STATE v. BROWARD COUNTY [54 So.2d 512, 1951 Fla.SCt 594] STATE et al. BROWARD COUNTY. Supreme Court of Florida, en Banc. Decided Jul 24, 1951.

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1 STATE v. BROWARD COUNTY [54 So.2d 512, 1951 Fla.SCt 594] STATE et al. v. BROWARD COUNTY. Supreme Court of Florida, en Banc. Decided Jul 24, On Rehearing October 16, COUNSEL William Fisher of Fisher & Fisher, Pensacola, for appellants. John U. Lloyd, Fort Lauderdale, for appellee. OPINION TERRELL, Justice. Chapter 25181, Acts of 1949, authorized the Board of County Commissioners of Broward County to adopt voting machines for the conduct of elections therein and to secure said machines by rental or purchase on terms best suited to the County. Pursuant to said act, the Board of County Commissioners entered into contract with Shoup Voting Machine Corporation for the purchase of one hundred and eleven (111) voting machines, the total cost of which was $158,083.98, payable $18, on January 15, 1951 and $15,000 on the 15th day of January each year thereafter till paid. The deferred payments were evidenced by certificates of indebtedness Bearing interest at the rate of 2 3/4 per cent per annum, interest payable semi-annually. By resolution calling for issuance of the certificates the county commissioners imposed an ad valorem tax on all taxable property in the county to pay

2 interest and principal of the certificates. This appeal is from an order of the Circuit Court validating said certificates of indebtedness. The validity of the act authorizing the certificates nor the proceedings for their authorization are assaulted. The point presented for determination is whether or not the certificates of indebtedness were such as require an approving vote of the freeholders under Section 6, Article IX of the Constitution, F.S.A. It is admitted that the answer to this question turns on the interpretation of State ex rel. Houston v. Hillsborough County, 136 Fla. 503, 183 So. 157, 158, as applied to the facts of this case. Houston v. Hillsborough County involved an act similar to Chapter in this case except that the act involved in the Houston case authorized the people of Hillsborough County to approve the use of voting machines. On this question an election was held which resulted in an affirmative answer to the question. The challenge to the validity of the certificates of indebtedness was the same as the challenge to the certificates in this case and we held that the "vote on the adoption or not of voting machines was to all intents and purposes a vote on the extension of the county's credit to purchase them since their immediate use was required and the County Commissioners were authorized to acquire them. The Legislature was fully authorized to confer this authority on the County, and being so, no further vote of the people was necessary." Chapter involved in the instant case did not require an approving vote of the people to adopt and purchase voting machines. It authorized the County Commissioners to purchase them within their discretion, to be paid for in such manner as the Board of County Commissioners saw fit. As heretofore pointed out, the certificates of indebtedness to pay for the Broward County Machines are secured by an ad valorem tax imposed on all taxable property in the County. From these and other facts recited, we think they are to all intents and purposes, bonds as contemplated by Section 6, Article IX of the Constitution and require an approving vote of the freeholders which they have not had an opportunity to do. In this holding we do not overrule Tapers v. Pichard, 124

3 Fla. 549, 169 So. 39; City of Jacksonville v. Nichols Engineering & Research Corporation, Fla., 49 So.2d 529; Eggart v. Westmark, Fla., 45 So.2d 505. The last of these cases was controlled by Houston v. Hillsborough County, supra, in so far as it related to this case. The first and second of these cases involved the purchase of essential governmental necessities under budgetary requirements. They do not require an approving vote of the freeholders under Section 6, Article IX of the Constitution. Chapter involved in this case did not classify voting machines to be a governmental necessity, the County Commissioners did not so find them and this Court has not found them to be. Houston v. Hillsborough County does not rule the case at bar. The validating decree appealed from is therefore reversed. Reversed. SEBRING, C.J., and CHAPMAN, THOMAS, ADAMS and HOBSON, JJ., concur. ROBERTS, J., dissents. ROBERTS, Justice (dissenting). Common experience denotes that voting machines increase the integrity of elections. Chapter 25181, Acts of 1949, Florida, authorized the use of the machines in Broward County, thereby establishing as a matter of law the need for same. The preservation of the integrity of the ballot is an essential governmental necessity, and being such, an approving vote of the freeholders is not required. See Tapers v. Pichard, 124 Fla. 549, 169 So. 39; City of Jacksonville v. Nichols Engineering & Research Corp., Fla., 49 So.2d 529. The validation decree should be affirmed. On Petition for Rehearing TERRELL, Justice.

