FLORIDA. 



337 



"solely and entirely " from the returns of the pre- 

 cinct inspectors in each election district, and " in no 

 case" shall they change or vary "in any manner" 

 the number of votes cast, as shown by the returns 

 of the inspectors of such precinct. If it is a return 

 from a precinct, made by the inspectors of such 

 precinct, then, no matter how false or fraudulent it 

 may be as to the vote cast, and independent of the 

 question whether it contained more or less than the 

 votes cast, it must be canvassed and counted by the 

 County Board. Not only is this true, but in addi- 

 tion to all this there may be a consideration for the 

 act, and yet the return must be counted. This is 

 the effect of the decision of this Court in the case of 

 the State ex rsl. H. Bisbee, Jr., vs. the Board of Coun- 

 ty Canvassers of Alachua County, lately decided by 

 this Court. This being so, then, if the County Board 

 strictly performs its duty, and restricts itself to pla- 

 cing upon the face of a return that only which the 

 law authorizes it to place there, a return made to the 

 Secretary of State can never, and should never, show 

 upon its face either falsehood or fraud; for to place 

 any tli ing of that character upon its face would not 

 only be an irregularity, but a clear, plain violation 

 of the law, which defines their duties in this very 

 particular ; and the act of the Legislature, which 

 makes it the duty of the State Board to have for the 

 basis of its certificate returns not shown or not ap- 

 pearing to be false or fraudulent, becomes nothing, 

 a mere vox et preterea nihil, in all cases where another 

 board of canvassers have complied with the law de- 

 fining their duties; this, too, notwithstanding the 

 returns, when considered with reference to the vote 

 actually cast at the election, maybe shown otherwise 

 than by their face to be both a falsehood and a fraud. 

 Besides, any writing made upon the face of a return 

 by the County Board, outside and in violation of 

 their power and duty under the law, is entitled to no 

 more consideration than such an act done by an in- 

 dividual. Being beyond official authority, it can not 

 be treated as an official action. The adoption of this 

 view brings us necessarily to the conclusion that the 

 Legislature authorizes the State Board to act alone 

 upon returns not shown to be false, and, at the same 

 time, limits them in their investigation of the fact 

 of falsehood to an official paper, which, if legal and 

 in proper form, can never establish the fact of false- 

 hood. The signification of the words "shown or 

 shall appear," in this section, is to be determined, 

 as in every other case of like investigation, by the 

 nature of the thing which is to be shown or to ap- 

 pear. That which is to be shown here is the irregu- 

 larity, the falsehood, or fraudulent character of a re- 

 turn, purporting upon its face to contain the votes 

 cast at a general election held in a county ; and as 

 a county return may be legal and formal and regular 

 in its character, and yet false as to the votes cast or 

 given in a county (the matter of inquiry), the nature 

 of the thing to be shown or to appear necessarily ex- 

 cludes and prevents such interpretation or construc- 

 tion of the statute as limits the inquiry to what is 

 shown or appears by the return. The reasonable, 

 the fair, the simple interpretation of the language of 

 this statute is entirely in conflict with this view. It 

 is a fundamental and elementary rule of construction, 

 prevailing in all courts in England and America, that 

 whan this is the case the duty of a court is to declare 

 the plain intent, the clear meaning of the statute, 

 unless it is shown that the literal and simple con- 

 struction of the language employed is clearly not 

 within the intention of the Legislature, and that 

 something else was. 



Hsre, as I have demonstrated, the view that the 

 State Board is restricted to the county return in de- 

 termining its falsehood is directly opposed to the 

 intention of the Legislature, because the fact of 

 falsehoood can not legally and properly appear 

 therefrom in any case, and the Legislature contem- 

 plated th>it it might be shown or appear, if it ex- 

 isted. To my mind, therefore, this construction of 



VOL. xvui. 22 A 



the statute is clearly wrong. It is useless, in this 

 connection, for those who advocate this rule to cite 

 decisions of other State courts, to the effect that un- 

 der their statutes a State Board is restricted in its 

 inquiries to the genuineness of the return before 

 them. The statutes they are construing are essen- 

 tially different from ours. They authorize no in- 

 quiry as to the falsity or truth of a return when it 

 speaks as to the votes cast. Our statute does au- 

 thorize this specific inquiry, and to adopt the deci- 

 sions referred to would be a usurpation of legisla- 

 tive functions by a judicial tribunal, for the act 

 would be simply the repeal of a statute under forms 

 ot'judicial proceedings. 



This view, that the State Board could determine 

 the falsity to a return by inquiry aliuude its face, is 

 sustained by what is said in the case of Drew vs. 

 State Canvassing Board (16 Fla., 45). This Court 

 there said : " The clear efiect of this clause " (mean- 

 ing the clause regulating the canvass of returns by 

 the State Board) "is that a return of the character 

 named" (meaning thereby the irregular, false, or 

 fraudulent character mentioned in the statute) 

 " 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 de- 

 hors their face." The Court in that case also said, 

 when interpreting section 5 of Article XIV. of the 

 Constitution, that " the necessary conclusion is that 

 said 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." 



This question as to inquiry beyond the face of the 

 returns was involved in the determination of the de- 

 murrer of the relator to the answer of the respon~ 

 dents in that ca^e. This answer alleged as to the 

 return from one of the counties that it did not " in- 

 clude the vote cast in said county as it appeared on 

 the face of the return, upon the ground that it ap- 

 peared 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 in- 

 spectors and no designation of voting-places, and no 

 notice of election, that said Board could not ascer- 

 tain the true vote" (16 Fla., 31). Allegations as 

 to the reception of evidence offered by both sides, 

 and inquiry beyond the face of the return, are also 

 found in other portions of the answer to which this 

 demurrer was interposed (16 Fla., 27). The alter- 

 native writ of the relator himself stated that the 

 Board had received " ex part e affidavits to impeach 

 the returns," that they had " exceeded their pow- 

 ers," and that "they should have confined their 

 canvass of said returns to what was shown or ap- 

 peared on the face of said returns " (16 Fla., 22). 

 A demurrer to such an answer, preceded by such an 

 alternative writ and sustained by briefs of counsel dis- 

 cussing this very point, certainly presented it for 

 the consideration of the Court ; and an announce- 

 ment by the Court that it did not think the plead- 

 ings involved the point could have^been well met by 

 an intelligent bar with a smile, indicative of an emo- 

 tion much less complimentary in its character than 

 an expression of surprise. 



My conclusion, therefore, as to this point, is that 

 the State Board was not obliged to accept the face of 

 the return, and that the matter of its falsity could be 

 ascertained deliors its face; that such is the plain 

 meaning of the statute as well as of the decision in 

 the case reported in 16 Fla. 



Having thus shown that the State Board has the 

 authority to look beyond the face of the return to 

 ascertain whether it states the truth, and the alter- 

 native writ in this case setting up and admitting the 

 fact as known and ascertained by the Board that 



