FLORIDA. 



raised by the pleading in this ease. These respond- 

 ents have nut .alleged tlmtthcy Imve before them any 

 return "so irregular, fulac, or fraudulent," tliut they 

 ure unable I" determine tiie actual vote cast in any 

 county, an >h\\ n by the returns; and nothing can be 

 r than that the counting of returns sufficiently 

 regular ti asivrtuin the whole number of votes given, 

 iii iitr a certificate, are merely ministerial acts. 

 I n. I. -r theMO pleadings the genuineness and regular- 

 ity of the particular returns in question here are ad- 

 mitted. We will say, however, that the clear effect 

 of th'iM clause in the statute is that a return of the 

 character named shall not be included in the deter- 

 mination and declaration of the board; and that it 

 has power to determine the b&na-jide character of the 

 returns de hort 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 tsiiy that the 

 powers here conferred are ministerial powers. It is 

 true that in some respects these powers arc some- 

 thing more than simple counting or computing, but 

 they are powers which necessarily appertain to the 

 discharge of every ministerial duty or this character. 

 Their existence is no obstacle to the control of such 

 officers by mandamus from a court having juris- 

 diction of the subject-matter. 



Under this act (of 1868) it became the duty of the 

 State Board to determine ministerially the result, 

 but necessarily, by the exercise of discretion snd judg- 

 ment, they must first determine that the papers be- 

 fore 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 judiciiil 

 function is necessarily exercised, for, if it be other- 

 wise, 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 de- 

 partment of the government are strictly forbidden 

 to do any act, 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 6, Article XIV.) author- 

 izing and requiring the Legislature to provide for 

 ascertaining the result from " the returns of elec- 

 tions." This is clearly an express authority for pro- 

 viding that " returns of elections " must be received, 

 considered, and passed upon by such officers or per- 

 sons 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 re- 

 turn does not snow 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. 



The action of the Board of Canvassers in 

 relation to Jnckson, Hamilton, Monroe, Mana- 

 tee, Hernando, Orange, Leon, and Clay Coun- 

 ties, was considered by the court, and the law 

 applied in each case. With reference to Jack- 

 son County it was said : 



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 in this county, and 

 in view of the express admission by the pleadings 



that such return was a genuine return of votes cast, 

 the only question raised here is whether, under t),i 

 statute, the canvassers can reject a return of \'.ten 

 cant 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-Jide return, is a question 

 of law not within the power of this board to deter- 

 mine. 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. 



The same principles applied in the case of 

 Hamilton County. A part of the allegation 

 with reference to Monroe County was of fraud 

 in the conduct of inspectors. This, the court 

 declared, was not ground on which the can- 

 vassers could reject a return which was genu- 

 ine and Ttonajide. 



What is fraud In such an inspector, it said , is a 

 question of law, so also is the question whether such 

 fraud by inspectors can vitiate an election a Ques- 

 tion of law. Both are judicial questions beyona the 

 powtr of the board to determine. 



With regard to the Manatee County case the 

 court said : 



A return of votes cast in a county at a general elec- 

 tion, of which notice is given throughout the State 

 by the proper executive authority, no notice of elec- 

 tion by local officers (county) having been given, is 

 not a return either irregular, false, or fraudulent, 

 within the meaning of the statute regulating and de- 

 fining 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 bevond the power and jurisdic- 

 tion of a ministerial officer under the law, constitu- 

 tional and statutory. A return of votes cast in a 

 county at such general election, duly signed by ac- 

 knowledged 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 ac- 

 cording to the general notice), is a return which the 

 State canvassers must count, as it is neither irregu- 

 lar, false, nor fraudulent, within the meaning of the 

 statute. Whether such vote is effective to vest ti e 

 office is a question judicial in its character, which 

 this court upon mandamus should no more deter- 

 mine than should the State canvassers. Such can- 

 vassers 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 notion, 

 nor should this court determine it when it is sought 

 to direct them to perform ministerial duties. 



In regard to the addition of votes in Clay 

 County which had been rejected by the coun- 

 ty canvassers, and the deduction of others on 

 the ground that they were cast by non-resi- 

 dents, the court said : 



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 vote* 

 as are duly returned by the County Board. Such 

 vote-* cannot be legallv included in the estimates of 

 the State Canvassing Board. 



The demurrer was sustained, and the per- 

 emptory writ awarded. 

 The Board of Canvassers met, in pursuance of 



