Drew v. State Canvassing Board-Argument of Counsel. By whom is the right to this certificate adjudged against George F. Drew and in favor of M. L. Stearns? Not by the judiciary, but by a branch of the administrative department of the government, to wit: three members of Governor Stearns' Cabinet. But it may be answered that it matters not as regards the relator whether he is deprived of the certificate by a ministerial determination or judicial decision on the part of the Board. Far otherwise; for if the adverse determination is ministerial, it may be controlled, if judicial not. Besides the opportunities for, and dangers of, and temptations to a lawless, wilful, or corrupt determination, are far greater if the Board may go outside of the returns and determine according to their own "sweet wills," and upon such testimony as they may choose to admit, the rights of adverse candidates to office. And so, as the powers of the Board are enlarged and the danger from its exercise is increased, is all redress, and right of revision of their action, taken away. They are inferior judges, with jurisdiction nevertheless commensurate with the State, deciding issues of the most tremendous import, and yet judges from whose judgments there lies no writ of error or appeal! Other refuge failing, we are told to betake ourselves to Sec. 6 of Art. IV. of the Constitution: "The Legislature at its first session after the ratification of this Constitution shall by law provide for the registration;" but surely we need go no further. The grant of the transcendent power claimed to have been given to the Board by the Legislature was not by an act of the first session, but of a session long subsequent to the first. The objection taken that the Board having met, and, as they allege, having completed the canvass, are functus officio, and not subject to the pending process, was one of Drew v. State Canvassing Board-Argument of Counsel. the questions submitted to the court in the Bloxham case (13 Fla.) and ruled upon. See page 72. Numerous other decisions to the same effect might be cited, but this court having once expressly determined it, further citations might seem impertinent. So also as to the plea that the relator has another remedy by quo warranto. In case of Ellis vs. County Commissioners, 2 Gray, 370, the court even granted the mandamus pending a quo warranto. And why not? Surely it is no new thing for a party to seek and procure by one suit the evidence necessary to maintain his cause in another. The attention of the court is especially called to the late South Carolina cases decided within the last few weeks. The language of the South Carolina statute upon which the Supreme Court of that State in the late case of State, ex rel. Sims, et al., vs. Board of State Canvassers of Elections, granted a mandamus to the Board of Canvassers, is as follows: "Upon such statements (those of the County Canvassers) they shall proceed to determine and declare what persons have been by the greatest number of votes duly elected to such offices. They shall have power, and it is made their duty, to decide all cases upon protest and contest that may arise, when the power to do so does not by the Constitution reside in some other body." A decision could hardly be more directly in point than that of the South Carolina Supreme Court in this case. In illustration of various points embraced in this discussion the following citations are made: 27 Ill., 242; 29 Ill., 419; 2 Ind., 423; 9 Ala., 338; 2 Bray, 370; 7 Bush, 453; 10 Bush; 17 Ill., 167; 36 Wis., 498. In conclusion, I quote the language of the Supreme Court of Wisconsin in the case last cited, only varied a little to adapt it to the case now under consideration: "A Board of Canvassers of Elections, who illegally and Drew v. State Canvassing Board-Argument of Counsel. wantonly disfranchise electors by rejecting their votes, commits a most serious offence, an offence which strikes at the very foundation of our system of government, and which cannot be too seriously censured. He who, by fraud or by wilful disregard of his sworn duty, defeats the will of the people as expressed by their votes, commits a political crime next to treason, and nearly akin to it, and this court will never fail, on any proper occasion, to characterize such an offence in befitting terms." Whether or not the respondents have been guilty of the great crime here named is not for me, in this forum, and in these proceedings, to say. But I do say, and the pleadings authorize me to say it, that the will of the people of Florida, as expressed by their votes for Governor of the State, has