State ex rel. Pooser v. Wester | Cases | Westlaw

A majority of the court do not think it necessary to answer the latter question in this proceeding. It is not out of place to state, however, that under our practice, quo warranto is a remedial as well as a prerogative writ, and that this court will not refuse to extend its use on proper showing made. In State ex rel. Watkins v. Fernandez, 106 Fla. 779, 143 So. 638, and State ex rel. Bauder v. Markle, 107 Fla. 742, 142 So. 822, we reviewed many instances in which the common-law writ of quo warranto had been extended and employed for purposes other than for which it was originally conceived.

In the latter case, we permitted its use to test the claim of Bauder to a ‘liberty’ or ‘quasi official right,’ and in State ex rel. Watkins v. Fernandez, we permitted its use to test the right to nomination for office in a primary election. We permitted its use in both these cases on the theory that the law will not permit a wrong to go without a remedy, which principle was reincorporated in section 4, Declaration of Rights, Constitution of Florida. One of the high prerogatives of a court of justice is to keep this principle of the law dynamic by construing it to provide a remedy for every new wrong that arises. The test of whether or not old remedies will be extended to the wrongs that constantly arise from new conditions is not what the remedy extended to in the time of Edward the First or George the Third, but whether or not the one complaining has suffered an injury **738 in his ‘lands, goods, person, or reputation’ that should in right and justice be atoned for. If this is not the rule, then *52 the equitable maxim and section 4 of the Declaration of Rights are nothing more than a gesture and had as well be consigned to the pictograph corner in the museum along with the Code of Hammurabi and the tablets that Moses brought down from the mountain.

The doctrine of these cases is generally approved in this county and it is well settled that when the enforcement *53 of a public right is sought, the people are the real party to the cause. The relator need not show that he has any real or personal interest in it. It is enough that he is a citizen and interested in having the law upheld, but this, like all other rules of law has its limitations.

Under the law as thus stated, every person who voted without having registered and paid his poll tax was an illegal voter and had no right to present himself at the polls for that purpose. It is absurd and ridiculous to contend that a candidate or a citizen has no right to relief in the face of such flagrant violation of the law. We are of the view, however, that he who seeks to correct such violations must move against them seasonably and appropriately.

This court is committed to the doctrine that extraordinary relief will not be granted in case where it plainly appears **739 that although the complaining party may be ordinarily entitled to it, if the granting of such relief in the particular case will result in confusion and disorder and will produce an injury to the public which outweights the individual right of the complainant to have the relief he seeks. Bronson v. Board of Public Instruction of Osceola County, 108 Fla. 1, 145 So. 833; Gwynn v. Hardee, 92 Fla. 543, 110 So. 343.

This rule is particularly applicable to the facts in this case. Relators waited more than four months to seek relief; at the time the information was filed, the general election in which the nominees were required to be voted for was less than a month in the future; they do not allege that they are affected except as every other citizen if affected; it is not alleged that the illegal votes cast can be segregated from the legal ones, and if they could, that when counted, the result of the election would be changed. It is not alleged that one of the respondents had any part in the illegal voting or even knew of it; no reason is assigned for the delay in moving against it, and in fact we see nothing that could result but confusion and disorder.

In fine, nothing is relied on to vitiate the elections except *55 that some illegal votes were cast. The rule is settled in this state that where an election is otherwise valid, it will not be held void because illegal votes were cast. It must be shown that the illegal votes will change the result of the election. State ex rel. McClenny v. County Commissioners of Baker County, 22 Fla. 29; State ex rel. Clark v. Klingensmith, 121 Fla. 297, 163 So. 704. It is entirely possible that a recount of all the legal votes cast would show no change in the result whatever. It is not alleged that it would nor is it alleged that there was any attempt to suppress or thwart the popular will.