Download electors under said §1, Art II, U. S. Const. The 12th amendment

BIENNIAL' REPORT. OF THE ATTORNEY GENERAL
721
attorney for the board of county commissioners . .. to represent
the county . .. in enforcing settlement, payment or delivery of such
accounts; property, funds, money or other things of value." The
mandate in §17.041, is not that the county attorney represent the
board of county commissioners, but the county. There appears to be
no conflict between said §§9 and 15, Ch. 21874, and §17.041, F. S.;
the first regulates the bringing of the suit and the other the attorney to handle the litigation for the county. There was- no constitutional prohibition against the legislature designating the
county attorney as the attorney for the county budget commission
in the enforcement of shortages in the accounts of· officers in
counties having· budget commissions.
Answering the above stated question sums due the county by
reason of over-expenditures of the county budget in Duval county
are collectible in suits filed in the name of the county, by the
county budget commission, represented by the county attorney.
'e
It
i,
060-171-0ctober 11, 1960
.c
ELECTIONS
PRESIDENTIAL ELECTION-NATIONAL STATES RIGHTS
PARTY-GOVERNOR . ORVAL E. FAUBUS; RIGHT OF
PRIVACY-§103.021, F. S.-§ 1, ART. II AND 12th ·AMENDMENT, U. S. CONST.
1,
o
y
~l
.t
r
if
()
'(
1
,
t
:l
r
)
~
1
.',
.To: R. A. Gray, Secretary of State, Tallahassee
QUESTION·:
May Governor Orval E. Faubus, of Little Rock, Ark."
withdraw his name as a candidate for president of. the
U. S., as contained in those certain petitions heretofore
filed under and pursuant to §103.02l(3), F. S.?
For the purposes of this reply to your letter we shall presume
that the petitions were sufficient in number and form to conform
to the' requirements of said §103.021, F. S. These petitions purport
to be by Florida electors seeking the placing of. the names of
Governor Orval E. Faubus and Admiral John G. Crommelin, as
candidates for president and, vice-president of the U. S., on the
general election ballot at the forthcoming general election.
The said petitions were filed pursuant to said §103.021 (3),
which provides that "minor political parties, which have not
elected a president of the United States since January 1, 1900,
may have the names of their candidates for president and vice
president printed on the general election ballots," by the filing
of the ·petitions therein described with the secretary of state of
Florida. Although the names of the candidates for president and
vice president are printed on the election ballot, they are not in
fact the candidates to be elected at such general election, but
the actual candidates are the presidential electors of the political
party so nominating such candidates. See said §103.021, (1) and
. (2). Such presidential electors are provided for by §1, Art. II, and
the 12th amendment, of the U. S. constitution. Under said §1,
Art. II, "each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole
number of senators and representatives to which the state may
be entitled to in Congress." Section 103.021 is the method provided by the laws of Florida· for· the appointment of presidential
electors under said §1, Art II, U. S. Const. The 12th amendment
'I
!IIi
,I
"I.
722
BIENNIAL REPORT OF THE ATrORNEY GENERAL
provides the machinery for the selection of a president and vicepresident by the said presidential electors.
We have before us a copy of the telegram from Gov. Faubus
to you, and of the letter of Oct. 8, 1960 from him to you, from
which telegram it appears that Gov. Faubus has "taken no interest
in this matter and (is) not a candidate for President on any
ticket," and by said letter and telegram specifically withdraws his
name· from the Florida ballot as a candidate for president. We
must construe Gov. Faubus' telegram and letter as showing that
he was no party to the inclusion of his name on the above-mentioned petitions filed with you, bearing his name as candidate
for president, and that he does not want his name to appear upon
the Florida ballots in such capacity. There is no evidence before
us showing, or even indicating, that the selection of Gov. Faubus
by the persons filing said petitions with you, or by any party
group, was with his knowledge and consent, or that he has legally
accepted such nomination or selection. These facts prevent the
right of the election officials of Florida to enter Gov. Faubus'
name on the ballots of Florida until and unless his consent is
evidenced in some proper and legal manner, and especially
against his consent. In short, Governor Faubus insists on his
so-called rights of privacy.
The "right of privacy" has been defined as "the right of an
individual to be left alone, to live a life of seclusion, or to be
free from unwarranted publicity." (77 C. J. S. 396, §1). The
Florida supreme court, in Cason v. Baskin, 155 Fla. 198, 20 So.