4 The petition for rehearing does not point out anything the court overlooked or omitted as required by Rule 25. It takes issue with the rationale on which the opinion was predicated. The point in controversy is whether or not certificates of indebtedness to purchase voting machines for use in Broward County require an approving vote of the freeholders under Section 6, Article IX of the Constitution, F.S.A. It was contended by counsel that the question was ruled by State ex rel. Houston v. Hillsborough County, 136 Fla. 503, 183 So The act involved in this case was Chapter 18406, Acts of It required the purchase of voting machines to be approved by the people. A referendum was held for that purpose and the people of Hillsborough County voted to purchase the machines. A majority of this court held that such approval amounted to an extention of the county's credit for that purpose and that approval of the certificates to pay for the machines as required by Section 6, Article IX of the Constitution was not necessary. The reason for this holding is more fully explained in State ex rel. Gallaway v. Henderson et al., 134 Fla. 731, 184 So. 654, which involved another phase of Chapter 18406, relating to the purchase of voting machines in Hillsborough County, the pertinent part of which is that the county commissioners entered into contract for the purchase of the machines by which it agreed to pay for them in five equal annual installments. Since the purchase had been approved by a majority vote of the people of the county, the County Commissioners proceeded on the theory that they were a current governmental necessity as contemplated by Section , Florida Statutes 1949, F.S.A. A majority of the court approved the action of the County Commissioners on authority of Tapers v. Pichard, 124 Fla. 549, 169 So. 39. Chapter 25181, Acts of 1949, involved in the case at bar, was not approved by a vote of the people of Broward County, neither were the certificates to pay for the voting machines for use in said county approved by a vote of the freeholders as required by Section 6, Article IX of the Constitution. They are to run for a period of ten years or longer and there is no approval by the people of the county, the legislature or any one else, that would authorize the County Commissioners to proceed on the theory that they were a current governmental necessity by

5 the Rule in Tapers v. Pichard, supra, hence we held that the purchase was not ruled by State ex rel. Houston v. Hillsborough County. It is contended that the approval of Chapter by a vote of the people of Hillsborough County was not tantamount to an approval of the certificates by the freeholders, as required by Section 6, Article IX of the Constitution and since this is the case, there is no reason why certificates issued pursuant to Chapter should be approved as required by Section 6, Article IX of the Constitution. We have not before been called on to answer this question, but since there was no attempt to approve the purchase of voting machines for Broward County by a vote of the people, or to issue the certificates to pay for them, in compliance with Section 6, Article IX of the Constitution, it becomes unnecessary to answer the question in this case. We would be required to go outside the record to do so. It is common knowledge that certificates to pay for self liquidated projects and essential governmental requirements have been repeatedly exempted from the requirement of approval by the freeholders under Section 6, Article IX of the Constitution. That voting machines are very desirable and promote purity of the ballot is not disputed. It is also evident that Chapter 25181, Acts of 1949, authorizes Broward County to purchase them, but unless they are within one of the above categories, the certificates to pay for them must be approved by the freeholders as required by Section 6, Article IX of the Constitution. The record shows affirmatively that they are in neither of the exempted categories. Our opinion filed July 24, 1951, is therefore reaffirmed on rehearing. Affirmed on rehearing. CHAPMAN and ADAMS, JJ., and JOHN DICKINSON, Associate Justice, concur. CHAPMAN, J., Special concurring opinion.

6 SEBRING, C.J., and ROBERTS, J., dissent. CHAPMAN, Justice (concurring). I join in the opinion as prepared by Mr. Justice TERRELL. It is now recognized that an accurate count of votes cast by the electors under our system of government is absolutely essential to sound government. Fraudulent counts and reports contrary to the public will destroys confidence, encourages lawlessness and strikes at the taproot of our form of government. In light of recent developments, it is generally recognized that the voting machine is the most available agency to maintain the purity of the ballot, inspire confidence and respect on the part of the public and remove and reduce the design of those willing to manipulate or defeat the purposes of our elections. It therefore follows that the voting machine is essential to clean government and easily may be classified as a governmental purpose similar to court houses, jails, health units, air ports, hospitals, etc. The County Commissioners of Broward County, by the general law and by the Special Act, have the power, authority and duty to provide for the voters of Broward County such a number of voting machines as may be reasonably necessary for the accommodation of its electors. It is my view that they may enter into any approved debtor or creditor relation that may reasonably be required to accomplish this objective, inclusive of the levy and collection of an ad valorem tax on the taxable property of the County with which to pay for the machines. If the County Commissioners desire to issue bonds to be used in the purchase of the machines and pledge the taxable resources of the County to service the same, then an election is required by the provisions of Section 6 of Article 9 of the Constitution. I consider the voting machine as an essential of government and it is the lawful duty of the Commissioners to provide therefor by a financial plan different from the ones here contemplated. ROBERTS, Justice (dissenting).

