State ex rel. Drew v. McLin

| Fla. | Dec 12, 1876

Me. Justice Westcott

delivered the opinion of the court •on the demurrer.

The view that the Board of State Canvassers is a tribunal having power strictly judicial, such as is involved in the determination of the legality of a particular vote or election, cannot be sustained. The Constitution of this State (Arti- . ele III., and Section 1 of Article VI.,) provides that “ the powers of the government of the State of Elorida shall be divided into three departments: Legislative, Executive and Judicial; and no person properly belonging to one of the departments shall exercise any functions appertaining to .either of the others, except in those cases expressly provided for by this Constitution.”

“ The Judicial power of the State shall be vested in a Supreme Court, Circuit Court, County Courts, and Justices of the Peace.”

All of the acts which this Board can do under the statute must be based upon the returns; and while in some cases the officers composing the Board may, like all ministerial ©facers of similar character, exclude what purports to be a return for irregularity, still everything they are authorized to do is limited to what is sanctioned by authentic and true returns before them. Their final act and determination must be such as appears from, and is shown by the returns from the several counties to be correct. They have no gen-feral power to issue subpoenas, to summon parties, to compel the attendance of witnesses, to grant a trial by jury, or do any act but determine and declare Avho has been elected as shown by the returns. They are authorized to enter no judgment, and their power is limited by the express words of the statute, which gives them being, to the signing of &. certificate containing the whole number of votes given foir each person for each office, and therein declaring the results: as shown by the returns. This certificate thus signed is not', a judicial judgment, and the determination and declarations which they make is not á judicial declaration—that is, a determination of a right after notice, according to the general! law of the land as to the lights of parties, but it is a declaration of a conclusion limited and restricted by the letter off the statute. Such limited declaration and determination by a Board of State Canvassers has been declared by a larges •majority of the courts to be a ministerial function, power and duty, as distinct from a judicial power and jurisdiction.. Indeed, with the exception of the courts in Louisiana^ and! perhaps another State, no judicial sanction can be found for the view that these officers are judicial in their character,, or that they have any discretion, either executive, legislative or judicial, which is not bound and fixed by the return© before them. The duty to count these returns has been enforced by mandamus so repeatedly in the courts of the several States of the Union, that the power of the courts in thi© respect has long since ceased to be an open question. Mr.. Justice Smith, in the very celebrated case of the Attorney-General ex rel. Bashford vs. Barstow, (I Wis., 813,) when speaking of the powers of the Board of State Canvassers,, after reciting their power to “ determine ” the result of ant election from the returns, says: “ These are not judicial but purely ministerial acts.” We must, therefore, decide that the general nature of the power given by the statute is ministerial, and that to the extent that any strictly and purely judicial power is granted, such power cannot exist.

This brings us to the consideration of the only remaining; general question as to the powers of the Board under the statute.

While the general powers of the Board are thus limited to and by the returns, still as to these' returns the statute provides that “ if any such returns shall be shown or shall .■appear to be so irregular, false or fraudulent that the Board «hall be unable to determine the true vote for any officer or member, they shall so certify, and shall not include such areturn in their determination and declaration; and the Secretary of State shall preserve and file in his office all such returns, together with such other documents and papers as may have been received by him or by said Board of Canvassers.” The words true vote here indicate the vote acimall/y tsast, as distinct from the legal vote. This follows, first, from éhe clear general' duty of the Canvassers, which is to ascertain and certify the “ votes given ” for each person for each office; and, second, because to determine whether a vote oast is a legal vote is beyond the power .of this Board. As 'to the words “ irregular, false and fraudulent ” in this connection, their definition is not required by the questions xaised by the pleadings in this case. These respondents have not alleged that they have before them any return so irregular, false or fraudulent ” that they are unable to determine the actual vote cast in any county as shown by the returns; and nothing can be clearer than that the counting of returns sufficiently regular to ascertain the whole number of votes given, and signing a certificate, are merely ministerial acts. Under these pleadings the genuineness .and regularity of the particular returns in question here are .admitted. "We will say, however, that the clear effect of this clause in the statute is that a return of the character named shall not be included in the determination and declaration of the Board; and that it has power to determine the bona fide character of the returns dehors their face. It is not within the power of this Board to refuse to count some of the votes embraced in a return and to count others «embraced therein. They must, count the whole of the return, or -must reject it in toto. We will also say that the powers here conferred are ministerial powers. It is true that in some respects these powers are something more than simple counting or computing, but they are powers which necessarily appertain to the discharge of every ministerial duty of this character. Their existence is no obstacle to the control of such officers by mandamus from a court having jurisdiction of the subject-matter.

