12-12-1956 Special Meeting
MINUTES OF SPECIAL MEETING
December 12, 1956
--
A Special meeting of the City Council sitting as a Board of
Canvassors was duly opened at 9 :00 A. M. in the City Hall
with the following present:
Councilmen Beals, Grant, Turville and Jensen.
Also present were City Clerk Johnson, and Mr. Fullwood,
policeman who acted as Deputy at and during the elec6'tion
and who hashad posession of the sealed ballot box since the
tallying of the votes by the Inspectors and Clerk of the
election.
The ballot box was placed before the Board, the seal waS
broken and the box opened before the Board.
The Board proceeded to canvas the returns of the Inspectors
and Clerk and the Board found 18 Ballots in which the Voters
for the Canidate of Mayor had marked their ballot 51 with a
crossmark (X) in the following manner:
For May or
1 Year TeZ'll
Vote for one:
o. H. Keene
( )
( )
(X)
William Boyd
--
The Board discussed these 18 ballots which had not been
counted for either canidate for Mayor, but had been counted
as to the remaining Canidates for the other elective offices.
After thoroughly discussing the intention of those 18
voters the city attorney waS requested to consider the question
and give the Board his opinion.
The meeting was adjourned to 12:00 O'clock noon on December l2,
1956. The ballot s were replaced in the ballot box, the box sealed
and locked and placed in the custody of the deputy policeman.
At 12:00 O'clock noon on December 12, 1956, the meeting
was called to order and the city attorney verbally stated his
opinion based on the State law and certain cases and advised
the Council he would reduce in to writing said opinion. The
Chairman directed the Attorney's written opinion be filed with
the Clerk and a copy be attached to these minutes. It was the
Attorney' 51 opinion that the Board would have to consider what
the intent of the voters were in marking their ballots in the
manner in which they were so marked; that in his opinion the
whole of the ballot must be considered in determining the intent
of the voter; that he did not believe that in considering the
whole ~~ttptt of each of the 18 ballots that the Board could
determine the intent of the voters in vot ing as they did for
the canidate of Mayor. That the Board must do one of two things:
either follow the decision of the Inspectors and Clerk of the
election or declare them to be voted for Banidate Keene.
Further discussion was held and numerous questions were
asked of and answered by the city attorney.
Mr. Beals moved that the canvassing board find that the
18 voters casting the 18 votes by voting as they did intended to
vote for O. H. Keene for mayor, and that these 18 votes be added
to the Inspectors and Clerks report on the election thereby making
the total number of votes cast for each of the canidat&s to be
as follows:
For May or
vote tallied
by Inspectors
vote declared
by Board
---
O. H. Keene
250
246
2S9
265
William Boyd
which motion was seconded by Mr. Jensen and on Roll call vote
the Ayes were Beals, Jensen and Turville.
Nay- s: Grant.
The 18 ballot s were then stapled together and a statement
attached thereto as to the action of said Board, with each Board
member signing same and declaring his vote thereon as above
recorded.
Motion was then duly made by Beals, seconded by Jemsen
that they declare the result of the General election to be
as follows:
ELECTED AT GENERAL ElECTION
For May or
For Treasurer
O. H. Keene
R. C. Cs.ntwe II
For Councilman
( 1 year term)
George P. VanNostrand
For Councilmen
( 2 year term)
Clarence Bishop
Juliet Carrington
Charles Roe
For the enforcement of
charter authority as to
removing debris, etc
from lots when owners refuse
and City to enforce its
lien for cost thereof
Carried
and on Roll call vote the Board voted as follows:
Ayes: Beals, Jensen and Turville.
Nay.: Grant-However Mr. Grant stated he was only voting
Naye as to the Mayors result but was voting Aye as to the results
of all other Canidates and requested that the minutes so show
his qualified vote.
Motion Jensen, seconded Beals and carried that meeting adjourn.
