72 Fla. 256 | Fla. | 1916
—This is the third application for leave to amend the petition for alternative writ of mandamus in this cause, accompanied by the proposed amendments.
Mandamus against public officers is a remedy for official inaction.
The duty of the State Canvassing Board of Primary Elections is to canvass the county returns which were duly certified by the County Canvassing Boards to the Governor and Secretary of State under Section 47 of Chapter 6469, Laws of 1913, and the amendments of
Mandamus to compel the State Canvassing Board of Primary Elections to assemble and canvass original and amended returns will not issue unless it appears from the Relator’s petition that such new canvass of the election returns will change the results from that declared in the previous canvass. It is a recognized rule of pleading known and practiced by all members of the profession and enforced by the courts that the facts constituting the cause of action shall be stated clearly and distinctly, to the end that the court may determine from such facts, assuming them to be true, as stated, whether a cause of action exists in favor of the person seeking the particular relief.
The petition of relator is grossly deficient in many particulars, and makes 110 pretension of compliance with the established rules of pleading, and wholly fails to make a prima facie showing of the right which he claims to be his.
In the first place, the petition alleges that since September 21st, the date on which respondents assembled and canvassed the original and amended primary election returns, other amended returns have been received by the Governor and Secretary of State, but the petition fails to show that all such amended returns were made by the County Canvassing Board of the counties from which they came, under or pursuant to judicial orders by alternative or peremptory writs of mandamus; nor does the petition allege what counties have so amended their returns, nor the particulars in which such amendments were
In the second place, the petitioner prays that the “State Canvassing Board of the Primary Election held June 6, 1916, be required to forthwith assemble and proceed publicly to canvass any and all amended and corrected returns, not only from the County of Alachua but also from any other County of the State of Florida, which is now or which may be up to the time of their canvass on file with the Secretary of State and with the Governor,” etc.
But the petitioner’s right exists only to the performance by the Board of Canvassers of its duty as of the date the petition was filed, because up to that date, the official inaction, if any, occurred and can not by any reasonable construction or intendment be extended to a day in the future. It is perfectly obvious to any reasonably intelligent |3erson that an officer can not be said to have neglected to perform his official duty on some day in the future. See Ex Parte Ivey, 26 Fla. 537.
The petitioner’s right to have the Board assemble and canvass the original and amended returns existed, if at all, at the time he filed his petition for a writ of mandamus, which was on October 6th, 1916. That right must rest upon the facts as the)'' then existed, not as they might in petitioner’s opinion occur or exist at some later date.
The.official inaction of the Board occurring, if at all, on October 6th, gave the petitioner his right to a mandamus if he had then made it appear that there was any such official inaction which deprived him then of any benefits under the law. This he has failed to show,
Application to amend the petition is denied and the petition is dismissed.