Opinion
October 17, 1952.
Appeal from the Circuit Court, Collier County, Lynn Gerald, J.
Henderson, Franklin, Starnes Holt, Fort Myers, and Walter G. Sorokoty, Naples, for appellants.
C. Farris Bryant, Ocala, and Norwood R. Strayhorn, Fort Myers, for appellee.
This suit involves an election contest for the nomination of Sheriff by the Democratic Party in Collier County as a result of the Second Primary Election held on May 27, 1952.
The first count of the votes showed that Whatley received 11 more votes than his opponent, Thorp. When the Canvassing Board met, there were 47 absentee ballots which were counted in addition to the original ballots. The result of counting the absentee ballots together with the other ballots gave Thorp a majority of 32 votes over Whatley and Thorp received the certificate of nomination and was declared to be the Democratic Nominee for Sheriff of Collier County.
As originally framed, the bill contained several grounds of contest. Depositions were taken and affidavits filed and thereupon the plaintiff filed a motion for summary final decree in which he abandoned all questions except that there was no material issue of fact to defeat claim of plaintiff, Whatley, for relief because "none (or at least an insufficient number) of absent electors" left with the defendant supervisor either a formal or informal written application for ballot before obtaining their ballots from the supervisor.
As shown by the record or admitted by the pleadings, every elector who voted an absentee ballot was a qualified elector and would have been entitled to vote had such elector appeared at the polls on election day. There is no question of fact or controversy as to the manner in which the request for absentee ballots were presented to the supervisor or in the procedure followed by the supervisor. There is no question of fraud. There is no dispute as to the following facts: (1) 7 electors called at the office of the supervisor in person and requested documents for absentee voting. Thy received such documents from the supervisor, filled out the application blank, marked the ballot and delivered the application blank and ballot to the supervisor; (2) 8 written requests were received by the supervisor and the originals were forwarded to this Court and have been inspected. These written requests appear to have been in the handwriting of the electors. They followed no fixed form or pattern. Examples are: "I should like to make application for absentee ballot for election — Thank you"; "Please send me my absentee ballot and one to Richard at, 1st Lt. Richard M. Smith, A0223128 — c/o Postmaster, New York, New York. I am enclosing three Airmail stamps for Richard's"; "Dear Mr. Luther, Will you kindly mail my absentee ballot for the 27th election as I find I must be away at that date"; "Dear Mr. Luther, Would you please send me an absentee ballot so that I may vote in the Second Primary? I forgot to pick one up when I was home this weekend". The supervisor (according to his affidavit, undisputed) treated such requests as applications for the printed application blanks and he mailed to the electors formal printed application blanks together with the absentee ballots. The electors executed the application blanks, marked the ballots and returned the applications and the ballots to the supervisor; (3) other persons went to the office of the supervisor and requested papers to vote absentee ballots. He checked and found that such persons were qualified electors and gave them application blanks and absentee ballots. The application blanks required acknowledgment before a Notary Public and as the supervisor was not a Notary, such electors took the application blanks and ballots out of his office, executed the application blanks, marked the ballots, placed the ballots in the covering envelopes and delivered the ballots to the supervisor, together with the application blanks duly executed before a Notary Public. In each case only a few minutes elapsed between the time the supervisor delivered the documents to the elector and when the elector returned and filed the same with the supervisor; (4) 25 other persons made requests for application blanks and absentee ballots as follows, 5 married women made requests through their husbands, 8 made requests by long distance telephone, others simply called at the office, requested application blanks and absentee ballots and were delivered such papers, and the electors carried such papers away and thereafter returned them by mail, properly executed, 6 others, after having first contacted the supervisor and inquiring about procedure, sent messengers to the supervisor requesting application blanks and ballots.
A few of the absentee ballots were found not to be properly marked or the application blanks were irregular in some particular and in each case such ballots were not counted.
In each instance where ballots were counted the formal printed application blank for absentee ballot and the proper ballot was delivered to each of the electors and the application blank duly and properly executed with a properly marked ballot was delivered to the supervisor and the ballots were canvassed by the Canvassing Board, found to be legal and were counted. 47 such ballots were canvassed and counted.
