The Historical Society of Avon ParkAVON PARK, FL · EST. 1886
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Gough v. State ex rel. Sauls, 55 So. 2d 111 (Fla. 1951)

This is the court record of what the Avon Park city council did in September 1951 and what the courts did about it. The opinion is the primary document, and it is quoted here in full.

What the document is

Full title: GOUGH ET AL. v. STATE EX REL. SAULS ET AL. Court: Supreme Court of Florida, Special Division B. Decided: 20 November 1951. Reported: 55 So. 2d 111. Below: Appeal from the Circuit Court for Highlands County, Don Register, Judge. For the appellants (the city council): Sumter Leitner of Arcadia and S. Colquitt Pardee, Jr. of Avon Park. For the appellees (Sauls, Sparks and Kirkland): Keith E. Collyer of Avon Park. Opinion by: Justice Chapman. Sebring, Chief Justice, Thomas, Justice, and Walker, Associate Justice, concurred.[gough-1951]

How it was brought. Not as quo warranto, which the case name might suggest, but as mandamus. The three elected men petitioned the Circuit Court of Highlands County for an alternative writ against the men making up the city council and canvassing board; the alternative writ issued, the council’s motion to quash was denied, the council answered, and the court granted a peremptory writ notwithstanding the answer. The council appealed and lost.[gough-1951]

Why the case name is misleading. Casetext, from which this text is taken, shortened the caption to Gough v. State. The full style is Gough et al. v. State ex rel. Sauls et al. — E. W. Gough, the council president whom the council’s own second resolution seated as a councilman, heading the list of appellants, and Wiley Sauls, Jr. heading the relators. Cite it in full.

How this text was obtained, and how it was checked

Casetext has been withdrawn and its pages return HTTP 410. This text comes from the Internet Archive’s capture of the Casetext page, made 29 July 2024.[gough-1951]

That is a single derived copy, so it was checked against an independent official source. Florida Attorney General Opinion 75-242, issued 27 August 1975, cites “Gough v. State ex rel. Sauls, 55 So.2d 111 (Fla. 1951)” and quotes from it the sentence beginning “It is a well established rule of statutory construction that the language of a statute may be so plain as to fix the legislative intent” — word for word as it stands below.[ago-75-242] The citation, the year, the court and the wording all agree.

The facts as the court found them

The election was held 11 September 1951, under Section 10 of Chapter 12514, Special Acts of 1927, which the opinion states plainly is the charter of the City of Avon Park. A mayor and five councilmen were being chosen, for the mayor and every seat on the council.[gough-1951]

The court is explicit about what was new that year:

Municipal elections held by the city prior to 1951 were usually conducted at one designated polling place in the city where the voters cast their ballots, but in the September, 1951, municipal election voting place Number Two was arranged by the city officials where qualified colored voters of the city could go and cast their ballots. The Inspectors and Clerk of Precinct Number Two were colored voters and had the exclusive supervision and management of the municipal election in Precinct Number Two.[gough-1951]

So 1951 was the first Avon Park election with a separate Black voting place, run by Black election officials. The 1949 election, in which the Black vote made Sauls mayor, was held at a single polling place.

On 15 September the council canvassed the returns and declared the winners. Its investigating committee found against the complaint:

It was determined by the investigating committee that there was insufficient evidence introduced to determine fraud or material irregularities which would change the result of the election as to be sufficient in itself to cause a rejection of all votes cast in Voting Place No. 2.[gough-1951]

The resolution that followed, moved by Mr. Lewiston and seconded by Mr. Gough, recorded the official count:

Office Name Votes
Mayor Wiley Sauls, Jr. 877
Councilman Lenny Rush 1,008
Councilman Mark Smith 985
Councilman W. Clifford Thomas 913
Councilman M. Kirkland 685
Councilman J. B. Sparks 642

These are the only official Avon Park election figures for 1951 known to survive.[gough-1951]