--
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I:RV-X:N"G F. MC>:RSE
ATTORNEY AT LAW
CLE:I~:I'l-1:0NT, F-r....ORIDA.
December 12, 1956
MEMBERS OF CITY COUNCIL
CLERMONT, FLORIDA
Re: General Election - December 11, 1956
Clermont, Florida
Gentlemen:
Pursuant to your request, I have examined the 18 ballots
cast in this election pertaining to the election of a Mayor in
particular in which on each of the ballots the "cross mark" or
"X" is placed in the right hand side of the ballot opposite the
line provided on the ballot for write-in votes.
On the loose ballot turned over to me and initialed by
all present members of the Council you will note that I have affixed
an "X" in the same position as they appear on the 18 ballots in
question, with the added notation:
"NOTE: The "X" was placed hereon by me for
reference to my opinion as to the counting
of such a ballot marked in this manner.
Irving F. Morse
Ci ty Attorney
12...12-56."
When you called me in during your meeting on this date,
for my opinion as to whether these 18 ballots should be "counted"
or "not counted", as was done by the inspectors and Clerk of the
election, I made a cursorary examination of same and knowing the
"Intention of the Voter" must be considered at all times by e1ec...
tion officials, I felt they should be counted for Candidate, O. H.
Keene, but asked for time to consider same and make a later report
in writing.
I have, in the light of the Charter and Ordinances of
the City, as well as the state Election laws and our Supreme Court
decisions, now reached the opinion that the Election Inspectors
and Clerk were correct in not counting these 18 ballots as to the
Mayor's office (they, I understand, did count the ballots as to the
other offices). I am returning to you herewith the ballot above
e
Ie
...Page Two-
December 12, 1956
Members of City Council
Clermont, Florida
Re:
General Election
December 11, 1956
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
referred to.
When our Charter and Ordinances do not control a question
on elections, the state law controls.
Upon examining the 18 ballots in question, I find that each
voter marked his "X" opposite the name of the candidate of his choice
in the spaces indicated on the ballot for same. Therefore, I do not
believe their respective intention as to these other candidates can
be questioned. I am not able to determine the intention of each of
these voters as to their choice for the office of Mayor.
"x x or if impossible to determine the
elector's choice, his ballot shall not
be counted."
~101.09l Florida Statutes, 1955,
and it is my opinion the intention of the voters is uncertain.
"Where there is no uncertainty or ambiguity
in the name voted for or in the method used
on the ballot to indicate the name voted for,
the inspectors should count and return the
vote and ballot as cast whatever may be the
name or the mark used, the legality of the
vote being for judicial determination."
(Underlining supplied).
Nuccio Vs. Williams, 97 Fla. 159,
120 So. 310,
and,
"If voter in primary election has clearly
indicated by cross-mark candidate of his
Choice, ballot, though irregular, should
be counted."
Wiggins v. state, 106 Fla. 793, 144 So. 62.
Considering the question of whether these 18 voters became
confused in the marking of their ballot, I think the lack of confusion,
and to the contrary, their definite marking for the candidates of their
e
e
-Page Three-
Members of City Council
Clermont, Florida
December 12, 1956
Re: General Election
December 11, 1956
choice for other elective offices, is a clear intent on the part
of these 18 electors not to vote for either of the candidates for
Mayor.
In furtherance of my verbal opinion that the intention
of these 18 voters could not be determined and the ballots should
not be counted in the election of the Mayor because they were
incorrectly marked, I submit t he following:
Under ~9 of Chapter IV, Revised General Ordinances of
the City of Clermont, passed on June 6, 1928, and approved by the
Mayor on June 19, 1928, definitely provides for the marking of the
ballot:
"All ballots provided by the Council for an
election shall be alike, of the same size,
printed on plain, white paper in"p1ain type
and in straight lines with a slender line separ-
ating the names and extending sufficiently to
the left of each name to easily permit marking
before each name a cross mark (X) x x x"
(Underlining supplied),
and this same section sets out the form of the ballot. The fact
that our ballot for the General Election on December 11, 1956, pro-
vided space for the marking of the "X" to the right of name is not
material, as our Supreme Court has ruled:
"And the intention of the voter should be ascertained
from a study of the ballot and the v ote counted, if
the will and intention of the voter can be determined,
even though t he cross mark "X" appears before or after
the name' of a candidate."
