, Florida, by a majority vote of the Commissioners sought to be recalled, proceeded to summarily remove the said Kelly from office and the said Commission majority did proceed to appoint
one A.D.F. Bloodworth, as Clerk, who made some effort to purge the Registration Books, but it appears from testimony of the said Bloodworth offered in this cause that his efforts were solely confined to a restoration of names to the card index system in use in the Clerk's office and to thereby increase the number of registered voters, making no effort to check the names of approximately thirty-six thousand (36,000) voters who had been found by Kelly to be qualified registered voters; in other words, Bloodworth accepted Kelly's findings only insofar as it would be helpful to the three (3) Commissioners who were responsible for his employment, further testifying that although he was in office as Clerk for about three (3) months he had not completed his purge.
"Upon Quo Warranto proceedings, Bloodworth was removed by the Supreme Court and Kelly reinstated; on the day following, the City Commission did suspend Kelly and ordered him again removed from office and he was forcibly ejected by the Chief of Police of the City of Miami.
"The Court finds that Frank J. Kelly, as Clerk, in the exercise of his quasi judicial duties, as provided by the Charter of the City of Miami, did ascertain and determine that the Petition, as amended and supplemented, for the Recall of the three (3) said Commissioners, did contain fifteen per cent (15%) of the registered voters of the City of Miami, according to the Registration Books and that he would have delivered said Certificate so made to the City Commission had he not been prevented from so doing by matters over which he had no control. Issue being raised by the Bill of Complaint and Answer that the said Certificate was insufficient, the Court proceeded to consider the Registration Books of the City of Miami and other testimony and proofs offered in evidence, and finds that the City Commission of Miami, Florida, did on November 16,
1925, pass Ordinance No. 536, and in Section 16 thereof, did order the Clerk, as Supervisor of Registration, to at once cause the name of each elector who had previously registered in July and August of said year to be entered in the Registration Book for the precinct in which the elector resided.
"The Court further finds that the then Clerk, one H.E. Ross, proceeded to follow the requirements of that portion of said Ordinance No. 536, although he testified that he did not intend to do such because of the Ordinance — merely proceeding in that manner for his own convenience. Instead of labelling the books as `Registration Book,' as provided in said Ordinance, he termed them `Poll Books'; nevertheless, they complied with the provisions of said Ordinance above referred to. At or about the same time, the said Ross, as Clerk, proceeded to create for his own convenience a card index system which was made from the duplicate registration certificates issued to each voter at the time he subscribed his name in the Registration Books. That the Registration Books in which the voters subscribed their names were never purged by the removal of voters who had become disqualified by death, removal or otherwise, and as testified to by the said Ross in many instances contained the name of a registered voter who had registered as many as eight or ten times. Further that the Registration Books upon which the electors signed their names are in such a dilapidated and worn condition, together with the fact that thousands of voters removed from the City of Miami after the `Boom Period' of 1925 and 1926 that it would be a well nigh impossible task for the said books to be, within any reasonable time, made to correctly reflect the registered voters of the City of Miami.
"The transcribed Registration Books or `Poll Books' were purged by the Clerk from time to time as it came to his
knowledge that the name of an elector should be removed therefrom. The Court further finds that said transcribed `Registration Books,' commonly called the `Poll Books,' correctly and accurately reflect the registered voters of the City of Miami.
"The Court further finds that the Transcribed Registration Books, called the `Poll Books,' reflect as accurate a list of the registered voters of Miami as could be ascertained if the books in which the voters signed their names were purged in accordance with Ordinance No. 536, and further finds that any purge of the last-mentioned books would at this late date have to be based to a great extent upon hearsay evidence.
"The Court further finds that said `Poll Books' were the books used by the Inspectors and Clerks at all of the elections since 1925, and especially at the elections in which the Commissioners sought to be recalled were elected, and that the books in which the voters actually signed their names were only used for checking upon the infrequent occasions when a prospective voter's name did not appear upon said `Poll Books.'
"The Court finds from the testimony of the Clerk Frank J. Kelly, that the `Poll Books' were accurately and correctly kept and purged continuously since he went into office in 1935 which was prior to the election of two (2) of the said three (3) Commissioners, whose recall is sought.
