302 



FLORIDA. 



the law of the State and the evidence offered in 

 rejecting the votes polled at said precincts. 



5. In rejecting the votes polled at precinct No. 

 three (3) in the county of Monroe, I claim the right, 

 before" the fiiml action of the Board of State Can- 

 vassers, to reconsider my vote thereon for the pur- 

 pose of sustaining the return from said precinct, for 

 the reason that it complies substantially with the 

 requirements of the law on the canvassing and re- 

 turns in the State of Florida. 



I protest also against the disfranchisement of the 

 people of Hamilton County by throwing out the en- 

 tire vote of Jasper precinct, without any charge or 

 proof of fraud or illegal voting, on the alleged 

 ground of irregularity in this, that two Kepublican 

 inspectors, appointed in the interest of the Repub- 

 lican party, filed an affidavit before the board that 

 they absented themselves from the polls several 

 times during the day. I insist that this exclusion 

 of one hundred and fifty votes, whereby the Demo- 

 cratic majority was reduced for the above alleged 

 reason, is a wrong against the people, and a violation 

 of both the letter and the spirit of the laws, both of 

 the United States and of the State of Florida. 



I include in this protest my objections urged to 

 the vote at Archer precinct No. 2 in the county of 

 Alachua, which I moved to reject on account of its 

 falsity, that the return was evidently fraudulent 

 from the clear proofs exhibited in relation thereto, 

 and that the power to reject it on the part of the 

 State Canvassing Board was evident from the mean- 

 ing of the statute under which the board was ap- 

 pointed. 



I also protest, for substantially the same reasons, 

 against signing the certificate of election in the State 

 vote as regards the gubernatorial and congressional 

 elections considering the statement of the other 

 members of the Canvassing Board false and fraud- 

 ulent. 



Respectfully submitted : 



WM. ARCHER COCKE, 

 Attorney-General State of Florida, and ex-oficio 



member of the State Canvassing Board of the 



State of Florida. 



This was promptly published, but the other 

 members and the clerk of the Canvassing 

 Board declared over their signatures that it 

 was not presented before them, or filed with 

 the proceedings. 



While the Board of Canvassers was in ses- 

 sion, an injunction had been granted by Judge 

 White, of the Circuit Court, on application of 

 Geo. F. Drew, the Democratic candidate for 

 Governor, restraining them from canvassing 

 the vote of State officers in any other manner 

 than from the face of the regular returns filed 

 in the office of the Secretary of State. Al- 

 though the order of the court was served upon 

 the board, it finished the work as it had begun, 

 against the protest of the Attorney - General. 

 Judge White then summoned the members of 

 the board to show cause why they should not 

 be adjudged guilty of contempt. Meantime the 

 Supreme Court of the State, on petition and 

 motion of Mr. Drew, granted an alternative 

 writ of mandamus, directing the board to show 

 cause why they did not canvass the vote from 

 the face of the returns. The court ordered 

 the issues to be made up by the 16th of De- 

 cember. The proceedings before Judge White 

 were then dismissed. The answer of the re- 

 spondents in the case before the Supreme Court 

 was filed on the 16th, and a demurrer entered 



on behalf of the relator Drew. The argu- 

 ments of counsel were completed on the 20th, 

 and the decision of the court rendered by Judge 

 Westcott on the 22d, awarding a peremptory 

 writ of mandamus directing the Board of Can- 

 vassers to recount the votes according to the 

 face of the returns, on or before the 27th, and 

 submit the result before the court on the 28th. 

 Judge Westcott, in delivering the opinion of 

 the court, held that the Board of Canvassers 

 had no judicial power to determine the legality 

 of a particular vote or election. He said : 



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 officers of similar character, ex- 

 clude what purports to be a return for irregularity, 

 still everything they are authorized to do is limited 

 to what is sanctione'd 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 general power to issue subpoenas, to 

 summon parties, to compel the attendance of wit- 

 nesses, to grant a trial by jury, or do any act but 

 determine and declare who has been elected as 

 shown by the returns. They are authorized to enter 

 no judgment, and their power is limited by the ex- 

 press words of the statute, which gives them being, 

 to the signing of a certificate containing the whole 

 number of votes GIVEN for each person for each of- 

 fice, and therein declaring the result as shown by the 

 returns. This certificate thus signed is not a judicial 

 judgment, and the determination and declaration 

 which they make is not a judicial declaration that 

 is, a determination of a right after notice, according 

 to the general law of the land as to the rights of 

 parties, but it is a declaration of a conclusion lim- 

 ited and restricted by the letter of the statute. Such 

 limited declaration and determination by a Board 

 of State Canvassers has been declared by a large 

 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, legis- 

 lative, or judicial, which is not bound and fixed bj> 

 the returns before them. 



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 judi- 

 cial 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 power 

 of the board is 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 

 shall be unable to determine the tnae vote for any 

 officer or member, they shall so certify, and shall 

 not include such return 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 sa'd Board of Canvassers." 

 The words true vote here indicate the vote actually 

 cast, as distinct from the legal vote. This follows 

 1. From the clear general duty of the canvassers, 

 which is to ascertain and certify the "votes given" 

 for each person for each office j and, 2. Because to 

 determine whether a vote cast is a legal vote is be- 

 yond the power of this board. As to the words 

 " irregular, false, or fraudulent," in this connection, 

 their definition is not required by the questions 