State v. Barber, 144 Fla. 159J 198 So. 49.
In my opinion, the above Ordinance requires the marking
of the ballot with an "X" in the space provided for same, and if
not so marked there, in the light of the above case, at least the
mark shou1d,be opposite of and on either side of. the name of the
candidate the voter intends to vote for, and not in a place above
or below the name of the candidate.
I find:
As to the marking of the ballot under the State law,
"'
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e
.. Page Four-
December 12, 1956
Members of City Council
Clermont, Florida
Re: General Election
December 11, 1956
- -
"No ballot shall be voided or declared
invalid in any special, general, or
primary election within the state by
reason of the fact tha t same is marked
other than with an "X", so long as there
is a clear indication thereon to the elec-
tion officials that the person marking
such ballot has made a definite choice,
and provided further, that the mark
placed on said ballot with respect to
any candidate br any such voter shall be
located in the square on the ballot
opposite such candidate's name."
~101.0ll(3) Florida Statutes, 1955.
Therefore, our Ordinance has the same requirement as to the position
of the cross-mark (x) as the state law.
Further considering the intention of the voter, the laws
of this state, as well as other states, can be shown to be:
"The ballot is to be construed as any other
writing, and the voter's intention is to
be gathered from the instrument itself,
read in the light of surrounding circum_
stances x x."
18 Am. Jur. 310.
and further, I find as to the question on the "Position of ~rk":
"If the statute requires the cross mark to
be on or in the circle or square reserved
for that purpose, this requirement must
be substantially complied with, but if
the statute makes no provision as to putting
the cross in a designated square, the question
whether the cross is or is not within the
square is not controlling."
18 .Am. Jur. 303-304,
and under our Ordinance and state law the cross-mark is required in
e
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...Page Five..-
December 12, 1956
Members of City Council
Clermont, Florida
Re: General Election
December 11, 1956
" - - - - - - - -
- -'
the proper place. In view of our Supreme Court decisions that it
must be counted if placed before or after the name, I believe the
Ordinance and Statute would not be strictly construed if placed
outside of the square, but opposite to and to the right or left of
the candidate's name.
Further I find, continuing the above reference:
"Similarly, it is generally held that the voter's
act is a nullity if he places his mark in or
opposite a blank left for writing in the name of
a candidatex x x."
18 Am. Jur. 304.
In the light of the above, I am still of the op1n1on that
these 18 votes should not be counted for either of the candidates
for Mayor. I think the Inspectors and Clerk of the election were
correct.
Respectfully submitted,
~ 0 - ==t-~&.-'-lI....J
Ci ty A1ttorney
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GENERAL. ELECTION . '" V
CLERMONT, F'LORIDA ) ~ l)J-tV'
B'I::~:::_1l'19:6~ftAY ,rf 17~
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OFF ICtAL BALLOT ~ vr""'
GENElRAL ELECTION
CLERMONT, FLORIDA V
DECE'MaER 11, 1956
FoR MAYOR
1 year term
.
Vote for One:
Wtll1am Boyd ( )
O. H. K~en~ ( )
Nd'k \ "Tk 14~ \ W*A r \o.ed "'en:-'" ()f ~
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r FOR TREASUR'EK
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. Vot~ tor One: ~ ~ """" ~~ ~ L-
lloel C. Cantwell ~ ~ ( )
l 'V/ '"'1l1.( )
11.__1
..