"The Court further finds that the names of the Petitioners sought the Petition for the Recall of the three (3) said Commissioners were compared by the said Clerk with the original signatures of the registered voters and found to be genuine and accurate, and that the said Petition was sufficient and ought to have been delivered to the City Commission of the City of Miami.
"The Court further finds that the three (3) said City
Commissioners sought to be recalled did by their acts and conduct prevent the said City Clerk from delivering to them the Certificate as to the sufficiency of the said Petition for Recall of the three (3) said Commissioners.
"The Court further finds that the Charter of the City of Miami makes the General Election Law of the State of Florida a part of the Charter of the City of Miami, and that the duty is imposed upon the City Commissioners to examine and revise the Registration Books, the authority and duty therefor being contained within said Charter and being as follows, to-wit:
"`Any person who shall possess the qualifications requisite to an elector at a general State Election and shall have resided in the City six (6) months next preceding the city election, at which he offers to vote, and shall have been registered in the City registration books that shall be prescribed by ordinance, shall be a qualified elector of the city and all elections held in said city shall be conducted and held in accordance with the provisions of the general election law of the State of Florida, except as otherwise provided in this charter, and except that the City Commissioners shall be substituted for the Board of County Commissioners.'
"The duty of the County Commissioners is set forth in Section 297, Compiled General Laws, 1927, being as follows, to-wit:
"`COUNTY COMMISSIONERS TO EXAMINE AND REVISE REGISTRATION BOOKS. * * * — It shall be the duty of the county commissioners of each county, on the first Wednesday after the registration books are closed, as provided for in this Article in every year in which there is a general election, to examine and revise the registration books of said county, erasing therefrom the names of all such as have died, or removed from the county or from one district
to another in the same county, or who are otherwise disqualified to vote, and restoring such names as have been improperly taken off by the supervisor of registration; said examination and revision shall be completed within three days thereafter; and immediately the county commissioners shall cause to be published in a newspaper, if there be one published in such county, and also post at the court house door a list of the names, alphabetically arranged, that have been erased or stricken from the registration books of each district in such county, either by the supervisor of registration or said board of county commissioners; * * *'
"The duty of the City Clerk as Custodian of Registration Books is the same as that of the County Supervisor of Registration as set forth in Section 293, Compiled General Laws, 1927, such duty being conferred by Section 15 of Ordinance No. 536. Said Section makes it the duty of said Clerk, as Supervisor, to `whenever it should come to the knowledge of the Supervisor of Registration that any elector has died or become disqualified to vote for any reason whatever or that his right to vote has become affected in any way since his registration, it shall be the duty of the Supervisor of Registration to make a note of such fact on the proper Registration Books opposite the name of such person and to mark off the names of such persons as have so ceased to be qualified electors by running a pen through the names of such person or such persons and said Supervisor of Registration shall carefully note on said book the date of such erasure and the cause thereof."
"Section 16 of said Ordinance No. 536, provides:
"`That all persons who registered for the special election held on the 2nd day of September, 1925, to vote upon the question whether the corporate limits of the City of Miami shall be extended so as to include the territory described in Section 1 of Ordinance No. 420, shall be deemed
registered electors of the City of Miami, and the Supervisor of Registration shall at once cause the name of each such elector to be entered in the registration book for the precinct in which the elector now resides.'
"The Court further finds that the duty of the City Clerk of Miami in checking the Recall Petitions was quasi judicial and rested upon the City Clerk and not the City Commission; that the ruling of the Supreme Court in the case of WILLIAMS v. KELLY,182 So. 881, was predicated upon allegations in the Bill of Complaint by the Plaintiff, who is one of the Defendants herein, who there contended and here contends that the original Registration Books in which the voters signed their names must be purged and until that be done by the Clerk he was not entitled to make and deliver unto the City Commission a Certificate as to the sufficiency thereof; that the allegations of said Bill of Complaint failed to show or advise the Supreme Court that the books commonly referred to as `Poll Books' were in law, according to the Ordinance of said City, a part of the Registration Books of the City of Miami, and further failed to show that it was the duty of the City Commission to examine and revise the Registration Books of said City. which had not in truth and in fact been done since their inception thirteen (13) years before.