We have inspected photostatic copies of the application blanks provided for by Section 101.62, Florida Statutes, F.S.A., and the envelopes with the form on the back provided for by Section 101.64, Florida Statutes, F.S.A., with reference to the absentee ballots actually counted and we find the application blanks and the form on the back of the envelopes to be properly executed as provided by law. These forms and documents are essential safeguards in guaranteeing the purity of the ballot.
After consideration of the affidavits, depositions, pleadings and argument of counsel, the Chancellor entered a summary final decree, the important part of which is as follows:
"The Court is of the opinion and so rules that all absentee ballots are invalid for which the voter did not have first in the office of the Supervisor, or in the hands of the Supervisor, either a formal, or informal written application therefor before the obtaining by the voter of his absentee ballot.
"The Court is further of the opinion that when the voter by such informal written request as is permitted by Sec. 101.62 seeks to obtain a ballot, then the voter in such informal written request must give one of the two statutory reasons for requiring an absentee ballot as specified in Sec. 101.61 and also included in the form given in 101.62."
From this final decree the defendants below, appellants here, have appealed. Two questions are propounded as follows: (1) Does Section 101.62, Florida Statutes 1951, F.S.A., require an elector to file written application for ballot with supervisor before receiving ballot?, and (2) Does Section 101.62, Florida Statutes 1951, F.S.A., require an informal written request from elector to contain statutory reasons for obtaining an absentee ballot?
These questions require a careful analysis of pertinent parts of the law with reference to absentee voting. Section 101.61, F.S.A., defines an absentee elector and reads as follows:
"The term absent elector shall mean any registered and qualified elector * * * wherever he may be, * * * so long as he will not be in the county of his residence during the hours the polls are open for voting on the day of any election. Such person may cast an absentee ballot upon compliance with the absent elector provisions of this code."
Section 101.62, F.S.A., reads as follows:
"At any time during the forty-five days preceding any election any elector intending to be absent on the day of election from his home county may make application to the county supervisor either in person or by mail, upon a blank furnished by the supervisor for the official ballot to be voted at such election. The application may be made on a blank prepared by the elector if the application is substantially in the form required by this code. When any written request of an elector for an absentee ballot sets forth statutory grounds for making application for such ballot it shall be accepted as a bona fide application if the signature on the application agrees with the elector's signature on the registration books. The application blank shall be sent immediately, by mail, to the absent elector by the supervisor, together with the absentee ballot if they are ready for distribution or shall be delivered to the obsent elector upon personal application at the supervisor's office. The application blank shall be in substantially the following form, and signed by the applicant and witnessed as required under this code.
"Application for absent elector's ballot.
"I, ____, duly qualified and registered as a (party) ____ elector of the _________ precinct of the county of ____ and State of Florida, and a ________________, (give occupation) not confined to prison on or jail, and intending to be absent from the said county on the day for holding such election because (check appropriate reason):
"(1) — I am physically disabled and unable without the assistance of another to attend the polls on election day. "(2) — I intend to be absent from the county during the entire period the polls are open for voting on the day of election and cannot without manifest inconvenience vote in person, I hereby make application for an official ballot, or ballots, to be voted by me at the election to be held in ____ on ________ (date)
"Send `absent elector's ballot' to me at ____ post office, county, city address, if any ____ Home address of applicant ____ Date ____ "In witness whereof I have hereunto set my hand and seal this the ____ day of ____ 19__
"Signed and sealed in presence of:
"(Two witnesses)
_________________ _______________ (Seal) Signature of absent Elector
______________ "Sworn to and subscribed before me "My commission expires
__________________ (Seal) Notary Public or other officer authorized to administer oaths.
"In primary elections, the supervisor of registration will supply the elector with the ballot of the party in which he is registered and no others." (Emphasis supplied.)
