Opinion
December 7, 1951. Rehearing Denied January 15, 1952.
Appeal from the Circuit Court, Volusia County, H.B. Frederick, J.
Thomas T. Cobb, John R. Parkinson, William A. Spence, C.A. Vincent, Jr., and Frank Pyle, all of Daytona Beach, for petitioners.
Hull, Landis, Graham French, John L. Graham and Erskine W. Landis, all of De Land, for respondent.
In September 1951, respondent filed his bill of complaint in the Circuit Court seeking to restrain the holding of an election to recall him as Mayor-Commissioner of the City of Daytona Beach. The ground of his complaint was that the affidavit filed with the City Clerk to initiate the recall election was insufficient, in that it set up no legal grounds for his recall. Petitioners answered the bill defending the legal sufficiency of the charges against respondent. A motion to dismiss the bill was also filed. The chancellor granted a temporary injunction restraining the holding of the recall election and denied the motion to dismiss. Petitioners appealed by certiorari from that part of the chancellor's decree granting the temporary restraining order.
Since the motion to dismiss the bill of complaint was overruled and appeal was taken from the order granting the temporary injunction, the only question before us is error vel non in granting the temporary restraining order. The answer to this question would necessarily turn on the sufficiency of the grounds for recall but a majority of this court have reached the conclusion that respondent has waived his right and is now estopped to raise the question.
The affidavit initiating the recall was filed July 27, 1951. August 2, 1951, a petition signed by 578 registered voters in Zone 2 (respondent's zone) demanding his recall was presented to the City Clerk. August 6, 1951, the City Clerk certified to the City Commission that the petition was signed by the required number of qualified electors residing in Zone 2. August 11, 1951, the City Attorney had incorporated in the minutes of the City Commission the following signed statement by respondent:
"The result of the attempts on the part of Dr. Long and myself to resign is that Daytona Beach has been thrown into a state of chaos. At a time when the City must complete and adopt a budget; at a time when a grave responsibility of the City Government to secure its share of cigarette taxes rests on its officers, I am compelled to do that which is necessary to correct the unforeseen results of my attempted resignation.
"Legally my offer to resign was clearly not accepted in the eyes of the law, and I have the right to withdraw it before it is adopted in a lawful manner. I, therefore, have determined to withdraw my resignation and to assume my office of Mayor-Commissioner of the City of Daytona Beach, in the hope that by so doing the imperative governmental affairs of our City may be promptly carried out. I sincerely hope Dr. Long withdraws his offer to resign also.
"Dr. Long and I disagree politically. He has conceded publicly that I could in all probability delay the recall proceedings filed against me for as much as a year. I, too, have been so advised. It was solely because of Dr. Long's conviction that I could and would pursue legal delaying tactics against the recall that he agreed to offer his resignation along with mine.
"To assure the people of Daytona Beach, and of Zone 2, of my sincere desire to bring order out of the present turmoil as my sole and only motive for withdrawing my offer to resign, I publicly, here and now, announce that I will not, directly or indirectly, contest, delay or otherwise obstruct the recall election in Zone 2. I will submit myself to the people of Zone 2 in the recall election and fully consent that it be called with promptness and dispatch in the spirit and meaning of the Charter of our City, and abide the will of my fellow citizens.
"(Signed) Ollie Lancaster, Jr."
Immediately following the statement of respondent, on the same date, the City Attorney had incorporated in the minutes of the City Commission the following statement signed by Commissioner Long, one of the defendants in this cause:
"I have been advised by the City Attorney, and by other lawyers in whom I have confidence, that my offered resignation on Monday, August 6, 1951, was not legally accepted. My decision to resign with Ollie Lancaster, Mayor, was sincere and based upon my belief that Ollie would put legal stumbling blocks in the way of the recall which would delay it for months.
"Since Ollie has withdrawn his offer to resign and at the same time promised publicly to do nothing to stop the calling and holding of the recall election, I, therefore, have determined to withdraw my offer to resign, also.
"(Signed) J.H. Long"
August 20, 1951, at a meeting of the City Commission, respondent being present, a citizen asked the City Attorney what charges were made against respondent and whether or not the recall election was legal. The City Attorney read the affidavit and stated that "the legality or sufficiency of these grounds has not been challenged, and that the Mayor and Commissioner from Zone 2 has publicly renounced any right, if any, he had to challenge the legality of sufficiency of those grounds for the recall election." At the same meeting the City Commission set October 2, as the date for the recall election and while respondent was present he abstained from voting on the motion and did not object by word or act. During the week beginning September 23, 1951, voting machines were set up in preparation for the election, it was duly advertised, interested citizens purchased advertising space, others spoke over the radio, prepared and distributed letters and other literature and otherwise exerted themselves and expended money in an effort to get the public interested in the recall election.
Respondent sat silently by as a witness to all the foregoing proceedings and did not raise his voice in protest or otherwise challenge the affidavit or resist any of the proceedings leading up to the recall election until September 25, 1951, six days before it was called to be held. He then filed his bill of complaint, seeking to restrain the holding of the election on the ground that the affidavit filed with the City Clerk to initiate the election was insufficient in that it recited no valid ground for the recall.
This court has repeatedly recognized and enforced the right of waiver in cases similar to this. Rader v. Prather, 100 Fla. 591, 130 So. 15; Williams v. Kelly, 133 Fla. 244, 182 So. 881; Bellaire Securities Corp. v. Brown, 124 Fla. 47, 168 So. 625. We think the course of conduct on the part of respondent deliniated herein, estops him to raise the sufficiency of the affidavit for any reason at this time. He agreed and consented to the recall election, promised not to combat it and said he would abide by it, said that he would attempt no legal action against the City and that he would not challenge the sufficiency of the affidavit on any ground. He induced the City Commission to believe that he acquiesced in all that they had done and should not now be heard in equity to complain.
In view of what we have said, it becomes unnecessary to discuss other questions raised. The petition for certiorari is granted and the temporary restraining order appealed from is quashed but with directions to the Chancellor to call and set a new date for the recall election, the said date to be as early as notice thereof may be given and the machinery for holding it can be conveniently set up. Since this is the same election previously called and restrained, it is not necessary to reopen the registration books.
It is so ordered.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, ROBERTS and MATHEWS, JJ., concur.
HOBSON, J., not participating.