"It is to be noted that the Supreme Court in the last-mentioned case stated that `of course, the City Registration Books must be so kept as to show only the qualified registered voters of the City at the time such Registration Books are being used as the statutory means to show `the total number of registered voters in the city.' In further proceedings it may be shown whether in this respect the Statute has been obeyed as it must be.'
"The Plaintiff, Robert R. Williams, Defendant herein, saw fit to dismiss the above suit when it returned to the
Lower Court, and, therefore, no opportunity was given the Defendants to answer and show by proofs the above facts.
"The Court further finds that, even though the Books in which the registered electors signed their names should have been purged, that it became and was the duty of the several City Commissions since the year 1925, including the present City Commission, Defendants herein, to have purged said Books, and that their failure so to do is reponsible for the condition in which they now exist and from which it is well nigh impossible to ascertain the registered voters of said City, and that the voters seeking a Recall Election should not be deprived of their constitutional rights because of the dereliction of duty and neglect of the Defendants.
"The Court further finds that it has jurisdiction to call an election because the acts and conduct of the three (3) said Commissioners sought to be recalled in their obstructive methods to prevent the Recall Election have been and are tantamount to a failure and refusal to call said election, and that this Court is empowered as a court of general jurisdiction to itself call said election as provided in the Charter of said City, to-wit:
"`Should the Commission fail or refuse to order an election as herein provided within the time required, such election may be ordered by any State Court of general jurisdiction.'
"The Court further finds that this Section is constitutional and does not violate organic law because of the constitutional provision, Article V, Section 11, Compiled General Laws, 1927, to-wit:
"`Circuit Courts shall be original jurisdiction * * * of such other matters as the Legislature may provide.'
And the action of the Court in ordering an election where there has been a failure or refusal so to do by an Administrative
Body is judicial and all acts done by the Court to bring about the election itself is likewise judicial. See State, ex rel.Browning, et al., v. Juden, (Mo) 264 S.W. 101.
"WHEREFORE, it is, upon consideration thereof, CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court that:
"1. This Court has jurisdiction of the subject-matter of this suit and of the parties to this cause.
"2. The equities in this cause are with the Plaintiffs,
"3. (a) That a municipal election for the City of Miami for the recall of each of the three (3) City Commissioners, to-wit: Robert R. Williams, John W. DuBose and Ralph B. Ferguson, and for the election of their respective successors, if recalled, is hereby called and directed to be held in the City of Miami, Dade County, Florida, at the following voting places in the Precincts designated, to-wit:"
Then follow details as to publication of notice, appointing election officials for holding a recall election December 15, 1938.
The decree concludes as follows:
"(f) Unless the Commissioners whose removal is sought, or either of them, shall have resigned in accordance with the provisions of Section 12 of the Charter of the City of Miami, Florida, the Official Ballot to be used at said election shall be, as nearly as may be, the following form, to-wit: (form of ballots set out)
"And the City Clerk will prepare the ballot so that the names of the qualified candidates shall appear on said ballot in their respective alphabetical order according to surname.
"(g) If either of said Commissioners, to-wit: Robert R. Williams, John W. DuBose and Ralph B. Ferguson, shall resign hereafter, the name of such commissioner or
commissioners who shall have resigned shall be eliminated from said Ballot insofar as the voting upon the Recall of said Commissioner or Commissioners so resigned is provided upon said Ballot, and the word `resign' shall be substituted for the words `if recalled,' and otherwise the form of Ballot herein prescribed shall remain as herein provided.
"(h) That the City Commission of Miami, Florida, by Ordinance, Resolution or otherwise provided for shall pay from monies on hand any and all costs necessary to carry this Order into effect, including but not limited to the costs of registration, advertising of said election and the election herein provided for; and all officers and employees of the City of Miami, including the Acting City Clerk thereof, are hereby ordered and directed to perform their respective duties, according to law and the Charter of said City of Miami, in order that the election herein called and provided for shall be held as herein ordered.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that jurisdiction of this cause is retained for the purpose of making such other and further orders and decrees, if any, as shall be meet and proper.
"DONE AND ORDERED, this 10th day of November, A.D. 1938, at Miami, Dade County, Florida.