2d 243, text 248, recognized the doctrine of the right of privacy
as "the right to be let alone, the right to live in a community
without being held up to the public gaze if you don't want to be
held up to the public gaze." The question before us is not one of
the dissemination of news, which may be an apparent exception
to the rule of the right of privacy. The use of a person's name
without his consent has often been held to be a violation of his
right of privacy, when not used in the dissemination of news
(77 C. J. S. 409-413, §5; 41 Am. Jur. 940 and 941, §21). Generally
upon the right of privacy see annotation in 138 A. L. R. 22-110.
Of interest is State ex reI La Follette v. Hinkle, 131 Wash.
86, 229 P. 317, where the court recognized the right of a person
to secure relief prohibiting state officers from certifying certain
candidates for state offices under nominations made by a selfstyled "La Follette State Party" where the use of his name in
connection with the local state ticket was contrary to the wishes
of the relator Robert M. La Follette, then the nominee of the
Progressive Party, who charged that the use of his name, in
connection with the so-called La Follette state party was contrary
to his wishes and prejudicial to his candidacy as nominee of the
said progressive party. In recognizing that the use of Mr. La
Follette's name, in connection with the said La Follette state
party designation, was a violation of his right of privacy, the
court remarked that nothing so exclusively belongs to a man or
is so personal and valuable to him as his name, inasmuch as his
reputation and the character he has built up are inseparably
connected with it. Upon the question of personal rights generally,
and equitable jurisdiction to protect them, see annotation in 175
A. L. R. 440-523.
Due to the fact, as stated by Gov. Faubus in his correspondence with you, that he had taken no interest in the action of the
\
!
L
BIENNIAL REPORT OF THE ATTORNEY GENERAL
-,..
-s
n
:t
y
is
'e
:c.t
-"
J.-
'6
dl
·e
J~
..
Y
!y
.e .
s'!'
is
J1fJL .·
't
Ie
.;:6.
.
9~
:y
:y
~e
)f"
:n~
"e
~ ...
723
so-called national states rights party in obtaining and filing the
petitions with you, and that he is not a candidate for president
on any ticket, together with his direction that his name be withdrawn from the Florida ballot as a candidate for president, we
do not think that the ballots to be used in the coming general
election should carry his name. He is within his legal right when
he demanded that his name be not so used. The use of his name
might well be a violation of his right of privacy above discussed.
We next come to the question of the right of the candidate
for vice-president to have his name printed on the ballot without
being accompanied with the name of a candidate for president.
The national states rights party is a minority party within the
purview of the Florida election code so that it must conform to
§103.021 (3), F. S., for its candidates to be listed on· the general
election ticket of this state. Said subsection makes no provision
for the general election ballot to carry the name of either a
candidate for president, or a candidate for vice-president, without
the same being accompanied with the other. Said section
103.021 (2), provides for the entry of the names of the candidates
for president and vice-president on the general election ticket, as
representative of the group of presidential electors, but not
separately. Presidential electors vote for both a president and a
vice-president, and no provision is made for voting for one without the other. It is our considered opinion that said §103.021 (3),
makes provision for an instructed list of presidential electors, so that
the failure of Gov. Faubus to accept what may be called a nomination, leaves a noncompliance with the requirements of §103.021 (3)
that there be both a candidate for president and a candidate for
vice-president.
In your letter you point out: "In other words-in preparing
the ballots we have considered the nominees for President and
Vice President inseparable on the ballot. For example-it would
be impossible on the Florida ballot to vote for Nixon for President and Johnson for Vice President, or to vote for either Lodge
or Johnson and at the same time not·vote for Nixon or Kennedy."
Your analysis appears to accord with the statutes including those
relating to presidential candidates of minority parties.
Construing said §103.021 (3) as requiring an instructed slate
of officers for president and vice-president in no way violates
the requirements of the federal constitution (Ray v. Blair, 343
U. S. 214, 72 S. Ct. 654, 98 L. ed. 894), and a failure or absence
of a candidate for president will not authorize the entry of only
the candidate for vice':'president's name on the ticket without
that of a candidate for president.
The question posed by you, as to whether you should advise
the county commissioners to place the name of the candidate for
vice-president, without a candidate for president, for the national
states rights party, is answered in the negative.
060-172-0ctober 19, 1960
JUVENILES
·CITY POLICE DEPARTMENT, INVESTIGATION BY-RECORD
IDENTIFICATION-§39.03 (6), F. S.
To: A. O. Folsom, Jr., Chief of Police, Daytona Beach
QUESTIONS:
1. Is the city police department of Daytona Beach,