In defining the duties of a Board of State Canvassers, where there was no like cause to this in the act defining their powers, this court, in 13 Fla., 73, said: “ 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.” The power to ascertain the regularity, the genuineness and the honesty of a return, are-powers of like character to those mentioned and thus described in that case.

By the statute of 1868 the duty and power of the Board of State Canvassers was confined exclusively to the compiling of such returns of any election as should come to their hands from the County Canvassing Boards, and upon computation of the aggregate vote, as shown by such returns, to ascertain who had received the highest number of votes for any office, and to certify the result and declare therefrom who was elected to any office.

Under this act it became the duty of the State Board to determine ministerially the result, but necessarily, by the exercise of discretion and judgment, they must first determine that the papers before them were genuine, and that they were executed in form and matter substantially according to the requirements of the statute, and that they were, in fact and in law, the returns of the election. This, as was said by this court in a former case, was the exercise of a quasi judicial power. To the extent here indicated, a judgment in the nature of a judicial function is necessarily exercised, for if it be otherwise, the whole law is inoperative in respect to the power of the Board to do any act whatever. The Constitutional provision that the officers of one department of the government are strictly forbidden to do any act, or to exercise any function pertaining to any other department, unless expressly provided for in the Constitution, must be taken in connection with the provision (Section 5, Article XIY.,) authorizing and requiring the Legislature to provide for ascertaining.the result from “ the returns of elections.” This is clearly an express authority for providing that “ returns of elections ” must be received, considered and passed upon by such officers or persons as might be designated by the Legislature. And the necessary conclusion is that such officers may be authorized by the Legislature to inquire into the truth or falsity of the returns sent to them, and if, upon such inquiry, they be satisfied that the return does not show the vote actually cast at the election, but that it states a falsehood as to that fact, they may lay it aside and refuse to count the return as is provided in the act of 1872.

“ If,' as is here alleged by the relator, the respondents neglected to examine and include returns duly and 1 egally made from several of the counties, and, therefore, but partially performed what they were by law required to do, it must be considered that they have not complied with the law, and they must be required to do so by means of the process here invoked.” This leads to a careful examination of the pleadings herein made.

The case is before us upon a demurrer to the return of the respondents to the alternative writ. The alternative writ sets up the counting and computing by the Canvassers of the votes given as shown by the returns from certain counties named. It alleges that returns of said election from the several counties of the State, wherein elections have been and were held on the 7th day of November for the election of Governor, have been received at the office of the Secretary of State; that there has been a pretended canvass of snch returns, and that as to the counties of Jackson, Hamilton, Monroe and Manatee, the said Canvassers have not confined themselves to a canvass of the returns from said counties, although the same were not unintelligible or fraudulent, but genuine and Iona fide. The relator then prays direction to such Board of State Canvassers that they do canvass and count the election returns for the office of Governor from each and every of the counties of the State wherein an election was held for said office, and that they do canvass and count the said election returns from the said counties of Jackson, Hamilton, Manatee and Monroe. The writ then proceeds in the usual and proper form, which it is not necessary here to insert. The issues presented by the answers, original and amended, are special and precise, setting up in each case where the returns from any of the said counties were not counted and computed, the particular reason and cause for such action by the Board. The question arising upon the demurrer is, do these answers show sufficient cause in law why the peremptory writ ¡should not be awarded? "We examine each of the reasons assigned in the answer as to the several counties, being guided and controlled in our conclusion by our views of the powers of the Board as hereinbefore defined. ,

As to the Oownty of Jael&son:

The answer sets up that five hundred and fifty-seven(557) votes were deducted from the votes cast in the county of Jackson, as appeared from the face of the return, upon the ground of irregularity and gross fraud in the conduct of the election.

Upon the face of this answer, and in view of the express allegations of the alternative writ as to the genuineness, intelligibility and bona fide character of the return of the votes cast, the only question raised here is whether, under this statute, the Canvassers can reject a return of the votes cast, or any of the votes cast, for irregularity or fraud in the conduct of the election.