There was an amendment to the details of the decree that is not material to be stated.
The following notice of entry of appeal was filed and recorded:
"BOOK 485 PAGE 116
"IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR DADE CO. IN CHANCERY. No. 54633.
"KENNETH S. KEYES, et al., Plaintiffs, vs. ROBERT R. WILLIAMS,et al., Defendants.
"NOTICE OF ENTRY OF APPEAL.
"TO: KENNETH S. KEYES, ALEX M. BALFE, C.D. VAN ORSDEL, FRANK J. KELLY, A.D.F. BLOODWORTH AND RALPH C. GRAHAM:
"You will please take notice that Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R.C. Gardner and Anna M. Perry, severally as a Commissioner of the City of Miami, Florida, and as the City Commission of the City of Miami, Florida, do hereby take and enter their appeal from that certain final decree rendered in the above entitled cause on the 10th day of November 1938, by the Honorable H.F. Atkinson, same being filed and recorded in the office of the Clerk of Circuit Court in and for Dade County, Florida, on November 10, 1938, recorded in Chancery Order Book 485 at Page 1.
"The said Robert R. Williams, John W. DuBose, Ralph B. Ferguson, R.C. Gardner and Anna M. Perry, Severally as a Commissioner of the City of Miami, Florida are named as appellants in this appeal, and Kenneth S. Keyes, Alex M. Balfe, C.D. Van Orsdel, Frank J. Kelly, A.D.F. Bloodworth and Ralph C. Graham are hereby named and designated as appellees, and this appeal is taken to the Supreme Court of Florida, sitting at the State Capital at Tallahassee, Florida, and the said appeal is hereby made returnable before the Supreme Court of Florida on January 25, 1939. Each of the appellees herein designated is hereby notified of the taking and entering of this appeal, and of all matters and things herein set forth.
"Dated at Miami, Florida, this 15th day of November, 1938.
"Filed this 15th day of Nov. A.D. 1938, and recorded
this 15th day of Nov. A.D. 1938, in Chancery Order Book 485 on Page 116
"E.B. LEATHERMAN, "Clerk Circuit Court "JOHN W. WATSON "By F.L. Davis, D.C. "E.F.P. BRIGHAM "VINCENT C. GIBLIN "MARION E. SIBLEY "BY J.W. WATSON, JR. "Attorneys for Appellants."
Appellants' questions involved are:
"FIRST QUESTION
"Do the provisions of a city charter adopted by special Act of the Legislature which grant to the Circuit Court jurisdiction to call and order a recall election offend Section One Article Two of the Constitution of the State of Florida, and Section Twenty Article Three of the Constitution of the State of Florida?
"SECOND QUESTION
"Does a Court of Chancery have jurisdiction of a bill of complaint or petition which seeks from the Court an order calling an election, which order or decree sets up the machinery for holding an election and provides that the election shall be held at the direction, under the supervision and in accordance with the rules and regulations prescribed by the Court in its decree?
"THIRD QUESTION
"Where a city charter provides that a recall election shall be ordered by the City Commission of such city when the Clerk of the city shall certify that a recall petition as amended contains fifteen per cent of the registered voters of
said city as shown by the registration books, and in the event the Commissioners fail to order such election, upon the receipt of the Clerk's certificate the Circuit Court may order said election, can the Circuit Court lawfully order such election upon a bill of complaint filed by electors and taxpayers of said city where all the evidence establishes that the Clerk has not ascertained whether said recall petition contains fifteen percent of the registered voters of said city as shown by the registration books, and has not ascertained whether said petition contains such percentage of the voters of said city as shown by the registration books, and the evidence clearly establishes that said petition does not contain fifteen percent of the registered voters of said city as shown by the city registration books?"
The "bill of complaint and petition for relief" brought in the Circuit Court in this cause invoke the equity jurisdiction of the Circuit Court to order by decree the holding of a municipal recall election, upon the theory that the City Commissioners who are sought to be recalled have unlawfully obstructed stated statutory proceedings by the City Clerk that are preliminary to calling and holding a recall election, and that the Court of Equity should take jurisdiction of the bill of complaint and petition for relief brought by citizens who are taxpayers and electors of the city, and ascertain the facts and order the calling and holding of a recall election under the statute when the City Commission has failed to do so as contemplated by the charter statute.