been defeated by this State Canvassing Board, as far as their action could defeat it. Brief of Mr. J. P. C. Emmons for Respondents: The State Board in canvassing went behind the face of the returns. Relator claims there is no exercise of judgment or discretion to be exercised by said Board. Statute of 1868 (amendment of 1872) requires of the Board an examination as to the regularity, false or fraudu lent character of the returns. This necessarily contemplates inquiry; evidence of some kind must be received and passed upon. If any evidence is to be received, if any judgment or discretion is to be exercised in relation to it, then the evidence would be such as would ordinarily be received in any judicial proceeding, and weighed and applied in like manner. If this be so, then it is contended by the respondents that mandamus will not lie to control or direct its exercise. If the Board has acted in relation to all the duties im Drew v. State Canvassing Board-Argument of Counsel. posed by the statute, this Court will not interfere or review that action in this proceeding. To sustain this view we cite: Towle vs. State, 3 Florida, 202; People vs. Governor, 29 Mich., 320; People vs. Wayne Co., I Mich., 359; Arberry vs. Beaver, 6 Texas, 457; Kendall vs. U. S., 12 Peters, 610; Decatur vs. Paulding, 14 Pet., 509; State vs. Hetzel, 8 Nevada, 309; Clark vs. McKenzie, 7 Bush, 527; 36 Wis., 505. Court say the statute pointed out the duty of the Board in unmistakable terms. If the Board did not send for amended returns, the Board were bound by the returns by statute. If respondents are correct in construing the statute, and the Board has completed its labors under it, this Court will not call upon it to re-convene; as a Board it is functus officio. The Bloxham case, 13 Fla., 55, is not one in conflict with this view. There it was conceded the Board had not canvassed or acted upon all the returns. The case in 43 Missouri, 256, State vs. Rodman, is one like the Bloxham case; all the returns were not acted upon. The statute regulated how the vote should be counted. The cases cited by petitioners are all in favor of our proposition. Wherever the Courts have granted the writ, it has been done where a statute of the State controlled. If Court should grant the peremptory writ as asked, it will call for the counting of the votes cast in Manatee, Hamilton, Jackson and Monroe Counties, as it appears from the face of the returns, the Board could not reject either, even though they should appear or were shown to be forged. Under such a statute the Court will not direct the Board how to do its duty. In Hardenburgh et al. vs. Kidd et al., 10 Cal., 402, the Legislature conferred upon the Court of Sessions a taxing Drew v. State Canvassing Board-Argument of Counsel. power. There was nothing in the Constitution of California which even impliedly conferred upon the judiciary a taxing power. The subject is not even referred to in the judiciary provisions of the Constitution. In the case, 5 Mich., 409, Chandler vs. Nash, where the act gave to notaries public judicial powers, and authorized such proceedings as were in the nature of concurrent jurisdiction with the established Courts, as recognized by the Constitution, the Court held there was no implied power to vest such officers with any power but purely ministerial, saying notaries were in no way appointed under the Constitution, but created by the statute. In our Constitution, Art. 14, Secs. 2, 3 and 7, are provisions on the subject, and the Leg'slature has, under these provisions, provided for an inquiry into any abuse of right as contemplated in these sections. There is nothing in Cooley, as cited by relator, p. 421, and the authorities there cited, that is opposed to the idea that the statutes shall control. (See p. 325 of 29 Mich., opinion of Cooley as to some mingling of powers.) Sec. 3 of Art. 14 says that a subject of a foreign country, when he offers to vote under this Constitution, shall present certain evidence, otherwise he shall not be permitted to vote. The Legislature has fixed, under the Constitution, the mode, time and place of conducting and supervising elections, and returns, and for a final adjustment of all previous action. In Pillsbury et al. vs. Aldermen of Charleston, 1 Richardson's New Series, 1868 and 1870, p. 30, the petitioners alleged that relator received the majority of the legal votes. In case at bar it does not. But the reliance of petitioner from this case is that the Board went beyond its power; that it must be confined to the express delegation, and not act upon implied power. On page 41, Judge Willard says: |