State ex rel. Clark v. Klingensmith | Cases | Westlaw

A proceeding under section 5447, C. G. L., supra, is in effect nothing more than a statutory election contest in the form of a quo warranto proceeding wherein the relator is the real claimant and the respondent, as putative holder of the official title to the office in controversy, is defendant. It is therefore incumbent upon the claimant in such a proceeding to set out in his own pleading, with sufficient certainty, such facts as will prima facie demonstrate to the court that the candidate who was declared elected, and who received the certificate of election from the proper authorities, should be ousted in favor of claimant, because of a clear legal right to the office shown to exist in such claimant but wrongfully denied to him through the issuance of a certificate of election or official commission to his adversary. 20 Corpus Juris, 277, and authorities cited.

Illegal votes do not invalidate legal votes when the number of the former is ascertained. State ex rel. McClenny v. Com'rs of Baker County, 22 Fla. 29. Nor is the rejection of votes from legal voters, not brought about by fraud, *300 and not of such magnitude as to demonstrate that a free expression of the popular will has been suppressed, sufficient to avoid an election, at least unless it be shown that the votes rejected would have changed the result. Pickett v. Russell, 42 Fla. 116, 28 So. 764.

In a statutory quo warranto proceeding under section 5447, C. G. L., supra, where the relator has knowledge or reliable information as to illegal or erroneous voting, as to counts and returns of ballots cast in an election, which, if duly alleged, would be sufficient to constitute a ground for declaring the relator elected and for adjudging ouster against the respondent in relator's favor, a recount by mandamus proceedings is not a prerequisite to the maintenance of the proceeding in quo warranto; the statutory proceeding in quo warranto being analogous in purpose to the ordinary statutory election contest. See Farmer v. Carson, 110 Fla. 245, 148 So. 557. But the information in quo warranto must tender a justiciable controversy on its face, and the burden is on the relator not only to demonstrate by his allegations and proof that respondent was not elected, but that relator himself was the candidate lawfully chosen by the voters for the office in dispute.

The information filed in this case is prima facie sufficient to require an answer or reply, therefore the motion to quash same is overruled on the authority of Farmer v. Carson, supra. The motions to strike portions of said information are severally denied for the reason that the matters sought to be stricken are inseparable parts of the general issue tendered in the information as a whole, and are therefore not wholly immaterial or irrelevant.