On 25 September the same council reversed itself. It received a “new complaint,” resolved that “there has been a grave irregularity in said election sufficiently serious to change the entire results,” rescinded its own resolution of ten days earlier, declared “that all ballots cast in voting Place No. 2 be declared illegal and void, and, are not to be counted,” and declared elected:

Office Name
Mayor O. C. Wilkes
City Council E. W. Gough
City Council Lenny Rush
City Council Mark Smith
City Council W. Clifford Thomas
City Council Oscar Wolff

Kirkland and Sparks were out; Gough and Wolff were in.[gough-1951]

The court summarized the effect of that second resolution in five numbered points, and the second and fourth are worth quoting exactly, because they are the court’s own characterization and not a later writer’s:

(2) it declared the result of the municipal election solely on the white votes cast; (3) it refused to count or consider in declaring the results of the election votes cast by the colored votes in Voting Place No. 2; (4) for irregularities, fraud and various reasons the City Council threw out the votes of the colored people as by them cast in Voting Place No. 2.[gough-1951]

What the council alleged

The council’s answer set out the grounds, and they are the only detailed account of what happened inside Voting Place No. 2 known to survive in any source:

  • The City Clerk, “without any authority of law, and contrary to the ordinances of the City of Avon Park,” appointed W. J. Robinson an inspector at polling place No. 2, and Robinson “unlawfully assisted voters at said election thereby destroying the secrecy of the ballot.”
  • Ordinance No. 12, section 19 allowed an inspector to help only an elector who “by reason of blindness or the loss of the use of the hand, or hands, is unable to prepare his ballot.” Robinson is said to have helped voters who were neither.
  • Robinson, and also Calvin Gibbs, Nathaniel Backer and Earnest Sims, all election officials, “entered into the election booth with voters who neither asked for assistance in the marking of their ballots nor were entitled” to it.
  • The sheriff (Highlands County Sheriff Broward Coker, in office 1949–1969), in attendance at polling place No. 2, testified that “more than one-half of the voters at said polling place were unlawfully assisted.”[gough-1951] See Sheriff Broward Coker and the City Clerk in the 1951 Avon Park election.
  • On the ballots: 1,500 were delivered to polling place No. 2; 397 were marked and cast; 799 were returned unused in the ballot box; and 304 were unaccounted for, contrary to section 5 of Ordinance No. 43.[gough-1951]

The 397 figure is the one point where the local-history account and the court record agree exactly.

The court did not decide whether any of this was true. It held that the council had no business deciding it either.

What the court held

The council relied on section 24 of its own charter — “Said City Council shall judge the election and return of its * * * members, and prescribed rules for the determination of contested election” — and on sections 165.18 and 165.13 of the Florida Statutes, and on Robarts v. State ex rel. Smith, 160 Fla. 960, 37 So. 2d 577.[gough-1951]

The court read the words narrowly and constitutionally:

The language of the charter is limited to judging “the elections and returns of its members” and Section 165.18 provides that the “city or town council may judge of the election returns.” The authority of the City Council, by the above quoted language, is limited to the returns of the elections.[gough-1951]

And then the constitutional point, which is the reason the decision holds beyond Avon Park:

The Legislature was without authority to confer on the City Council of Avon Park judicial powers then vested in the Judicial Department of our government under the Constitution of Florida. … The Canvassing Board has no judicial discretion. It was without authority to judge the legality or validity of the returns or the votes cast in Voting Place No. 2. These questions are for the judiciary and the Court below, in its order, left the door wide open for those desiring to litigate further to enter and be heard by an appropriate tribunal.[gough-1951]

A canvassing board’s job is to establish that the paper before it is a return, add up the figures, and declare the result. Nothing more.

