
    Don PETIT and Tom Spencer, Petitioners, v. Tom ADAMS, Secretary of State of Florida; George T. Clark, Chuck Hall, and Martin Braterman, as and for the Dade County Canvassing Board, Respondents.
    No. 37475.
    Supreme Court of Florida.
    June 7, and 24, 1968.
    
      Robert L. Achor, Miami, for petitioners.
    William J. Roberts and Hal S. McClam-ma, Tallahassee, Thomas C. Britton, Miami, for respondents.
   PER CURIAM.

The petitioners here seek an alternative writ of mandamus from this Court directing the respondents who constitute the Dade County Canvassing Board pursuant to the provisions of Sections 102.166 and 102.-167, Florida Statutes 1967, F.S.A., to examine the counters on each voting machine used in the second primary election in Dade County, Florida and determine whether the returns correctly reflect the votes cast in the election for United States Senator in said County.

Serious questions have been raised concerning the jurisdiction of this Court to entertain these proceedings (see State ex rel. Wedgworth Farms, Inc. v. Thompson, Fla., 101 So.2d 381; State ex rel. Winton v. Town of Davie, Fla., 127 So.2d 671 and State ex rel. Clendinen v. Dekle, Fla., 173 So.2d 452) but it is apparent from the disclosures of the petition that it is the intention of the respondents constituting the Dade County Canvassing Board to erase the counters on all of said machines beginning at 5 o’clock p. m., Friday, June 7th, unless this Court directs otherwise. The erasure of such counters would render these proceedings moot and would in effect prevent this Court, in the event it determines it has jurisdiction, from the complete exercise thereof.

Upon consideration of the matter and pursuant to Article V, Section 4(2) which provides “the Supreme Court may issue all writs necessary or proper to the complete exercise of its jurisdiction”, the respondents in this cause are hereby directed to refrain from in any way erasing the results of said second primary election on any voting machine used therefor in Dade County, Florida until the further order of this Court.

This order shall become effective instanter and service thereof shall be made by telegram directed to each of the respondents herein and by telephone by the Clerk or Deputy Clerk of this Court. In addition thereto, the contents of this order shall be made known in the same manner to the petitioners herein and to the attorneys for all parties including Mr. Thomas Britton, the attorney for Dade County.

Further argument in this cause will be heard by this Court on the question of jurisdiction and the propriety of the issuance of the alternative writ on Wednesday, 12 June 1968, at 2:30. All parties are directed to have briefs ready for filing at said time. Thirty minutes to the side shall be allowed.

It is so ordered.

CALDWELL, C. J., and THOMAS, ROBERTS, DREW and ADAMS, JJ., concur.

THORNAL, J., dissents in part with opinion.

ERVIN, J., dissents and agrees with THORNAL, J.

THORNAL, Justice

(dissenting in part):

I am satisfied that the Supreme Court has no jurisdiction in the premises. Hence, I would not issue the foregoing order. The majority of the Court has decided that we do have jurisdiction to issue said order. That having been decided, I do not object to the conclusions of the order.

ERVIN, J., concurs.

AMENDMENT TO CONSTITUTIONAL WRIT

PER CURIAM.

Upon consideration of the petition to amend the petition for alternative writ to designate as additional respondents the Canvassing Boards of Alachua, Brevard, Broward, Duval, Hernando, Hillsborough, Lee, Leon, Manatee, Monroe, Orange, Palm Beach, Pinellas, Polk, Sarasota, Sumter and Volusia Counties, it is

Ordered that said petition to amend is granted and the individual members of the Canvassing Boards of each of the aforesaid Counties is hereby made a party respondent in this proceeding. It is further

Ordered that the order of this Court entered this day directing the Dade County Canvassing Board to refrain from in any way erasing the results of said second primary election from any voting machine used therefor in Dade County, Florida until the further order of this Court be and the same is hereby amended by including all of the Canvassing Boards of the aforementioned Counties in said order and each and every individual constituting said Canvassing Boards is hereby directed to observe the injunction of said order.