"Whether irregularities or fraud in an election will authorize the rejection of a vote cast, counted and returned in a genuine, bona fide return, is a question of law not within the power of this Board to determine. If the return was regular, genuine and bona fide, as it was admitted to be by the pleadings, it was the duty of the Board to count it.

As to the Goimty of Hamilton:

The answer alleges that there was á deduction made from the votes cast at one precinct, as appeared from the face of the return, upon the ground of gross .violation of the elec- . tion law and fraud in the conduct of the election. What has been said as to Jackson county covers this case, and there is no necessity for repetition.

As to the Oounty of Monroe:

The answer alleges that "the vote of one precinct was deducted from the vote as appeared from the return from said-county, upon the ground of irregularity in the conduct of the election and fraud in the conduct of the inspectors of said election at said precinct. What has been said covers the matter of irregularity in the election. As to fraud in the conduct of inspectors at a precinct, it is not a ground upon which the Canvassers can reject a return from the county which is genuine and bona fide. What is fraud in such an inspector is a question of law; so also the question whether such fraud by inspectors can vitiate an election is a question of law. Both are judicial questions beyond the power of the Board to determine.

As to the Cownt/y of Ma/natee:

The answer sets up that said Board did not include the return from said county of Manatee in its determination and declaration of the vote cast at said election, upon the ground of irregularity and fraud in the conduct of the election on said 7th day of November, 1876. The matter of irregularity and fraud here alleged has already been considered in the ease of other counties.

The answer alleges further as to this county, that the Board did not include the vote cast therein, as it appeared on the face of the return, because it appeared in evidence that there was such irregularity and fraud in the conduct of the election in said county in receiving votes of persons not registered, and there being no registration list furnished inspectors, and no designation of voting places, and no notice of election, that said Board could not ascertain the true vote.

A return of votes oast in a county at a general election, of which notice is given throughout the State by the proper executive authority, no notice of election by local officers (county) having been given, is not a return either irregular, false, or fraudulent, within the meaning of the statute regulating and defining the powers and duties of the State Canvassers.

Like the question of the legality of a 'vote, this is a question of law to be determined by a court—a judicial question beyond the power and jurisdiction of a ministerial- officer under the law, constitutional and statutory. A return of votes cast in a county at such general election, duly signed by acknowledged county officers, and regular in form, of which election no notice by county officers as to polling places is given, (the time of election being according to the general notice,) is a return which the State Canvassers must count, as it is neither irregular, false, nor fraudulent within the meaning of the statute. Whether such vote is effective to vest the office is a question judicial in its character, which this court upon mandamus should no more determine than should the State Canvassers. Such Canvassers must count such returns, and so this court should order. Whether all these votes so returned are legal votes is another question,which neither the State Canvassers can determine in their action, nor should this court determine it when it is sought to direct them to perform ministerial duties. .

As to the OomiUes of Hernando, Ora/nge, wnd Leon:

The answer states that a number of votes were deducted from the returns of votes cast in said counties because they were illegally cast, and that a .vote was deducted from the return of Jefferson county/because it was fraudulently cast. These, as we have before said, are questions which the law does not authorize the Board to determine. They must count these returns, as they admit them by the pleadings to be returns within the meaning of the statute. They nowhere allege the returns to be so “ irregulai*, false, or fraudulent,” that they cannot determine the vote cast from them.

As to the Gounty of Olay:

The answer states that 35 votes were added upon the ground that said votes had been improperly rejected by the County Canvasse$f^!| the vote of said county at said election, and that six votes cast were deducted upon the ground that said votes were cast by non-residents of the county. It follows from the view we have taken of the law applicable to the powers and duties of the State Canvassers, that any statement of votes by precinct inspectors, which were not included in the canvass made by the County Canvassing Board, cannot be counted by the State Board, the powers of the latter being confined by law to counting only such votes as are duly returned by the County Board. Such votes cannot be legally included in the estimates of the State Canvassing Board.

The question of jurisdiction raised in the pleadings, as well as the other questions of practice and power, are all adjudicated in the case of the State on the relation of Bloxham vs. The Board of State Canvassers, 13 Fla., 71, 5-6, and it is unnecessary to repeat here what is there said.

Under the pleadings, and the Constitution and statute as applied to them, our judgment is that the demurrer must foe sustained and the peremptory writ must be awarded.