The controlling questions presented are whether the petitions for a recall municipal election are signed by at least 15% of all the registered voters of the City of Miami as shown by the city registration books, and whether the Circuit Court is authorized to order a recall election to be held under the charter statute when the City Commissioners are
adjudged to have failed to call such election. Previous related decisions are in DuBose v. Kelly, 132 Fla. 548, 181 So. 11; Williams v. Kelly, 133 Fla. 224, 182 So. 881, and State, ex rel.,
Attorney General, v. Bloodworth, 369 Fla. 134, 184 So. 1.
Quoted in the statement are the statutory charter provisions for calling and holding a recall election for recalling members of the City Commission, Section 12, Chapter 14847, Acts of 1925, among which statutory charter provisions are:
"Any qualified elector of the City may make and file with the City Clerk an affidavit containing the name or names of the Commissioner or Commissioners whose removal is sought and a statement of the grounds for removal. The Clerk shall thereupon deliver to the elector making such affidavit copies of petition blanks for such removal, printed forms of which he shall keep on hand. Such blanks shall be issued by the Clerk with his signature and official seal thereto attached; they shall be dated and addressed to the Commission, shall contain the name of the person to whom issued, the number of blanks so issued, the name of the person or persons whose removal is sought, and the office from which such removal is sought. A copy of the petition shall be entered in a record book to be kept in the office of the Clerk. The recall petition, to be effective, must be returned and filed with the Clerk within thirty (30) days after the filing of the affidavit. The petition before being returned and filed shall be signed by registered voters of the City to the number of at least fifteen per cent (15%) of the total number of registered voters of the City as shown by the City registration books, * * *
"Within ten (10) days after the filing of the petition the Clerk shall ascertain whether or not the petition is signed
by the requisite number of registered voters and shall attach thereto his certificate showing the result of such examination. * * *
"If the petition or amended petition shall be certified by the Clerk to be sufficient he shall submit the same with his certificate to the Commission at its next meeting and shall notify the Commissioner or Commissioners whose removal is sought of such action. The Commission shall thereupon within ten (10) days of the receipt of the Clerk's certificate, order an election to be held not less than thirty (30) nor more than forty-five days thereafter." * * *
"Should the Commission fail or refuse to order an election as herein provided within the time required, such election may be ordered by any State Court of general jurisdiction."
It is in effect contended that the provision of the statute which imposes upon the courts the administrative duty of ordering a recall election violates Article II of the Florida constitution which forbids any person properly belonging to the Judicial Department to exercise any power appertaining to either of the other two departments of the State government, except in cases expressly provided for in the constitution.
The constitution does not expressly provide that the State Courts shall have jurisdiction to order a recall or other election to be held; nor is the ordering of an election to be held an essentially judicial function; but the constitution does provide that:
"The circuit courts shall have exclusive original jurisdiction in all cases in equity, * * * and original jurisdiction * * * of such other matters as the Legislature may provide." Sec. II, Art. V.
Ordering an election to be held is ordinarily an administrative function or duty and is not one of "the powers of
government" that are by the constitution divided into three departments, viz.: Legislative, Executive and Judicial. Administrative authority or duty may by statute be appropriately made subject to the powers of either of the three departments when no provision of the constitution is thereby violated, for practically all the powers of government are executed or enforced through administrative or ministerial officers, agents or employees. See State v. A.C.L. Ry. Co., 56 Fla. 617, 47 So. 969, 32 L.R.A. (N.S.) 639. The Governor orders special elections to fill vacancies in office in stated cases. Sec. 256 (221) C.G.L. The quoted provisions of the Miami City Charter Act do no more than to expressly authorize State courts of general jurisdiction to order a recall election to be held if the City Commissioners fail or refuse to order a recall election when it is their duty to do so.
In this case a court of equity having general jurisdiction under the constitution took jurisdiction of a bill of complaint and petition for relief, and, upon allegations in effect that a majority of the City Commissioners had not performed their statutory duties but had hindered the City Clerk in performing his duty upon the institution of proceedings for a recall election, the court in the exercise of its general and exclusive equity powers under the constitution, took evidence and ascertained that statutory official duties of the City Commissioners in the premises had not been performed; and proceeding upon the principle that equity considers the substance of things and the rights of all parties under the law, and, acting within its jurisdiction, ordered that to be done which should have been done by the City Commissioners in ordering a recall election to be held.
