59 Fla. 630 | Fla. | 1910
A bill in equity was presented in
At the hearing alleged defective ballots asserted to have been voted in the election, were offered in evidence and were objected to as illegal and irrelevant upon grounds that the court could not go behind the returns, and that the ballots were not received from the proper custody. TJie ballots were received in evidence.
In local option elections under the constitution and laws of this State the Board of County Commissioners constitutes the “County Canvassing Board,” authorized to canvass the returns from the election districts and declare the result of the election. See Barton v. State, 43 Fla., 477, 31 South. Rep. 361. Under section 15 Article 5 of the constitution the clerk of the circuit court is also clerk of the Board of County Commissioners. The clerk of the circuit court for Orange county testified that he “acted as clerk of the Board of County Commissioners” when the canvass of the returns was made; that he received the ballots offered in evidence from the County Commissioners, and that they had been in his custody
While the power of the County Canvassing Board may be expressly limited by law in the matter of ascertaining and declaring the result of the election as shown by the returns from the several election districts, the power of the court to consider any legal evidence offered upon an issue of the legality of the election is not -limited by the statute. Where a proper basis is laid for it, the court may examine the original ballots and any other matters directly affecting the election in determining its validity. And the power and duty of the court are not affected by any irregularity or illegality in the action of the County Canvassing Board or other election officers. It was competent for tlie court to determine from the original ballots and the returns and from other papers and evidence relating to the conduct of the election whether-a legal election was held. The statutory remedy by bill in equity is exclusive, therefore the contention that the ballots could not be examined by the court in this proceeding, but mandamus should have been asked to compel the canvassing board to re-assemble and count the ballots, is untenable. State ex rel. H. W. Metcalf Co. v. Martin, 55 Fla., 538, 46 South. Rep. 424.
The allegation that three designated persons were allowed to vote though they had not paid their poll tax and were not qualified voters is not fully sustained by the evidence.
Where the non-payment of a poll tax is the ground upon which it is alleged that an illegal vote was cast, it should be affirmatively shown that the unpaid tax was legally assessable against the voter. The statute exempts certain classes of persons from the payment of poll taxes and it should be clearly shown that the voter did not belong to any of the exempted classes.
This disposition of the points here discussed renders a consideration of other assignments unnecessary.
The decree is affirmed.