The court closed by reaching back to the election cases of Reconstruction — State ex rel. Bloxham v. Gibbs, 13 Fla. 55; County Comm’rs Columbia County v. King, 13 Fla. 451; State ex rel. Drew v. McLin, 16 Fla. 17; State ex rel. Bisbee v. Board of Canvassers, Alachua County, 17 Fla. 9; Comm’rs Franklin County v. State ex rel. Patton, 24 Fla. 55, 3 So. 471 — for the point that mandamus is the right remedy against a canvassing board. “The judgment appealed from is affirmed.”[gough-1951]

The rule of statutory construction the court applied, citing Armistead v. State ex rel. Smyth, 41 So. 2d 879, is the sentence that later made this a routinely cited case, and the same wording that Florida Attorney General Opinion 75-242 confirms against an independent source:

It is a well established rule of statutory construction that the language of a statute may be so plain as to fix the legislative intent and leave no room for construction. If the statute is plain and unambiguous and admits of but one meaning, the courts in construing it will not be justified in departing from the plain and natural language employed by the Legislature.[gough-1951]

Florida courts and attorneys general have quoted that passage ever since, generally without any idea what the case was about.[ago-75-242]

Where a widely repeated local-history account gets it wrong

A local-history account of the case, without citations of its own, has circulated online. Five points in it are wrong or unsupported when checked against the opinion itself.[byrne-1951-votes]

  1. The council’s first act was to certify the Black precinct’s votes, not to reject them. On 15 September its own investigating committee found the evidence of fraud insufficient. The reversal ten days later was a second decision against its own finding.
  2. Five councilmen were elected, not two. Rush, Smith and Thomas kept their seats under both resolutions; only Kirkland and Sparks were removed.
  3. The precinct vote totals do not reconcile. The local account gives Wilkes 522 to Sauls’s 514 in the white precinct and Sauls 376 of 397 in the Black precinct, which would total 890 for Sauls. The council’s own canvass gives Sauls 877. One of the two precinct figures is wrong, or a third candidate’s votes have been mixed in. The court gives no precinct breakdown at all.
  4. The proceeding was mandamus, not quo warranto, and the relief was a peremptory writ commanding the council to rescind its second resolution and reinstate its first.
  5. “Contempt proceedings against the councilmen” appear nowhere in the opinion. If they happened they are in the circuit court file, not in the appellate record.

One point the local account got right: the 397 ballots cast in Voting Place No. 2.

Between the writ and the final opinion

The Supreme Court affirmed on 20 November 1951, but it had already intervened once before that. The Tampa Tribune of 11 October 1951 — not 10 October, which was the dateline, not the publication date — is transcribed in full at Reference: The Tampa Tribune, 11 October 1951. It reports that the Supreme Court issued a writ of supersedeas on 10 October 1951 suspending Judge Register’s order, set the appeal down for Monday 22 October, and required Wilkes, Gough and Wolff to post a $1,000 bond; that Judge Register had cited four councilmen for contempt on 9 October for not complying “forthwith”; and that on the evening of 10 October the council complied and the men elected on 11 September were sworn in.[trib-1951-10-11]

The same page supplies three things the opinion does not: the councilmen’s names — Ed Gough, John Delegal, Reason Shivers and Charles Lewiston — and how each voted on 25 September (Gough, Lewiston and Delegal for; Kirkland against; Shivers abstaining); the four grounds argued for voiding the precinct, the first of which is that “the separate place for Negroes was set up as an emergency action several days before the election”; and the location, at the city hall.[trib-1951-10-11]

References

Where this comes from

Evidence
single-source — One source. Treat as reported, not established.
Review
unverified — Drafted from sources but not yet checked by a volunteer.
Rights
society

Sources

  1. Supreme Court of Florida, Special Division B (Chapman, J.), Gough et al. v. State ex rel. Sauls et al., 55 So. 2d 111 (Fla. 1951) (1951)
  2. Office of the Attorney General of Florida, AGO 75-242, Application of recall provisions of FS 100.361, 27 August 1975 (1975)
  3. The Tampa Tribune (Tampa, Fla.), Supreme Court Halts Action Contested Avon Park Vote; and Avon Park Council Action Questioned, by Hayden Williams — The Tampa Tribune, 11 October 1951, page 17 (1951)
  4. Jason Byrne, Florida History Blog, Avon Park City Council Throws Out All Black Votes in 1951 Election (2022)

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