In the exercise of its constitutional powers to have equity done to and by litigants before the court in appropriate
proceedings, the court has ascertained and determined in effect that the alleged failure and conduct of the City Commissioners is proven, and the court ordered a recall election, in consonance with the statutory authority conferred on State courts of general jurisdiction; and in furtherance of the exercise of its constitutional equity powers to require that to be done which should be done, has also ordered named persons to hold the recall election with incidental orders as to publication of notices of the election and other appropriate and needful matters. The court merely ordered to be done that which the court in effect found the Commissioners should have done under the statute but failed to do.
Article II of the Florida constitution is not shown to have been violated by the statute or its application in this case.
The quoted provisions of the statute do not regulate the jurisdiction and duties of any class of officers, or regulate the practice of courts of justice in violation of sections 20 and 21, Article III, of the constitution.
Courts of equity do not have general jurisdiction to order elections to be held in the absence of valid statutory authority; but courts of equity do have power in proper cases to require that to be done which in law should be done; and any appropriate statutory or other means not violative of organic law may be utilized in requiring statutory duties to be performed by persons designated by the court itself or by statutes, as may be most appropriate to the complete exercise of the equity power when the constitution or a controlling statute is not violated; and no such violation is shown in this case. This holding does not conflict with the decision in Joughin v. Parks, 107 Fla. 833,147 So. 273. See State v. Duval County, 76 Fla. 180, 79 So. 692; Fla. Motor Lines, Inc., v. R.R. Com'rs. 100 Fla. 538, 129 So. 876; McMullen v. Newmar Corp., 100 Fla. 566, 129 So. 870; Towns v. State, 102 Fla. 188, 135 So. 822; Duval County v. Jennings,121 Fla. 584; 164 So. 356."
In DuBose v. Kelly, 132 Fla. 548, 181 So. 11, and in Williams v. Kelly, City Clerk, 133 Fla. 224, 182 So. 881, where previous phases of this general controversy are referred to, it was in effect alleged that the City Clerk had not properly ascertained that at least 15% of "the total number of registered voters of the city as shown by the city registration books," had signed the recall petitions as required by the charter statute, before the Clerk could file a certificate to that effect, and this court, with only the bill of complaint before it, stated that "in further proceedings it may be shown whether, in this respect, the statute has been obeyed as it must be." The City Clerk was enjoined from issuing the requested certificate because it was then in effect alleged and not denied that the recall petitions were not signed by at least 15% of the registered voters of the city as shown by the city registration books, as required by the charter statute. The law does not designate the books that constitute the city registration books, but the statute does provide that:
"Any person who shall possess the qualifications requisite to an elector at a general State Election and shall have resided in the City six (6) months next preceding the city election, at which he offers to vote, and shall have been registered in the City registration books that shall be prescribed by ordinance, shall be a qualified elector of the city and all elections held in said city shall be conducted and held in accordance with the provisions of the general election law of the State of Florida, except as otherwise provided in this charter, and except that the City Commissioners shall be substituted for the Board of County Commissioners,"
And Section 16 of Ordinance No. 536 of the City of Miami provides:
"That all persons who registered for the special election held on the 2nd day of September, 1925, to vote upon the question whether the corporate limits of the City of Miami shall be extended so as to include the territory described in Section 1 of Ordinance No. 420, shall be deemed registered electors of the City of Miami, and the Supervisor of Registration shall at once cause the name of each such elector to be entered in the registration book for the precinct in which the elector now resides."
It is now for the first time shown to this court what in fact constitute "the city registration books." The trial Judge in this case found from the evidence adduced before him that:
The City Clerk "in the exercise of his quasi judicial duties, as provided by the Charter of the City of Miami, did ascertain and determine that the Petition, as amended and supplemented, for the Recall of the three (3) said Commissioners, did contain fifteen per cent (15%) of the registered voters of the City of Miami, according to the Registration Books."