This order shall become effective instanter and shall be served by telegrams to the individual parties sent by the Clerk of this Court or under his direction.

It is so ordered.

CALDWELL, C. J., ROBERTS, DREW and ADAMS, JJ., concur.

THORNAL, J., dissents in part and concurs in part for reasons stated in original order entered this date.

PER CURIAM.

A petition for alternative writ of mandamus was filed in this Court June 6th against Tom Adams, Secretary of State of Florida; George T. Clark, Chuck Hall and Martin Braterman, as and for the Dade County Canvassing Board, seeking to compel the Dade County Canvassing Board to act upon the protest filed by the petitioners and to proceed in an orderly manner to recount the ballots cast in the primary election held on May 28, 1968. The relief sought against the respondent Tom Adams is that he, as Secretary of State, “be commanded to telephone each and every Supervisor of Registration or election and/or other representative of all County Canvassing Boards (which has previously [sic] not to accept a protest petition and request for recount) and advise said persons that he is without judicial authority to determine and advise them of the legal effect of Brake v. Gissendanner [Fla.App.], 206 So.2d 10, concerning the validity of protest petitions and request for recount filed under Chapter 102.166 and 102.167 F.S.A. where such petitions were filed in statutory form and within five days of midnight on May 28, 1968.” Obviously such relief against this constitutional officer would be not only improper but patently beyond the scope of mandamus.

In order to protect the complete exercise of the jurisiction of this Court in the premises in the event it determined it had jurisdiction under the Constitution to entertain these proceedings, an order was entered June 7th directing the respondent Dade County Canvassing Board to refrain from in any way erasing the results of said second primary election on any machine used therefor in Dade County, Florida until the further order of this Court. The Court on the same day granted a petition to amend the foregoing order by making the Canvassing Boards of Alachua, Brevard, Broward, Duval, Hernando, Hillsborough, Lee, Leon, Manatee, Monroe, Orange, Palm Beach, Pinellas, Polk, Sarasota, Sumter and Volu-sia Counties and the individual members thereof parties respondent. On the same day this Court entered its order enjoining the said additional Boards and the individual members thereof in said counties to observe the injunction of the previous Dade County order of June 7th until the further order of this Court. This cause was then set for argument on Wednesday, June 12th, and all parties were directed to file briefs on the question of jurisdiction and the propriety of the issuance of an alternative writ in this cause.

The matter has now been orally argued before the Court en banc and, upon consideration thereof, the Court finds that it does not have jurisdiction under Section 4 of Article V of the Florida Constitution, F.S.A. to entertain these proceedings against the County Canvassing Boards and County officers named. The foregoing section of the Constitution proscribes the jurisdiction of this Court in original mandamus proceedings to those cases “when a state officer, board, commission or other agency authorized to represent the public generally or a member of such board, commission or other agency is named as respondent.” That the Constitution may lawfully proscribe our jurisdiction is not even debatable. We have decided that numerous times. In 1961 in State ex rel. Winton v. Town of Davie, Fla., 127 So.2d 671, 673, in considering this provision of the organic law we said:

“ * * * Applying this rule we have the view that the series of officers and functionaries delineated in the provision which we have quoted, is modified in its entirety by the word ‘State’ so that the power of this Court to issue writs of quo warranto is limited to those situations when a State officer, or a State commission, or other State agency is the respondent. This construction, we think, is consistent with the overall objectives sought to be accomplished by amended Article V, and fits into the pattern of jurisdiction designed for this Court.”

No case has been called to our attention, nor do we know of any since the rendition of the decision in the above case, where this Court has entertained an original proceeding in mandamus against any officer or board except state officers and state boards as defined in that case.

It was suggested at the oral argument in this cause that unless this Court entertain jurisdiction of these proceedings the petitioner would be wholly without remedy. There is no basis for this assertion. The Constitution, Article V, Section 5 and Section 6, vests in the district courts of appeal and in the circuit courts respectively complete power to issue writs of mandamus in original proceedings without restriction. The relators, in their apparent haste to reach this Court, seem to have overlooked these constitutional remedies immediately available to them. We are without power to remedy their oversight. Cf. City of Dunedin v. Bense, 90 So.2d 300 (Fla.1956).