On the 22d day of December, after the reading of the •foregoing opinion, the respondents, McLin and Cowgill, moved for leave to file an amended answer to the alternative writ, setting forth the character of the election returns as the same appear upon their faces; but on the next day this motion was withdrawn, and the judgment of the court .sustaining the demurrer, and directing the issuance of the ¡peremptory writ, was entered, as follows :

“ This day came the parties by their attorneys, and thereupon the matters of law arising upon the relator’s demurrer to the answers, original and amended, of the respondents, being argued, it seems to the court that the said answers and the matter therein contained, are not a sufficient answer in law to the alternative writ issued herein, and that said return is insufficient. Therefore it is considered that a peremptory writ be awarded directed to the said Samuel B. McLin, Secretary of State, Wiliam Archer Cocke, Attorney-General, and Clayton A. Cowgill, Comptroller, Board of Canvassers of Elections of the State of Florida, commanding them that they forthwith meet and convene and reassemble as a Board of State Canvassers in the office of the Secretary of State, to canvass and eount all the election returns on file in the said officé of the Secretary of State of the said election for the office of Grovernor, held on the 7th day of November, A. D. 1876, and that as such Board of State Canvassers they canvass and count the returns for said office from each and every of the counties of this State, wherein an election was held for said office, and, especially, that they do canvass and count the said election returns from the said counties of Jackson, Hamilton, Manatee, and Monroe, and that they determine from* a canvass and count and examination and tabulation of all the votes cast for the said office of Grovernor at said election in all the counties of the State, as shown by the election returns of said election received at the office of the Secretary of State, who has been elected by the highest number of votes to the said office of Governor as shown by the said returns, and that they do, as such Board, make and sign a certificate, as required by law, containing in words and figures written at full length, the whole number of votes given at said election as shown by said returns for the said office of Governor of the State of Florida, and the number of votes given for each person voted for for said office, and in said certificate declare the result of the said election for Governor of the said State.

“ And that they do perfectly execute this writ on or before the 37th day of December, A. D. 1876, and how they shall have executed it make return to our Supreme Court on that day by four o’clock P. M. in writing, to be filed in the Clerk’s office of said court.”

The peremptory writ was issued pursuant to the judgment of the court, and served upon the respondents.

On the 27th day of December, at 1.30 P. M., the Attorney-General filed a paper purporting to be an answer to the peremptory writ, in which he states that on the 25th of December he made application to the Secretary of State, McLin, to know upon what day he would .convene the Board of State Canvassers to execute the judgment of the court, and that he replied, “Not to-day, Christmas being a holiday; to-morrow you will be notified.” That on the 26th he received a notice from the said Secretary of State to meet with him and the Comptroller on the 27th, at elevm o’eloek A. M., for the purpose of making the re-canvass as ordered by the court; but that on the 27th, before the hour of elevm A. M., he received another notice from him withdrawing the former, and that thereupon he requested of the Secretary of State and obtained immediate access to the election returns ; that he made a canvass of the same, the result of which he gives as follows: The whole number of votes cast for the office of Governor 48,732; and that of these Geo. F. Drew received 24,613, M. L. Stearns 24,116, D. S. Walker 1, and W. L. Hutchings 1, and one blank. In this answer he also reports having made a canvass of the votes cast for Lieutenant-Governor, and gives the result of the same, and appends to the answer a tabulated statement of the number of votes cast in each of the several coimties for the office of Governor and Lieutenant-Governor.

On the same day, at four o’clock P. M., the Secretary of State, McLin, who was chairman of the Board, reported to the Court, in writing, that the Board had organized for the purpose of re-canvassing the votes for Governor in obedience to the order of the court, and was engaged in making the canvass, and would report to the court at the earliest practicable moment.

On the 28th of December, the Secretary of State, McLin, and the Comptroller, Cowgill, made a return to the peremptory writ, the same consisting of a certificate under section 4 of the statute heretofore set out, and which is more fully explained in the opinion of the court following hereafter, giving the whole number of votes cast at the election and given for each office, and for each person for each office, and members of the Legislature, and of the following paper pur. porting to be both a protest and • return of the result of a canvass of votes cast for Governor and Presidential Electors:

“ The said Samuel B. McLin, William A. Cocke and Clayton A. Cowgill, members of the Board of Canvassers of the State of Florida, acknowledging service upon them in due form of the writ of mandamus issued by order of the Supreme Court, in the above entitled proceeding, and taking cognizance of the orders therein, both general and special, and particularly the requirement making report of the action of said Board, under the said writ, due to the said court at the hour of four o’clock P. M., of December 27, beg leave respectfully to make return to the court in discharge of its orders in the premises, and also of said writ, requesting that this, their return, may be accepted in discharge thereof.

