State ex rel. Bloxham v. Gibbs, 13 Fla. 55

State ex rel. Bloxham v. Gibbs

13 Fla. 55 | Fla. | 1869

RANDALL, O. J.,

delivered the opinion of the court.

An alternative writ of mandamus having been issued and served upon the respondents requiring them, as a'Board of State Canvassers, to proceed to examine and certify the result of the late special election as it appeared by a canvass of all the returns from the several counties, and to declare the relator duly elected to the office of Lieutenant Governor of this State, and requiring the Secretary of State to record the certificate of the canvassers and to issue to the relator a certificate of his election based upon the result of such canvass, or to show cause before this Court why they should not do so; and the respondent Gamble having answered, signifying his readiness to comply with the mandate of said alternative writ whenever his co-respondents should join in so doing and proceed with the canvass as required by the relator; and the respondents, the Secretary of State and the ¡Attorney General, by Mr. J. B. C. Drew, of counsel, now comes and moves the court to quash the alternative writ upon the following grounds

*721. That the court has not the power to grant the writ in this case.

2. That the relator does not state facts sufficient to entitle him to the relief demanded.

3. The relator has not pursued the proper remedy.'

In support of the first and second grounds of the motion, it is urged that the respondents having met and made a canvass of the returns of the election which had been received by them on the day appointed by law for proceeding with the canvass, and declared and certified the result thereof in due form, (although other and further returns of said election were received by them before the final conclusion by them, which had not been included in ascertaining the result of the election,) and had adjourned sme Me, they were, as a board of canvassers, functus officio, and had no longer any right or power to act further as a board of canvassers and are therefore not amenable to the process of mandamus, the office of which writ is to compel the performance of a duty which has been neglected and which they have still the power to perform.

This position is taken by the Supreme Court of New York in the case of The People vs. The Supervisors of Greene, 12 Barb., 218, but we cannot adopt it as the law governing the case, and it is entirely overborne by the cases cited by the relator’s counsel, decided in Iowa and Illinois. The allegations of the relator show that the respondents have but partially performed their duty and have neglected to comply with the requirements of the law, by refusing to canvass all the returns which were in their possession and which it was their duty to include in determining the result of the election. The respondents are appointed by the law of 1868 to be the canvassers, and their duties are to examine all the returns of the election and to declare therefrom who is elected by the greatest number of votes cast at the election.

The relator alleges that on the 29th day of November, *731870, the respondents met for the purpose of making the canvass, and that at that time the returns had not been received from all the counties in the State; that at the instance of the relator, an order of injunction was procured and served upon them in terms restraining them from further proceeding with their duties until the further order of the Circuit Court or Judge who signed the order; that they thereupon adjourned until the-day of December, on which day a majority of said canvassers proceeded to certify and deelare'the result of the election, as the same appeared from the returns which had been received at the time of their first meeting, although it is alleged the returns had been received by them from all the counties in the State before the conclusion of the canvass.

The object of the law is to ascertain the whole number of votes cast, and who had received the highest number of such votes, so that the choice of the majority of the voters might be ascertained and respected. If the facts are correctly stated by the relator, the respondents neglected to perform this duty, and therefore did not comply with the law, in which case they did not conclude their duties as canvassers, nor put an end to their powers as canvassers by an adjournment sine die.

Their duties and functions are mainly ministerial, but are quasi judicial so far as it is their duty to determine whether the papers received by them and purporting to be returns were in fact such, were genuine, intelligible, and substantially authenticated as required by law; in other words, whether they contained within themselves evidence that they were authentic returns of the election. If, as is alleged, the respondents neglected to examine and include returns, duly and legally made from several of the counties, and therefore but partially performed what they were required by law to do, it must be considered that they have not complied with the law, and that they may be required to do so by means of the process here invoked.

*74It is insisted by the relator that the proceedings by the canvassers were illegal and void, because they were enjoined by the order of a Judge of the Circuit Court from farther proceeding until the further order of the Circuit Judge; and that the respondents did proceed to declare the partial result of the election, of which the relator' complains, before the dissolution of the .injunctional order and without a further order of the Judge. We think the order of the Circuit Judge was unadvisedly made, and that in its form and effect it was essentially a perpetual injunction. It forbade the farther proceeding until permission should be granted by the Judge, and was in effect the abrogation of a statute which authorized and required them to proceed with reasonable dispatch, and it was therefore illegal.