Section 101.64, F.S.A., provides for the method of voting an absentee ballot in person with the supervisor of registration or for mailing the ballot where the elector does not vote in person, and provides for sending two envelopes to the elector. This section also provides the form of the declaration to be signed by the elector in the presence of two witnesses across the back of the envelope to be mailed to the supervisor of registration.
Section 101.65, F.S.A., provides for giving detailed instructions to the elector as to what he shall do.
As admitted and shown by the record, Section 101.64 and Section 101.65, F.S.A., were complied with by the supervisor and by each elector.
We have had absentee voting laws since 1917 except for a period of time when the law was declared to be unconstitutional. Chapter 7380 of Laws of Florida 1917 and Chapter 11824, Laws of Florida 1927, were codified and contained in Chapter 101, Florida Statutes 1941, F.S.A. Chapter 25385, Laws of Florida 1949, became Chapter 101, Florida Statutes.
Section 101.02 of the 1949 Florida Statutes set up a procedure for making application for absentee ballot. This section is as follows:
"Such application blank, shall, upon request therefor, be immediately sent by such county supervisor of registration to said absent voter by mail or shall be delivered to said voter upon application made personally at the office of such supervisor of registration."
In 1951, by the enactment of Chapter 26870, there was a complete revision and recodification of the election laws including absentee ballots and applications therefor for primary elections. Section 101.62, F.S., F.S.A., is entirely different from Section 101.02, F.S. and contained in the Acts of 1949. The latter Statute, Section 101.62, expressly requires the supervisor, upon the personal application of an elector at a certain time to deliver to the elector not only the application blank but the absentee ballot. The language:
"The application blank shall be sent immediately, by mail, to the absent elector by the supervisor, together with the absentee ballot if they are ready for distribution or shall be delivered to the absent elector upon personal application at the supervisor's office." (Emphasis supplied.)
In amending a statute or recodifying the laws upon a given statute the Legislature does not add to or take from except for a purpose. The recodification of the laws with reference to absentee voting had a two-fold purpose; first, to preserve the purity of the ballot; and second, to afford an opportunity to qualified electors to cast a ballot even though they may be absent from the county, the state or the nation on the day of the election.
Much history has been written and much water has "run over the dam" since the enactment of the first absentee voting law. At the time the 1951 Legislature recodified the laws with reference to absentee voting, multiplied thousands of voters from the State of Florida were scattered to the four winds of the world, most of them serving their country at great sacrifice, and it was impractical if not impossible for them to cast absentee ballots in the elections held in Florida under the laws as they existed in 1949. It was the purpose and intent of the Legislature to provide a more practical method of obtaining and casting an absentee ballot and at the same time preserve the purity of the ballot.
In the case of State ex rel. Titus v. Peacock, 125 Fla. 810, 170 So. 309, this Court said:
"* * * It is impliedly admitted on the record that all of the votes cast by absentees under chapter 16986, supra [F.S.A. § 101.07 note], were cast by persons who, had they personally appeared at the polls on election day, would have been entitled to vote. * * *
"The rule is general that, if ballots have been cast by voters who were, at the time, qualified to cast them, and such voters had at the time done all on their part that the law required the voters to do to make their voting effective, an erroneous or even unlawful handling of the ballots by the election officers charged with such responsibility will not be held to have disfranchised such voters by throwing out their votes on account of erroneous procedure had solely by the election officers, provided the votes were legal votes in their inception, and are still capable of being given proper effect as such. * * *
"In the present case, however, there is no contention that the originally unchallenged votes herein sought to be disregarded on a collateral attack against the same launched long after the election are illegal votes in the sense that they were cast by persons not duly registered according to law, or by electors whose poll taxes were not duly paid so as to entitle them to vote, or by persons who were otherwise not entitled or disqualified to vote at the particular election."