First. They respectfully, but as of right, enter their protest against doing, and being required to do, any and all the things of them ordered by the said writ of the said Supreme Court; and in connection therewith they deny that the court could rightfully take jurisdiction of the said proceeding and assume to issue said writ against them, because they say the election, the returns of which they are directed now to re-canvass, was a mixed election, being partly for officers of the State of Florida and partly for Representatives in Congress, of which election they say they were officers within the meaning of Section 5515 of the Revised Statutes of the United States; and being such officers, they say they were bound to observe every duty by the law of Florida imposed upon them in regard to such election, subject to the pains and penalties, by the said section prescribed, for neglect or r.efusal to perform such, duties. And as they were not at liberty, under the said election law of Florida to separate the returns for Representatives in Congress from the returns for State officers, for purposes of canvass and count, neither can the court make order requiring them to canvass said returns separately and by different rules.

They further say in protest that as such Board of Canvassers they did heretofore, to-wit: on the day of the 6th instant, assemble, and, as in their judgment, they thought required by the law of Florida, section 4 of the act approved February 27, 1872, canvass the returns of the election held November 7, 1876, being the same returns they are now by the court ordered and required to re-canvass; that in such former canvass some of the said returns were contested for alleged irregularity, falsity and fraud, in which case proof was heard by the Board to ascertain, if possible, the true vote cast for the several candidates in the counties or precincts of counties so contested, with result that in some instances the aggregate of votes as it appeared on the face of some of the returns was changed by the Board to^ correspond with the aggregate of the true vote, as the same appeared by the evidence, while in other cases the returns were entirely rejected, and that, in conclusion of the inquiry, the majority of the^Board did determine and declare, as to them appeared right, just and lawful, that the candidates for Governor received votes as follows:

Marcellus L. Stearns received 23,666 votes;

George F. Drew received’23,208 votes.

And that the candidates for Lieutenant-Governor received as follows: '

David Montgomery received 23,578 votes;

Noble A. Hull received 23,273 votes.

And that the candidates for Congress received as follows:

William J. Purman received 12,356 votes;

R. H. M. Davidson received 12,061 votes;

Horatio Bisbee, Jr., received 11,289 votes; ■

Jesse J. Finley received 11,148 votes.

And that the candidates for Presidential Electors received as follows:

Frederick C. Humphreys received 23,849 votes;

Charles H. Pearce received 23,844 votes;

Thomas W. Long received 23,843 votes;

William IT. Holden received 23,848 votes;

James E. Yonge received 22,923 votes;

Wilkinson Call received 22,919 votes;

Robert B. Hilton received 22,921 votes;

Robert Bullock received 22,919.

And 'that candidates for other offices involved in the said election, each received the number of votes set opposite his name, the same being considered his true vote, all which will more fully appear by reference to the certified declaration of result on file in the office of the Secretary of State, whereupon.the said Board did, by resolution passed, adjourn their session sine die, and cease to have legal existence, insomuch that it is not possible for any court to reassemble them or revive their functions for any purpose whatever.

Wherefore, in nowise abating our respect for the court, we declare of the re-canvass now hereinbelow returned to the court, made in conformhw to the rules laid down for such re-canvasá in the decision promulgated by the Court in the above entitled cause, and, on account of such rules, attaining another and different result from the first, and in our judgment, only lawful canvass, that we regard it as a return void of effect.

And we respectfully pray the Court that this protest may be admitted as part of such return, and become of the record of the Court.

And now, obediently to the order and writ aforesaid, the undersigned, having in the first place re-assembled as a Board of Canvassers of the State of Florida, proceeded to re-canvass the returns of the several counties of the election for Governor, taking for the purpose the returns now on file in the office of the Secretary of State ; and they return the following as the determination and declaration of the result of such re-canvass, to-wit:

Of the candidates for Governor—

George E. Drew received 24,179 votes;

Marcellas L. Stearns received 23,984 votes.