In the view we have taken, however, of the merits of the case, the injunction is of no consequence to either party. It may be said that the canvassers would have proceeded to complete their work on the occasion of their first meeting but for the injunction ; but this cannot affect the case. They did adjourn or postpone the completion of the canvass until, as is alleged, further returns were received, which they refused to recognize and take into the account.

But it is urged that the relator has not pursued the proper remedy ; that the canvass by the Board does not determine the right to the office, and therefore he has yet to pursue his cause of action by the ordinary process of law to determine it.

If this proceeding was intended by the relator to obtain possession of the office, the objection might have force, but he seeks what the law entitles him to, if his statement of facts is correct, vriz: a certificate by the canvassers of the result of the election, as appeared by the returns in their possession at the time they made their final statement, to be recorded in the Secretary’s office, which would be prwna faoie evidence of such result; and the question is, whether he is entitled to this evidence upon the case stated. We think he is entitled to it, and because he is so entitled, he *75may have the necessary process to obtain it. That another form of proceeding may be necessary in order to obtain possession of the office and its dignity and emoluments, does not affect this question. What he desires is, to procure the ordinary and proper legal evidence of his prima facie right, upon which he may be enabled to prosecute that right in the appropriate form of proceeding.

But on examining the alternative writ, we discover that the relator requires more than he is entitled to upon the case stated, and therefore he cannot have the peremptory writ of mandamus in matter and form as demanded. The relator prays that the respondents collectively perform a duty which they have neglected and refused to perform; and farther, that one of them, the Secretary of State, he required to record their future proceedings; and that he give the relator a certificate of his election, to be founded upon the future determination of the canvassers, which, of course, he has not neglected or refused to do; and until the failure or refusal of an officer to perform his official duty, this process cannot be used against him. If the entire duties were required to be performed, under the law, by .the Board of Canvassers, as the making the canvass, certifying the result, entering it of record, and the giving a' certificáte to the person appearing to be elected, the writ might go, upon them failure to perform the first of the series of duties, to enforce the performance of their whole duty pertaining to the subject matter.. But the act required of the Secretary of State to be done after the performance of the duties by the Board of Canvassers, are not duties pertaining to those of the Board, but of the Secretary of State as such, and for which the respondents, as canvassers, are not responsible; and the fact, that one of the canvassers is the Secretary of State, who has the subsequent, duties to perform, does not affect the case. If the Secretary, whose duty it is to do certain things subsequent to the determination of the canvass, was not one of the Board of Canvassers, it would scarcely *76be pretended that the writ could go against Mm as such Secretary in the present case, for it would be an abuse of justice to convict one of non-feasance or misdemeanor in neglecting Ms official duty, either for neglecting to certify to a fact, because the fact does not exist, or where he has not refused to do what may be required, and mulct him in costs when he is not in default. And though the respondents may be required .to proceed and complete the canvass, and certify the result, if they and each of them cannot be required in the present proceeding to do all that is commanded by the alternative writ, the peremptory writ cannot issue. Moses on Mandamus; Tapping on Mandamus, and cases cited.

At the present stage, the peremptory writ prayed' for must be denied, but the relator may amend the alternative writ ¡so as to avoid the obstacle suggested, and if no legal answer be interposed, he will be then entitled to the peremptory writ.

This court, upon full consideration of this question, held to the same effect in King vs. The Co. Corns, of Columbia, and Davidson vs. the same, 13 Fla.

Before farther proceedings were had in this case, the attention of the court was called to the fact that the Legislature, then being in session, had passed an act which had been approved, repealing the 28th section of the law of 1868, relating to. the holding of elections, by which section the respondents were constituted a Board ' of Canvassers; and the section was not re-enacted, nor does the repealing act contain any clause saving proceedings pending or duties unperformed by them.

After argument, it was announced by the court that the present proceedings must be dismissed, because the Board of Canvassers being a special tribunal created by statute, and their duties created by the statute, the repeal of the statute takes away their functions" as canvassers, and they «cannot proceed farther in the 'matter under any law. And *77it follows that they cannot be' compelled to do what the law does not require of them, not even to ijnish what they have commenced. This view is sustained in 6 Pickering, 501, 11 Maine (2d Fairfield), 284; 34 Maine, 14; 36 ib., 62; 40 ib., 507; 41 ib., 158; 10 Wis., 481.

The proceedings are therefore dismissed.