We have also considered the motion for leave to amend the petition filed shortly before the hearing on June 12th attempting to make as parties Tom Adams, as Secretary of State, Fred O. Dickinson, as Comptroller, and Doyle Conner, as Commissioner of Agriculture, as and constituting the Board of State Canvassers of the State of Florida, but we find no merit therein and such motion to amend is denied.

The principal relief sought in these proceedings is against county officers and, having determined that the Constitution prohibits our exercise of jurisdiction against them, we have no alternative except to vacate the two orders of June 7th heretofore referred to and to dismiss the petition and amended petition for alternative writ of mandamus.

It is so ordered.

THOMAS, DREW, THORNAL and ERVIN, JJ., concur.

ADAMS, J., dissents with opinion.

CALDWELL, C. J., and ROBERTS, J., dissent and concur with ADAMS, J.

ADAMS, Justice

(dissenting).

The majority opinion disposes of the matter by refusing to exercise the jurisdiction of this court, and therefore does not reach the merits of the controversy. To this, I cannot agree.

The petitioners filed a petition for an alternative writ of mandamus, naming Tom Adams as Secretary of State of the State of Florida, and others, as respondents. The Secretary appeared in the case and promptly filed his motion to dismiss the petition for alternative writ, later appearing by counsel and making oral argument in support of his motions.

Section 15.13, Florida Statutes, F.S.A., provides:

“The secretary of state shall have general supervision and administration of the election laws, corporation laws and such other laws as are placed under his office by the legislature and shall keep records of same.”

The Secretary of State not only appeared and is participating in the litigation here, but according to the record had been previously participating in the controversy in his capacity as administrator of the election laws under Section 15.13, Florida Statutes, F.S.A.

Section 4(2), Article V, Constitution of Florida, among other things, provides:

“JURISDICTION. * * *
“The supreme court may issue writs of mandamus and quo warranto when a state officer, board, commission, or other agency authorized to represent the public generally, or a member of any such board, commission, or other agency, is named as respondent, * * * ” (Emphasis added.)

Further, the members of the County Canvassing Board were also made respondents. Section 4(2), Article V, supra, also gives this court jurisdiction to issue writs of mandamus against an “agency authorized to represent the public generally.” It appears academic to me that the County Canvassing Board is an agency authorized to represent the public and, therefore, that that additional reason would have jurisdiction.

Section 4, Declaration of Rights, of the Florida Constitution provides:

“All courts in this state shall be open, so that every person for any injury done him in his lands, goods, person or reputation shall have remedy, by due course of law, and right and justice shall be administered without sale, denial or delay.” (Emphasis added.)

It is therefore my inescapable conclusion that the Secretary of State is a state officer, and was and is indeed a proper party, and perhaps a necessary party, in the litigation; further, that he was made a party and has been actively participating. This being true, under Section 4(2), Article V, Constitution of Florida, the jurisdiction is automatic.

Prior to July 1, 1957, there could be no possible question as to the jurisdiction of this court to entertain such a matter. If the 1956 amendment — and I think it did not — rendered this court sterile in the handling of a situation of this kind, it is time for the Legislature to re-examine Article V (the Judiciary article) of the Florida Constitution.

In my opinion, the court should issue the alternative writ, thereby providing an opportunity to all respondents to plead their defenses, after which this court should dispose of the matter on the merits, under the guarantee of an open court as provided in Section 4, Declaration of Rights. A majority of the court having now refused to accept the jurisdiction, the merits of the controversy remain undisposed of and the dials of the voting machines will soon be re^ turned to “zero” and the evidence of whatever errors lie behind the sealed doors of the machines must become forever lost.

It is difficult to see how respondents could be lawfully harmed by, or why they would object to, a simple re-reading of the dials on the voting machines in order to check them against human error, because, after all, that is all that is sought in this litigation.

I therefore respectfully dissent.

CALDWELL, C. J., and ROBERTS, J., concur.  