7 The only question here is whether the use of voting machines may be considered to be a "current governmental need" of a county. If so considered, then the county is not required to comply with the provisions of Article 9, Section 6, of the Constitution of Florida - authorizing a county to issue bonds "only after the same shall have been approved by a majority of the votes cast in an election in which a majority of the freeholders who are qualified electors residing in such Counties * * * shall participate * * *" - before issuing the certificates of indebtedness here in question. See Tapers v. Pichard, 124 Fla. 549, 169 So. 39; Leon County v. State, 122 Fla. 505, 165 So. 666; City of Jacksonville v. Nichols Engineering & Research Corp., Fla., 49 So.2d 529. The constitution of this state requires the holding of a general election in each county of this state every two years, Art. 18, Section 9; and the Legislature is required to "enact such laws as will preserve the purity of the ballot given under this Constitution." Art. 6, Section 9. Pursuant to this constitutional mandate, the Legislature in 1929, by Chapter 13893, Acts of 1929, F.S.A. Sec et seq., authorized the Board of County Commissioners of any county to submit to the voters of such county the question whether or not voting machines should be used in elections. The question of whether or not a county may obligate itself to purchase voting machines under the authority of this Act without first submitting the proposal to the freeholders of the county has not been presented to this court. There has been presented, however, the question of the validity of certificates of indebtedness issued by the Board of County Commissioners of Hillsborough County to pay for voting machines purchased under the authority of Chapter 18406, Acts of 1937, which was a Population Act applicable only to Hillsborough County, and pursuant to the terms of which the use of voting machines had been approved by a majority of the qualified electors voting in a special election held for that purpose. In State ex rel. Houston v. Hillsborough County et al., 136 Fla. 503, 183 So. 157, 158, this court held that a compliance with Art. 9, Section 6, of the Constitution was not required. In upholding the validity of the certificates of indebtedness, this court said: "The vote on the adoption or not of voting machines was to all intents and purposes a vote on the

8 extension of the county's credit to purchase them since their immediate use was required and the County Commissioners were authorized to acquire them. The legislature was fully authorized to confer this authority on the County, and being so, no further vote of the people was necessary. This question is concluded against the contention of Relator by Tapers v. Pichard, 124 Fla. 549, 169 So. 39." The Tapers case involved the validity of certificates of indebtedness issued by the county commissioners of Leon County to pay for the construction of a new county jail. The safekeeping of county prisoners is a governmental function of every county; and the county commissioners are authorized, under the provisions of Section , Florida Statutes, to repair, make additions to, or erect a county jail "Whenever [they] shall deem it necessary." Their facilities being inadequate, the county commissioners of Leon County could have (1) locked the prisoners in the Leon County stockade, (2) confined them in jails of neighboring counties, (3) continued to use the old jail, or (4) determined to erect a new jail. The county commissioners of Leon County, as representatives of the people, and as authorized by statute, determined that the exercise of their governmental function and duty in the safekeeping of county prisoners would be best served among these alternatives by building a new jail. At that point, it became a "current governmental need;" and this court held that the certificates of indebtedness were not required to be submitted to a vote of the freeholders of Leon County. The Legislature, in the performance of its organic duty to "preserve the purity of the ballot," has authorized every county in this state to adopt the use of voting machines in their elections, if their use is approved by a majority of the qualified electors in the county voting on such question. Chapter 13893, Acts of Again, in 1937, the Legislature required the people of Hillsborough County to vote on such use; and, as indicated above, the use of voting machines was approved by a majority of the voters of such county. In 1949, the Legislature authorized the county commissioners of Broward County to determine whether voting machines should be used in that county; and such commissioners, as representatives of the

9 people, and as authorized by law, adopted the use of voting machines in Broward County. In both cases, the use of voting machines became a "current governmental need" at the time of their approval - in the one case by the voters of Hillsborough County and in the other case, by the county commissioners of Broward County; and by analogy with the Tapers case, the Broward County certificates should be validated. Thus, in the Tapers case, there was a legislative determination that, in order to secure the confinement of county prisoners, the county commissioners could erect or repair their county jail; and in the instant case, there was a legislative determination that, in order to preserve the integrity of their elections, the county commissioners of Broward County could purchase voting machines. The construction or repair of a jail is no less a "current governmental need" because the decision to perform such work is lodged by the legislature with the county commissioners; and the use of voting machines, similarly, is no less a "current governmental need" because the decision to use the same is lodged with the voters of the county, as in Hillsborough County case, or with the board of county commissioners, as in the instant case. In my opinion, where there is a constitutional command to perform an act of government, the political subdivision upon which the responsibility to execute that organic command ultimately rests, is under a mandatory duty to carry out such command as a function of government; and that, therefore, the financing incidental to the execution of such organic command is a "current governmental need" and thus not subject to the inhibitions imposed by Section 6 of Article 9 of the Constitution. I would affirm the decree of validation. SEBRING, C.J., concurs.