The Court further decreed: "Issue being raised by the bill of complaint and answer that the said certificate was insufficient the court proceeded to consider the registration books of the City of Miami and other testimony and proofs offered in evidence, and finds in effect that, by virtue of specified ordinances of the city, stated "registration books for the" precincts of the city, called "Poll Books," together with the original badly worn books of registration, are in fact the "city registration books" under the statute; and that as such, the so-called "Poll Books" into which the names of the original registrations were transcribed by authority of ordinance No. 536, and subsequent
registrations of voters added thereto, have been kept substantially as contemplated by the city charter and ordinances and statutes made a part of the city charter. See decree with findings of the court in the statement filed herewith.
The City Clerk, Mr. Kelly, as a witness identified registration books of 1925 and subsequent books called precinct "poll lists" or "poll books" as being "a part of the registration system of the City of Miami, Florida." The books were admitted in evidence over the objection of counsel for the defendant City Commission.
He testified:
"As registration certificates are issued from the City Clerk's office as ex-officio Supervisor of Registration, or in the precincts under deputy supervisors, the duplicate of that registration certificate is kept in a bad form, and returned to the Clerk's office if it is in the precinct, or retained there if the registrations are in the City Clerk's office. From those duplicate certificates cards are made containing identically the same information as is on that registration certificate. Those cards are then assembled in alphabetical order according to precincts, and then transcribed into these poll lists, which are sent to the precincts on election day for the conduction of elections. * * *
"Q. (By Mr. Hall) Mr. Kelly, are these transcribed registration books which you have termed poll lists in substance the same and identically prepared as the other poll books within the City of Miami, and do the others conform to the original registration of names the same as you have testified that these do?
"Mr. Giblin: I object to the question as incorporating therein a characterization of the poll lists as registration books.
"The Court: The objection is overruled.
"The Witness: Yes. * * *
"Q. Do those poll lists accurately reflect the registered voters within the City of Miami today?
" A. Yes.
"Mr. Brigham: I object to that question, if your Honor please; it is not shown that the witness is qualified to answer; it is a conclusion of this witness; it is not shown that the books inquired about were made under his supervision, direction or control.
"The Court: Overruled.
"The Witness: My answer was yes."
The decree contains the following:
"The Court finds that Frank J. Kelly, as Clerk, in the exercise of his quasi judicial duties, as provided by the Charter of the City of Miami, did ascertain and determine that the Petition, as amended and supplemented, for the Recall of the three (3) said Commissioners, did contain fifteen per cent (15%) of the registered voters of the City of Miami, according to the Registration Books and that he would have delivered said Certificate so made to the City Commission had he not been prevented from so doing by matters over which he had no control."
The decree also finds that:
"The transcribed Registration Books or `Poll Books,' were purged by the Clerk from time to time as it came to his knowledge that the name of an elector should be removed therefrom. The Court further finds that said transcribed `Registration Books,' commonly called the `Poll Books,' correctly and accurately reflect the registered voters of the City of Miami.
"The Court further finds that the Transcribed Registration Books, called the "Poll Books." reflect as accurate a list of the registered voters of Miami as could be ascertained if the books in which the voters signed their names were purged * * *."
There is ample evidence in the record to support the essential findings and decree of the trial court including the finding in effect that the conduct of the three City Commissioners is "tantamount to a failure and refusal to call" the recall election.
So it appears from the findings and decree and the record in this case, (which did not appear in the record of the prior cases above referred to) that the certificate of the City Clerk as made stating in effect that the recall petitions had been signed by at least fifteen per cent (15%) of the total number of the registered voters of the City of Miami as shown by the city registration books, has by the Circuit Court been in effect adjudged to be a correct and legal certificate to be made under the charter statute. And as the findings and decree of the trial court, supported by evidence in this case, are determinative of the main issues of fact in controversy, it is not necessary to discuss in detail particular contentions that are controlled by the adjudication of the main issue of fact that is here affirmed.
The decree appealed from is affirmed and the cause is remanded for appropriate proceedings including the ordering of a recall election to be held in due course of law.
TERRELL, C.J., and WHITFIELD, and CHAPMAN, J.J., concur.
BROWN and THOMAS, J.J., concur in part and dissent in part.