Ex Parte Ivey

• Decision Date: 02 December 1890
• Citation: 8 So. 427,26 Fla. 537
• Parties: Ex parte IVEY et al.
• Court: Florida Supreme Court

8 So. 427

26 Fla. 537

Ex parte IVEY et al.

Florida Supreme Court

December 2, 1890

Application for mandamus restraining orders.

Syllabus by the Court

SYLLABUS

1. The supreme court of Florida has no power to grant an injunction in the exercise of original jurisdiction.

2. The constitution has not devolved upon the supreme court the duty of instructing officers how they shall canvass election returns, before they have violated the law governing the canvassing of such returns; nor has the legislature attempted to impose such a duty upon the court.

3. Mandamus does not lie to compel the performance of an official duty before there has been an actual default of performance. Allegations that the officers do not intend to perform the duty, or will not do so, are insufficient.

4. Where the circuit court has concurrent original jurisdiction with the supreme court, subject to the appellate jurisdiction of the latter tribunal, the supreme court may, in the exercise of its discretion, remit litigants to the former court for the exercise of original jurisdiction, and will do so where the convenience of the parties to the proposed proceeding, and the interests of litigants to a crowded appellate docket, dictate such course.

COUNSEL

Loton M. Jones and J. N. Stripling, for petitioners.

The substance of the petition is that petitioners and J. R. Newlan and W. B. High were candidates in Suwannee county for members of the house of representatives, and that Ivey received 601 votes, Harrell 613, Newlan 574, and High 579, and that the returns from precinct No. 2, forwarded to the supervisor of registration and county judge, showed that Ivey received 90 and the said Harrell 102 votes at that precinct, and their competitors Newlan 34 and High 35 votes, but before the meeting of the county canvassers these returns had been purlothed, stolen or lost from the offices of the supervisor

of registration and county judge, so that the same are not now, and were not at the time of the county canvass, in the custody, possession, or control of the supervisor of registration or county judge, and that in lieu of the true returns a certain false, fraudulent, and forged paper purporting to be the returns had been substituted and placed in each of said offices, which paper represented the vote for Ivey as 60, and for Harrell as 72, for Newlan 64 and High 65 and was canvassed and included by the county canvassers in their enumeration of the votes cast for members of the house of representatives from that county, whereby the vote was made to appear, and was stated in the certificates of their convass forwarded by the county board to the governor and secretary of state, as follows: For Ivey 571 for Harrell 583, for Newlan 600, and for High 609. That petitioners are advised and believe that, without the intervention of this court, it will be the duty of the state board of canvassers to count and canvass these certificates, and certify that Newlan and High were elected, whereas petitioners allege, upon a canvass of the true vote cast in Suwannee county, the certificate ought to be in favor of petitioners.

The prayer of the petition is as follows:

(1) For an order that the board of state canvassers do not canvass the certificate of the result of the election for members of the house of representatives from Suwannee county until the further order of this court, or show cause, on a certain day to be fixed, why they should not do so.

(2) An order that the secretary of state do not issue certificate of election to Newlan or High, or any other persons, until the further order of this court, or show cause why he should not comply with such order.

(3) That the court may inquire into the premises, and ascertain and declare the true vote of district No. 2 at such election.

(4) That this court may inquire into the premises, and ascertain and declare the true vote cast at the election in the county of Suwannee for members of the house of representatives.

(5) That the officers who canvassed the alleged precinct returns, the true vote of said election district No. 2 for members of the house of representatives having first been ascertained, adjudged, and declared by this honorable court, may be required to meet at the office of the supervisor of registration of electors of said county at such time as the court may direct, and canvass the vote of the precinct in accordance with the ascertainment, declaration, and judgment of this court, and certify the same in duplicate to the secretary of state and governor, or show cause on a day to be fixed why they should not comply with the order.

(6) The true vote of the county having been certified by the board of county canvassers of Suwannee county in accordance with the determination and judgment of this court, that the board of state canvassers shall be required to...