In the case of Beebe v. Richardson, 156 Fla. 559, 23 So.2d 718, 719, this Court said:
"It is a familiar rule of statutory construction that a statute should be so construed and applied as to give effect to the evident legislative intent, even if the result seems contradictory to rules of construction and the strict letter of the statute. Payne v. Payne, 82 Fla. 219, 89 So. 538; Getzen v. Sumter County, 89 Fla. 45, 103 So. 104. In construing a statute, the legislative intent should be gleaned from the language of the statute, the subject sought to be regulated, the purpose to be accomplished, and the means adopted for accomplishing the purpose. State v. Rose, 93 Fla. 1018, 114 So. 373; State v. Sullivan, 95 Fla. 191, 116 So. 255. Where there is ambiguity and uncertainty in the meaning to be given the words employed in a statute, or where the context of a statute taken literally conflicts with a plain legislative intent clearly discernible, the context must yield to the legislative purpose, for otherwise the intent of the lawmakers would be defeated."
In the case of Attorney General ex rel. Miller v. Miller, 266 Mich. 127, 253 N.W. 241, 246, 106 A.L.R. 387, the questions presented claimed irregularities in the applications for absentee ballots. The trial judge made findings of fact which were approved by the appellate court, a part of which is as follows:
"There were 83 applications for absent voters' ballots, and they have all been offered in evidence. From an inspection of these applications it appears that there are a large number of irregularities in them. Some of them are not properly witnessed, and others do not disclose the reason for applying for them, in no case, however, does it appear from the record that any person, applying for an absent voter's ballot, was not entitled to receive one. No doubt, the requirements of the statute are mandatory, so far as they apply to the delivery of the ballot to the voter, and the return of the ballot to the clerk, after it has been voted. This provision has to do with the secrecy and purity of the ballot, but it may well be doubted, whether an irregularity in the filling out of the application would invalidate the ballot, unless it appeared that the voter was not entitled to receive the ballot."
In this case Chapter 101.62, Florida Statutes, F.S.A., actually makes provision for the things which were done. The statute specifically prescribes:
"The application blank shall be sent immediately, by mail, to the absent elector by the supervisor, together with the absentee ballot if they are ready for distribution or shall be delivered to the absent elector upon personal application at the supervisor's office." (Emphasis supplied.)
This section would be absurd if it meant that the application blank must first be sent to the elector and after he goes through all the formalities of filling it out, having it notarized and returned to the supervisor, that the supervisor should then send an absentee ballot. The purpose of this statute is to do away with such an unnecessary and complicated procedure. If the ballots are ready it is made the duty of the supervisor to send to the elector the application blank "immediately * * * together with the absentee ballot", or in the alternative, the supervisor shall deliver the ballot to the elector upon his personal application at the supervisor's office.
We do not find any irregularity in the request for application blanks or papers so that an absentee ballot could be voted, or in the mailing or delivery of such absentee ballots or application blanks, but even if there should be some irregularity beyond the control of a duly qualified elector by the supervisor, such irregularity was cured by subsequent events. The record in this case shows that every application blank and every absentee ballot was received by a duly qualified elector and was executed in the manner and form required by law and was canvassed and counted in the manner required by law. It was not mandatory that the person intending to vote an absentee ballot advise the supervisor in the first place that he was physically handicapped or would not be in the county on the day of election when he asked for all papers so that he could cast an absentee ballot. It was naturally and necessarily implied that he was doing so because of the existence of one of the statutory grounds which permitted the voting of an absentee ballot. When he filled out his application which was given to him or sent to him by the supervisor and swore to it with the solemnity required by law, it was then necessary that he show one of the statutory grounds which permitted the casting of an absentee ballot. If he failed to do so it was the duty of the election officials not to canvass or count his ballot. If he falsely swore to the information on the application for ballot, he could be prosecuted for perjury.
We, therefore, hold that Section 101.62, F.S., F.S.A., does not require a duly qualified elector to file written application for ballot with the supervisor of registration in order to receive a ballot and that the section does not require that an informal request from the elector to the supervisor for an absentee ballot to contain any of the statutory reasons which permit the casting of an absentee ballot.
Reversed with directions to dismiss the bill of complaint.
SEBRING, C.J., ROBERTS, J., and FABISINSKI, Associate Justice, concur.