In the case of McGregor v. Burnett, 105 Fla. 447, 141 South. Rep. 599, the Court seemingly held that a chancery court had jurisdiction by injunction upon a bill filed by a resident voter, and taxpayer charging "fraud or corruption" to restrain an illegal action by a county official which would "corrupt the ballot and destroy its purity." The language *Page 836 of the Court was: "that, in cases where fraud or other palpable violation of the registration or election laws is charged prior to an election, any elector is entitled to his relief by injunction or such other appropriate remedy as is available to him under the law."
The complainant in that case sought an injunction to restrain certain acts of the Tax Collector in the matter of receiving money for poll taxes and issuing receipts therefor. This Court proceeded to discuss the sufficiency of the allegations of the bill and held that because "No charge of fraud or corruption is involved" the decree dissolving a temporary restraining order and sustaining a demurrer to the bill should be affirmed.
In this departure from the generally accepted rule that the right of suffrage being political in character its assertion and protection are not properly matters for the cognizance of courts of equity, this Court presumably acted with its customary care after due consideration. No distinctions were made between those acts of "fraud or other palpable violation of the registration or election laws," which may have occurred before the day of election and those which may occur on election day. Nor was any explanation made of the phrase "prior to an election."
I do not conceive the word "election," as used in the statutes regulating elections, to mean that particular phase of the political procedure by which a person is chosen for office, commonly referred to as voting or depositing a ballot in a ballot box. The election is the entire procedure from the preparation of the voting lists to the certification of the result. I therefore interpret the language of the opinion to mean that "any act of fraud or corruption" having for its purpose the corruption of the ballot or destruction of its purity would be enjoined upon bill filed by a resident voter and taxpayer, whether the alleged act of "corruption or fraud" occurred before the day fixed *Page 837 by law for depositing ballots or whether they occurred on that day or even after that day and before the certification of the result, the election completed.
It is quite generally conceded to be the rule that the right of suffrage is a political right as distinguished from a civil right and that the assertion and protection of a political right is not a matter properly for the cognizance of a court of equity for the subject of the jurisdiction of such courts is civil property and they are not concerned with the maintenance of purely political rights where no civil or property right is involved. See 9 R. C. L. 987, 1001, and cases cited; Walls v. Brundidge, 109 Ark. 240,160 S.W. Rep. 230, Ann. Cas. 1915C, 980 n; 14 R. C. L. 375; Fletcher vs. Tuttle, 151 Ill. 41, 37 N.E. Rep. 683, 42 A.S.R. 220, 25 L.R.A. 143; 4 Pomeroy's Eq. Jurisprudence (4 Ed.) 4067, Sec. 1753.
It has been held that courts are without power to direct what instructions shall be given to voters as to marking ballots and to issue a restraining order prohibiting the commissioners from giving instructions inconsistent with those directed. Commonwealth v. Mercer, 190 Pa. 134, 42 Atl. Rep. 525.
In view of the language used in the McGregor-Burnett case,supra, I am inclined to the view that while no injunction would lie to direct or to control the manner of holding an election, or to restrain the sheriff or other officers of an election from doing a threatened act in connection with the manner of conducting the voting or counting of ballots, an injunction would lie to restrain the members of a conspiracy, consisting of the sheriff and election officers, to corrupt the ballot and destroy its purity where appropriate allegations are made in the bill to charge the existence of the conspiracy and its fraudulent and corrupt purpose.
I have read the bill as carefully as the few hours available *Page 838 would permit, but I find no such allegation as to the balloting which is to take place tomorrow, or the manner of conducting the voting. I think therefore that the writ of prohibition should issue. I am authorized to state that Mr. Justice Brown concurs in the above view.
BROWN, J., concurs.