I am unable to agree with the majority opinion in this case for two reasons. I think that the provision of the City Charter as quoted in the majority opinion, 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," if construed as intending to vest power in the Circuit Court under the conditions mentioned, to order, direct and supervise the contemplated recall election as and in lieu of the City Commission, violates Article II of the Constitution, which provides as follows: *Page 803
"The powers of the government of the State of Florida shall be divided into three departments; Legislative, Executive and Judicial; and no person properly belonging to one of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by this Constitution."
I am unable to agree that the holding in the majority opinion does not conflict with decisions in Joughin v. Parks, 107 Fla. 833, 147 So. 273; State v. Duval County, 76 Fla. 180, 79 So. 692; Fla. Motor Lines, Inc., v. R.R. Com's, 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 the Joughin case we held:
"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 v. Sumter County, 60 Fla. 328, and cases cited.
"The rule in this State was only modified in the recent case of McGregor v. 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. *Page 804
"The Constitution provides (Section 9, Article VI) that the Legislature 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."
I do not think that the provisions of the Constitution may be evaded by the judiciary under the guise of performing administrative functions in the exercise of equity jurisdiction. There is to my mind a vast difference between the power of courts to require administrative officers to perform their duties and the attempted exercise of the power by courts to perform administrative functions in lieu of and in the manner provided by law for the exercise of those functions by administrative officers.
To protect the sanctity of and enforce adherence to this provision of the Constitution is peculiarly the province of the judiciary and, therefore, the judiciary is peculiarly charged with its faithful observance.
I am also unable to find in the record any substantial evidence to support the finding that the recall petitions involved contain the names of 15% of the qualified registered voters of the City of Miami as shown by the registration books. As I read the record, no one has testified to such a state of facts. No one has testified that the recall petitions contain 15% of the names of the qualified registered voters of Miami, as shown by the registration books. Mr. Kelly, whose testimony in all these cases has reflected a commendable honesty of purpose, has testified that he believes the petitions contain the requisite number of names, but he testified that he had not ascertained that to be a fact. He testified *Page 805 that it was his purpose to determine whether or not such was a fact by using the poll list and the registration books, but that he had not been given time or opportunity to do so. He did not say the registration books could not be purged so that they would reflect the truth in this regard. The evidence in this regard is reflected by the record, in questions and answers as follows:
"Q. Now between July 10th and July 11th, what had you done toward purging the registration books?
"A. On July 11th — on the morning of July 11th I had taken the card indexes and was preparing to break those down into precincts. They were in alphabetical arrangement. I was preparing to break them down when I was called into the Commission Room and discharged.
"Q. Did you strike any names from the registration books?
"A. No.
"Q. You had not commenced your purge at that time; is that correct?
"A. No; I have never stricken anything from it; that is, subsequent to that time.
"Mr. Hall: Just a minute. I object to the question and move to strike the answer of the witness until it is shown to the witness what registration books the Attorney is inquiring about.
"Mr. Brigham: At the commencement of the cross examination counsel announced, so there would be no misinterpretation of his questions, that the books were the ones in which the registrant signed his name and took the oath.
"Mr. Hall: With that statement, if it is agreeable to counsel —
"Mr. Sibley: Just a minute. The ones which the Supreme Court of Florida designated as the registration books and said should be purged. *Page 806
"Mr. Hall: The objection is withdrawn.
"Q. (By Mr. Sibley) Now, had you commenced to purge the registration books and strike names from the registration books after the constitutional writ was dissolved?
"A. I was preparing to, yes.
"Q. You were preparing to strike names from the registration books; is that correct?
"A. Yes.
"Q. Has that purge ever been completed, as far as you know?
"A. No.
"Q. Now you said that it would be a tremendous task to purge the registration books under Ordinance No. 536; on direct examination you made that statement, didn't you?
"A. Yes, uh-huh.
"Q. I believe that is the exact language Mr. Bloodworth used when the papers quoted him, wasn't it; that it was a tremendous task? Do you recall that?
"Mr. Hall: We object to that.
"Mr. Sibley: Withdraw the question.
"Q. (By Mr. Sibley) How long do you estimate it would take you to purge the books in accordance with Ordinance No. 536?
"A. I never made any estimate.
"Q. It would take a long time, wouldn't it?
"A. Yes.
"Q. Would it take three or four or five months?
"A. As I say, I have never made any estimate, and until I would actually engage in the work, would not say, and I never engaged in the work.
"Q. You do know it would take a long time?
"A. Yes, that is my opinion of it.
"Q. And can you tell me what you mean by `a long time'? *Page 807
"A. No.
"Q. It is an indefinite period that may run into a number of months; is that correct?
"A. I say I have made no estimate whatever.
"Q. Now, it is alleged in this bill of complaint that you are now ready to deliver a certificate to the City Commission of the sufficiency of the amended petition. Is that true, or is that untrue?
"A. That is not my bill of complaint.
"Q. I know it is not your bill of complaint. Will you answer the question, please sir?
"A. That I was about to deliver a certificate?
"Q. Or that you are ready to deliver a certificate.
"A. No, I could not say that I was about to deliver the certificate until the purging had been accomplished.
"Q. And are you ready now to deliver a certificate of the sufficiency?
"A. I am not in position to do it now. I have been removed again.
"Q. If you were in office, would you now be ready to deliver a certificate?
"A. No, not at once.
"Q. You would first have to purge the registration books, wouldn't you?
"A. That is my understanding.
"Q. Beg pardon?
"A. That is my understanding." * * *
"Q. Now, you are not at the present time ready or willing, if you were Clerk, or if you are Clerk, to submit to the City Commission a certificate of sufficiency of the recall petition; is that correct?
"A. No, I am not."
Shall courts abandon the search for truth because to ascertain it will entail considerable work and some delay? *Page 808 Is political expediency to overthrow legal rights and prevail over established legal principles in the courts of our country? I shall continue to hope that neither question is ever to be answered in the affirmative.
The record conclusively shows that the so-called poll list was taken and made up from the card indexes heretofore referred to in opinions rendered by this Court in cases involving this proposed recall election and that the poll list was not taken from and is in no manner a transcription of the registration books of the City of Miami. There is no evidence that the poll list is a true and correct list of the qualified registered voters of the City of Miami but the record affirmatively shows that it is not a true list of the qualified registered voters of that municipality and that it is only a list made up from time to time from the card index system and has been used in the holding of elections in connection with the registration books to facilitate the holding of the elections and the undisputed evidence is that in cases where an elector appeared at the voting place and applied for the privilege of voting the inspectors first looked to the poll list to see if his name was carried on that but if it was not found there, they then turned to the official record of registration and if his name was found on the registration book he was held to be a qualified registered voter.
I fully appreciate the fact that this is a controversy which should be settled once and for all time and that the proponents of the recall have certain rights but those are rights created by statute and, unless the conditions prescribed in the statute are met, the rights do not accrue.
ON PETITION FOR REHEARING