FOR COUNCILMAN
(1 year term)
Vote for ODe:
HalT)" L. Brown
A. E. Slack
George P. Van Nostrand
( )
( )
( )
( )
r
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Clarence A. Bishop
Domtntek Bruno
Juliet H. 'Carrlngton
Preston Maynard
Benjamin F. Perry
Charles B. lWe
( )
( )
( )
( )
( )
( )
( )
( )
( )
r ill .4
Vote either For or Against
Shall the City of Clermont exercise its
charter authority by enforcing the re~
moval of underbrush, debris and cut-
ting of grass on vacant lots by the
owner(s) and if not so done tbe City
of Clermont to Cio same and thereafter
enforce Its lien against the property
for cost thereof.
For ()
Aplnet ()
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public, to the O'Wnel'e of record of the fe. simple title to the abutt-
ing property on or aft.. the passage and. adoption of this Ordinance
by 'the Ci V Council of the CiV of Cl...ont. and. the approval of same
by 1he Kayor of the City ot Clermont.
SE'CTION UX. This Ordinance shall take effect ill.
mediately upon its adoption, passage aDd approVa1~ '
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PASSED AND ADOPTED by the 01 V Council of the Ci V of
Clemont at a regular meeting held on November 6, 1956 in the City of
Clemant; F1or~.
President . ~ the 01 ty Council
ATTEST: .
ci ~ Clerk
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RECEIVED AND Al-'PROVED by me this Nov.bar
. 1956.
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Ha;yor of the 'Ci ~. ofC1el'll,ont'
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X HEREBY CERTIFY that. thi. Ordinance waf duly posted in
the C1 V ot Clermont in accordance "i th the Charter and Ordinances at 'u.
CiV of' Clermont, Lake Coun:ty, Florida.
Dated
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. Ci tyClerk'
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}~YOR'S PROCLA}~TION
The General E1e ction of the City of Clermont, Lake County,
Florida, will be held in the City Hall in said City on the second
Tuesday in December, 1956, the same being December 11, 1956, be-
tween the hours of 8:00 o'clock Ao M. and 7:00 o'clock P. M.
The purpose of this election shall be to elect:
A Mayor to serve one year;
A Treasurer to serve one year;
Three (3) Councilmen each to serve for two years; and,
One (1) Councilman to serve an unexpired term of one (1)
year:
Each of wham shall take office at the, first Regular Meeting in
1957 .
Qualifications Requisite to Election
No person is eligible for election to office in the government
of the City of Clermont, Florida, who shall not at the time of his
or her election be a qualified registered voter and freeholder there-
in. Any person who shall possess the qualifications requisite to
an elector at General State Election, a freeholder in the City, and
shall have resided in the City six months next preceding an election,
and shall have been registered in the l-lunicipa1 Registration Books"
shall be a qualified elector of the City of Clermont, Florida.
Nomination for any of the above offices shall be by petition
for nomination for the particular office, signed by at least 25 qual-
ified registered voters of the City of Clermont, together with the
signed consent of the candidate to serve if elected, and same is to
be presented to the City Clerk by 5:00 o'clock P. M. on November
28, 1956 in the City Hall.
DATED November 10, 1956.
As l1ayor of the City of Clermont
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MAYORIS PROCLAMATION
At the General Election to be held in the City or
Clermont to be held in the City Hall on the second
Tuesday of December, 1956, ,the same 'being December ll,
1956, ,be~ween the hours of 8:00A. M. and 7:00 P. M.,
the following que st ion. will be decided by the qualified
voters of the City of Clermont:
Shall the City of Clermont exercise its Charter
authority to enforce the removal. of underbrush,
debris and keeping of grass cut on vacant lots,
_ upon the failure of,the property owner to
clean up suoh vaoant property at the request
of the City CounCil, to pa'Ph1P1llY'mlnl'!trJ1t olean up
said property by the removing of suoh debris
and grass and enforce the . payment to said City
of such work so performed by the enforcement
of the Cityls lien on said property.
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Is m. W. Boyd .
As ayor of the C y of Clermont
Publish: Clermont Press,
November 22,,29th
December 6, 1956
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