And the undersigned make further return to the Court, and say that, though not ordered so to do by the Court, for various reasons they deemed it best to make, while re-assembled as a Board as aforesaid, a re-eanvass of the said returns of the said election on file in the office of the Secretary of State of and concerning the election of other officers voted for at said election, for which the court is respectfully referred to the certificate of the result of the election herewith appended as part of this return.

And the undersigned further inform the court that we regard our former canvass of the .returns of the election for electors for President and Yice-President of the United States, on file in the office of the Secretary of State, as conclusive ; yet, in view of the decision of the Supreme Court we have re-examined the said returns and find that a re-canvass of them, according to the said decision, would show that of the candidates for said electors—

Frederick C. Humphreys received 24,215 votes;

Charles IT. Pearce received 24,211 votes;

Thomas Long received 24,209 votes;

William H. Holden received 24,215 votes;

James E. Yonge received 24,004 votes;

Wilkinson Call received 24,001 votes ;

Robert B. Hilton received 24,001 votes;

Robert Bullock received 24,001 votes ;

All of which is respectfully submitted.

Sam. B. McLiet,

Secretary of State cmd Chairman Bornxl of State Ccmvassers,

C. A. Cowgill,

Comptroller, of Public Accounts.”

On the same day the Attorney-General filed the follow- \ lag protest against said return of the Secretary of State and Comptroller:

To the Supreme Court of the State of Florida:

■ I ask permission of the court to file this my protest against the return of S. B. McLin and C. A. Cowgill, members of the Board of State Canvassers, in the above stated case;

1st. I protest against the return signed by the judge, &c., from Baker county, because the Board has knowledge that it does not give the true vote, and is therefore false and fraudulent.

2d. I protest against throwing out the return from Clay .-county, because it is in all respects regular on its face. The - fact that it omitted the vote at one precinct, and referred the question of counting the 'vote of said precinct to the Board, is no ground for throwing out the whole vote of the - county, and is in direct opposition to the decision of the . Supreme Court. Wm. Archer Cooke,

Attorney- General.

Upon the filing of such return of the Secretary of State, McLin, and Comptroller Cowgill, the relator moved to strike- • out from the same all from the word “First,” on page 55, • down to and including the words “ record of the court,” on page 57; and this motion was argued by

Mr. JS. B. Hilton and Geo. P. Barney for the relator, and . Mr. J. P. C. Emmons for respondents, McLin and Cowgill'.

And afterwards, on the first day of January, A. D. 1877,

Mr. Justice * Westcott

delivered the opinion of the court.

We propose not only to dispose of the motion in this case made and submited this morning, but also to announce our ■ views in reference to the whole subject matter of what is f,called a return to the peremptory writ in this cause.

The first and only general question involved in this whole matter is, what is in form and substance the legal and proper paper to be filed by a respondent in response to a peremptory writ of mandamus ?

The second question is, have the - respondents complied-with the law in this respect ?.

The third question is, in case they have or have not complied with the law, what is the proper order to be made by the court in this behalf ?

To the first question, what is the legal and proper paper to be filed by a respondent in response to a peremptory writ of mandamus? Upon this question there is no conflict in the authorities. “ There is strictly no retwm to a peremptory writ. It is to be obeyed, and a certificate is made • of what has been done.” This is the language of Mr. Justice Woodward, in delivering the opinion of the Supreme-Court of Iowa, (9 Iowa, 335,) and such is the view announced by all the courts, English and American, so far as-the cases decided by them- upon the subject, have been examined by us. (Tapp, on Man., 61, 389, 415, and 456.) The granting “ a peremptory -writ implies that the party has been fully heard, and therefore he can- allege no reason why he has not obeyed it.” Such is the language of Mr. Chief-Justice Ruffin, of the-Supreme Court of North Carolina, in the case of The State vs. Robert Jones, et al., 1 Ired., 414. If such be the necessary inference, and in this case such inference corresponds with the fact,, for the parties have been fully heard, then the pleadings,, so far. as the propriety of granting the writ is concerned, and as to matters-of defense to the action- proper, are closed, and the necessary result is that no such matter can be considered or be made-the subject matter of any response to this peremptory writ.

