FLORIDA. 



335 



On this certificate of the Board of State 

 Canvassers, the Governor issued the certificate 

 of election as member of Congress from the 

 Second District to Mr. Hull. 



The statement relative to the return from 

 precinct No. 4 in Madison County is as follows : 



The ballot-box containing the votes and returns 

 from precinct No. 4 was stolen on the evening of the 

 election, and no returns were received from that pre- 

 cinct. It seems that the box was locked and put in 

 charge of Mr. T. A. Jones, one of the inspectors, who 

 placed it in his buggy, and on his way home stopped 

 at Mr. Hineley's store, at Moseley Hall. He went 

 into the store and was absent not more than five 

 minutes, but when he returned the box was gone. 



In consequence of the decison of the Board 

 of Canvassers, an application was made by Mr. 

 Bisbee for a mandamus seeking to control 

 the Board of State Canvassers in the matter 

 of their canvass of votes cast at an election 

 for Representative of the Second District in 

 Congress. The alternative writ alleged that, in 

 the canvass of votes cast in the county of Mad- 

 ison, one of the counties composing the Con- 

 gressional District for Representative in Con- 

 gress, the State Board omitted and failed to 

 count the votes returned by the Board of Coun- 

 ty Canvassers for that county. It admitted the 

 fact also that said return of the County Board 

 did not embrace the votes actually cast at dis- 

 trict No. 4 in said county, the relator alleging 

 upon information and belief that at said district 

 186 votes were cast for him, and 129 votes 

 were cast for Noble A. Hull, who was, with 

 himself, a candidate for said position. The re- 

 lator averred also that the return from the 

 county of Madison embraced all the votes cast 

 for said office in the county as shown by the 

 returns on file in the offices of the County 

 Judge and Clerk, and that no return from the 

 Fourth District was before them. The demur- 

 rer of the Board admitted these facts. The 

 question involved, therefore, was whether under 

 the law the Board of State Canvassers should 

 count a county return, which, it is admitted, 

 does not embrace the actual vote cast at the elec- 

 tion in the county by 315 votes, an entire pre- 

 cinct in a county ; it being likewise admitted 

 that it does embrace all the votes of precincts 

 or districts which were returned to the Clerk 

 and County Judge. The majority of the Su- 

 preme Court concurred in an opinion delivered 

 by Chief- Justice Randall against the Board. 

 Justice Westcott dissented, and delivered an 

 adverse opinion. The Court says : 



We do not find anywhere in the opinion or judg- 

 ment of this Court, in the case of Drew, relator, 

 against the State Canvassers (16 Fla., 17), or in any 

 other case decided by this Court, any expression which 

 will warrant the exclusion by the State Board of a 

 return which is regular, genuine, and bonafide, mere- 

 ly because the Board are informed and satisfied that 

 votes cast at a precinct (of which no return was made 

 to the County Board) were not included in the re- 

 turn made by county canvassers to the State Board. 

 The power of this Board u is limited " (as is ex- 

 pressly stated in the opinion of the Court in that 

 case), "by the express words of the statute which 

 gives them being, to the signing of a certificate con- 



taining the whole number of votes given for each 

 person for each office, and therein declaring the re- 

 sult as shown by the returns." The judgment of 

 the Board may be invoked to lay aside a county re- 

 turn and omit to include it in the statement and de- 

 termination of the result of the election, when it 

 shall appear to them that the return is so " irregular, 

 false, or fraudulent " that it does not show the true 

 vote, but does represent votes not cast according to 

 the precinct returns made to them ; or, in other 

 words, that the return in the hands of the State 

 Board is not made up in good faith from sucli precinct 

 returns, but is a thing manufactured, an attempted 

 imposition upon the Board, or of such character that 

 it represents falsehood instead of the truth as to the 

 precinct returns of votes actually cast, and is, for such 

 reasons, not a lawful return of an election. 



In the case referred to, the Court says: '"'The 

 words ' true vote' (used in the statute) indicate the 

 vote actually cast, as distinct from the legal vote." 

 The Court was considering whether the power of the 

 Board to dissect returns and reject such votes as may 

 have been illegally cast was included in the language 

 of the statute, and it was decided that they had no 

 such power under the statute ? and that the power 

 given was confined to a determination as to the char- 

 acter of the return, whether it was regular, genuine, 

 lona fide, a true or false compilation of precinct re- 

 turns. This power was deemed incident to the char- 

 acter of the office of the canvassers as created and 

 defined by law, for the protection of the Board and 

 the people from the effect of unlawful attempts to 

 palm off upon them forged and "doctored" papers 

 or wholesale falsehoods. To maintain under our 

 statute that a county canvass based upon votes not 

 cast is a proper return to be counted, would be clear- 

 ly erroneous. 



Is this the character of the return from Madison ? 

 Does the return made by the county canvassers of 

 that county bear any of the characteristics that 

 place it among returns that the State Board may 

 exclude? Does it include any votes but those ac- 

 tually cast according to the precinct returns ? Is it 

 false as to those returns? 



It is not pretended that the county canvassers of 

 Madison County have violated the letter or the 

 spirit of the law, nor that the return made by them 

 is " irregular, false, or fraudulent," within the mean- 

 ing of the statute. 



The Court then proceeds to consider in de- 

 tail the action of the county canvassers, and 

 says that " the county canvassers of Madison 

 County have fully and honestly complied with 

 the law. They canvassed and certified all the 

 votes returned to the Judge and Clerk in due 

 form of law." The Court further says : 



It was urged in the argument that if there should 

 he in a given county a 'large number of precincts, 

 and it should happen that the returns of one poll 

 only should reach the county canvassers, and this 

 return only canvassed and returned to the State 

 Board, it would be absurd to treat this single poll as 

 the true vote of the county. This state of things 

 being made to appear, the State Board might well 

 consider that there had been improper conduct on 

 the part of the precinct inspectors or messengers, as 

 they would know that the entire vote of the^county 

 had not been delivered to the County Board. We 

 will not here instruct them as to their duty in such 

 an extreme case. We submit, however, that because 

 one or more precincts may be disfranchised tem- 

 porarily by rascality or accident, it does not follow 

 that the residue of the voters of the county should 

 be legally treated in the same manner. Whether 

 the returns not made would produce a different re- 

 sult of the election, could scarcely be determined 

 by a canvassing board, and parties interested would 

 doubtless seek a remedy. 