■ We have to apply these plain simple principles of law to-what here purports to be-a-resporise to the peremptory writ.. The first paper which we.1 have on file connected with what. , purports to be a “ return ” to the writ, is the certificate which .constitutes the evidence and statement of a.canvass made by the Board of State Canvassers of votes cast at a general election held in this State on the seventh of h¡ ovember, A. B. 1876. The statute regulating this subject provides that the Board shall make and sign a certificate containing in words written at full ,length, the whole number of votes given for each person for each office, and for members of the Legislature, and therein declaré the result, which certificate shall be recorded in the office of the Secretary of State in a book to be kept for that purpose, and the Secretary of State shall cause a certified copy of such certificate to be published once in one or more newspapers printed at the seat of government. The proper and only legal place of deposit of this original certificate, constituting the evidence of important action by State authorities, is the office of the Secretary of State. It is, under the statute, the basis of important official action which the daw imposes upon him, and it should be upon the files of his office as evidence of the fact ■that the certificate recorded and published by him is a eor.rect copy of the original, and that his duty in this respect has been properly discharged. As to this paper,.therefore, it is improperly and illegally on the files of this court. Under the statute it has its proper..place, and to that place tit is as much the plain duty of this court to send it as it is .the manifest duty of this officer to receive and file it. Therefore it is the order of the court that the Clerk of this Court •deliver this paper to the Secretary of State of the State of Florida. And the Clerk of this court is directed to trans,-mit to said officer at the same time a certified copy of so much of this opinion as refers to the proper place of deposit •of this certificate.

The second paper on file connected with ,wha.t purports to be a “ return ” is what is called the • “ protest ” of ..the • respondents, Cowgill and McLin. This court .is .not'.and should not be offended at the filing of any respectful and proper protest to any or all of its action at the proper time and under circumstances which authorize such action. Such protest will always, when so filed, receive that respectful and calm consideration which it is the right of every man to have at the hands of a judicial tribunal. In this ease the - matter of jurisdiction which this “protest ” proposes again to raise was made the subject of defense by the repondents, Cowgill and McLin. We have heard them fully. We have determined that we have jurisdiction. It is our duty 'to enforce it. It is the duty of the respondents to obey. Under the circumstances of this case, and as a response setting up ■ matters of defense as to which these parties have been already heard, it is not proper here. We cannot hear further argument as to this matter. We cannot act as though the pleadings proper in this cause are now open to amendment.. The pleadings are closed, and the simple duty of the respondents is to obey the writ and to make a certificate of their obedience. Again, this paper, like the first paper we have considered, purports to set up a canvass of votes cast for other persons and officers than George E. Drew, Mareellus L. Stearns and other persons for Governor. The only relator in this case is George E. Drew. All of the other persons mentioned in these papers as receiving votes for various offices, and who are declared elected to such offices, are in no manner parties to this controversy. As a judicial tribunal we should take no action which can directly affect their rights or approve any action by the Board of Canvassers affecting their rights, except according to the law of the land, which is after notice, hearing and trial. In a pleading in equity this would be impertinent and irrelevant matteri ’ In a common law proceeding it is surplusage to be quashed and set aside upon motion. It is therefore ordered that the same be set aside and quashed as surplusage, having no connection with any proper response to the peremptory writ. This court is not a Board of Canvassers. If the Board see proper to canvass the returns of votes with reference to offices other than that of Governor, in conformity to their duty as defined by this court, that is a matter as to which we can decide nothing. It 'is not here involved.

As to the separate answer of respondent, William Archer Cocke, Attorney-General of the State of Florida, it must be set aside and quashed. Its approval, like the approval of what purports to be a protest, would, be approval by this court of action by the Board affecting others than the relator in this cause. This brings us to the consideration of the particular motion here made. It must be denied. This court cannot simply strike out that portion of the protest sought to be stricken out under this motion, thus leaving a large' part of this paper which we have already stated must be quashed.

In determining this matter the court must be permitted to say that its decision here establishes in all future proceedings by mandamus what is in form and substance a proper response to a peremptory writ in this State. It becomes us to be careful, and that we do not prescribe a rule of practice which may hereafter be shown, as applied to the rights of this people, to be erroneous. The conclusion we reach is, that these respondents have made no response which this court can accept.

Their duty is plain and simple under this peremptory writ. It is to canvass, count, and add up returns of votes cast in the several counties in this State for the persons voted for for the office of Governor. This act involved writing to the extent of one or two pages, and we think the duty can be performed in two or three hours. ,

The order is that the “ return ” to the peremptory writ is quashed; that the paper purporting to be a certificate of a canvass of votes cast on the seventh of November A. D. 1876, at a general election in this State, be returned to the office of the Secretary of State by the Clerk of this court; that what purports to be a protest, as well as the return, signed by William Archer Cocke, Attorney-General, he quashed ; that an order be made repeating the peremptory writ, and directing a strict compliance with the order and direction of the court in this behalf; and that the respondents do perfectly execute the duty heretofore and hereby enjoined upon them bjr half-past five o’clock p. m. of this day.

After the filing of this opinion, the following order was entered:

The court having considered the motion of relator, and being advised of its opinion to be given in the premises, it is ordered that the motion of the relator to strike out certain portions of the paper called a “ protest,” filed herein by the respondents, be and the same is denied.

Ordered further, that the said paper called a “ protest ” be and the same is set aside and quashed as in no manner constituting a proper response to the peremptory writ; and as to the separate answer of the Attorney-General, it is ordered that the same be set aside and quashed.

It is further ordered, that the paper purporting to be a certificate of a canvass of votes given at a general election in this State, signed by the Board of State Canvassers, he returned by the clerk to the office of the Secretary of State, together with a copy of so much of the opinion of this court herein as relates to the proper place of deposit of said paper.

And it is further ordered, that the respondents strictly comply with the order and mandate of this court in this behalf, to-wit: That they canvass and count the returns for said office from each and every of the counties of this State, wherein an election was held for said office; and especially that they do canvass and count the said election returns from the said counties of Jackson, Hamilton, Manatee and Monroe, and that they determine from a canvass and count and examination and tabulation of all the votes cast for the said office of Governor, at said election, in all the counties of the State, as shown by the election returns of said election" received at the office of the Secretary of State, who has been elected by the highest number of votes to the said office of Governor as shown by the said returns; and that they do, as such Board, make and sign a certificate as required by law, containing in words and figures written at full length the whole number of votes given at said election, as shown by said returns, for the said office of Governor of the State of Florida, and the number of votes given for each person voted for for said office, and in said certificate declare the result of the said election for Governor of the said State; and that they do perfectly execute the duty herein and hereby enjoined by the hour of thirty minutes past five o’clock P. M. of this day.

And on the same day this order was duly served on the respondents, and they filed a return to the peremptory writ, stating' that in pursuance to said writ they had proceeded to re-canvass, according to the face of the returns as made by the county canvassers, the votes cast at the election held on thé 7th of November, 1876, for Governor of Florida. In this return there is given a detailed statement of the number of votes cast in each separate county for the office of Governor, and for each person for such office, except the county of Clay, the returns from which the Board rejected, “ because on their face they appeared to be false and only represented a part of the votes actually cast for Governor in that county.” This return also states as. the result of the canvass that the whole number of votes cast in the State for Governor was 48,166, and that of these M. L. Stearns received 28,984 and George F. Drew 24, 179, D. S. Walker 1, Irander Trearson 1, and William Hutchins 1, and concludes by certifying and declaring that George F. Drew was elected Governor of Florida. Attorney-General Cocke appended a noté to this return stating that he differed from the majority of the Board as to rejecting the Clay county return, and as to which was the legal return from Baker county.

On the 2d day of January, 1877, the respondents filed an amendment to the above return, stating that they had filed in the Secretary of State’s office a certificate under said Section 4 of Chapter 1868, Laws of Florida, containing in words written at full length the whole number of votes given for the office of Governor on the 7th day of November, 1876, as appears by such re-canvass of votes.

The court thereupon made the following order, striking out the detailed statement of the votes cast in the several counties from said return, so as to make the same conform to the views of the court:

And now, on reading and filing the certificate of the respondents under date of January 1,1877, and the additional certificate of the respondents filed this day, and the relator not objecting, it is considered by the court that the said respondents have substantially complied with the mandate of this court in this behalf. But, because the respondents have incorporated in their said certificate a detailed statement of votes cast in the several counties at the late election, which said detailed statement was not required by the order of this court, and with which this court in this proceeding has no concern, and in the making and incorporating such statement in their said certificate the said respondents have unnecessarily encumbered the records of this court with matter not pertinent or material, it is therefore ordered by the court, of its own motion, that all such detailed statement be and the same is hereby quashed and struck out, leaving and saving the rest and residue of said response to stand as a substantial compliance with the requirements of the law as to the mattpr before this court.

It'is further considered- and adjudged that the respondents, Samuel B. McLin and Clayton A. Cowgill, pay the costs of this proceeding.