State Ex Rel. Barrs v. Pritchard

• Decision Date: 15 June 1933
• Citation: 149 So. 58,111 Fla. 122
• Parties: STATE ex rel. BARRS v. PRITCHARD et al.
• Court: Florida Supreme Court

149 So. 58

111 Fla. 122

STATE ex rel. BARRS v. PRITCHARD et al.

Florida Supreme Court

June 15, 1933

On Rehearing June 16, 1933.

Amended Order on Denial of Rehearing June 17, 1933.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Mandamus proceeding by the State, on the relation of Albert E. Barrs against J. C. Pritchard and others. To review the judgment granting a peremptory writ, defendants bring error.

Reversed and remanded, with directions.

COUNSEL Newcomb Barrs, of Jacksonville, for relator.

Fred M Valz, Robert H. Anderson, J. Henry Blount, and Emmet Safay all of Jacksonville, for respondents.

OPINION

PER CURIAM.

This case in before us on a motion to vacate the supersedeas heretofore granted. In connection with that motion, all parties have agreed that the case be disposed of on its merits at this hearing, inasmuch as the present controversy will become moot after June 20, 1933, next, the date upon which the general election of the city of Jacksonville is required to be held according to the controlling statutes.

This case is one involving a recount of the ballots cast in certain precincts in the city of Jacksonville at a city primary election held therein on May 2, 1933. The return of that election showed that hereinafter stated totals of votes credited to each of six candidates running for nomination to the office of city commissioner. Of the six just mentioned, only those three receiving the greatest number of votes were entitled to be certified as the nominees for the offices to be filled.

Vote as Canvassed

P. M Ulsch 13,304 votes

Thos C. Imeson 10,119 votes

Ernest E. Anders 9,615 votes

Albert E. Barrs 9,599 votes

Ben F Trenary 9,150 votes

L. B. McCullough 7,352 votes

The command of the alternative writ of mandamus as granted was in substance as follows: That the respondent inspectors and clerks of election assemble, and publicly open the ballot boxes of the several and respective precincts, and publicly and accurately tally and count the votes appearing upon the ballots cast in said precinct in so far as they pertain to the office of city commission, and after so doing to make amended returns thereof to the city Democratic executive committee in due form of law so as to show the true number of votes cast in each of said precincts severally for the respective candidates for city commissioner, such count and tally to be done by each of said sets of inspectors severally in the presence of and under the supervision of the said city Democratic executive committee. To make the commanded recount effective, the custodian of the ballot boxes was ordered to deliver them to the inspectors and clerks, while the city Democratic executive committee was ordered to receive and recanvass the amended returns when so made as ordered by the court.

The circuit judge, after hearing of considerable evidence (none of which is exhibited to this court by a bill of exceptions), ordered a peremptory writ of mandamus to issue. But in so doing he completely departed from the command of the alternative writ, which alternative writ was not so framed as to require more than a numerical recheck and recount of the ballots. So one of the errors assigned is that the circuit judge erroneously included in his peremptory writ the following additional directions and commands not predicated upon, but in enlargement of, the alternative writ:

'Ballots on which the voter has indicated his choice and vote by the use of an 'X' mark are legal ballots and ballots whereon the voter has attempted to indicate his choice and vote by the use of a check or 'V' mark or any other mark than an 'X' mark are illegal and are not to be counted, but are to be separately returned.'

Any attempted enlargement of the relief contemplated by the command set forth in an alternative writ of mandamus, by embracing in the peremptory writ issued pursuant thereto any material requirement for the performance of official acts in addition to, and broader than, that contained in the command of the alternative writ, has several times been declared by this court to be a fundamental error. And such an error, being fundamental, is one for which this court will reverse a judgment ordering such an enlarged peremptory writ, whether excepted or objected to in the lower court or not. Such was our holding in the very recent case of City of Clearwater v. State ex rel. United Mut. Life Ins. Co., 147 So. 459, headnotes 5, 6, and 7. See, also, State ex rel. Hutchins v. Tucker (Fla.) 143 So. 754; State ex rel. Keefe v. St. Petersburg (Fla.) 144 So. 313.

The peremptory writ awarded in the present case falls squarely within the inhibitory effect of the rule of law just stated. For that reason the judgment appealed from must be reversed, and the cause remanded to the circuit court, with directions to vacate the peremptory writ as awarded, and enter in this cause an appropriate judgment not inconsistent with this opinion, either granting or denying a peremptory writ in accordance with the alternative writ, as, in the opinion of the circuit judge, the merits of the cause may require.

All votes included in the election returns sent in by inspectors of election are presumably votes computed on the basis of ballots properly marked in accordance with law, and, as such entitled to be counted as votes for the candidates designated. Every ballot cast in an election must be definitely accounted for by the clection officials. If ballots have been cast that, because of irregular or illegal marking thereof, have not been deemed by the inspectors entitled to be counted, and therefore have been discarded, a return to that effect disclosing the number of such discarded votes should be made, in order that every ballot cast, or attempted to be cast, shall be accounted for in the election returns. On the other hand, it is the duty of the election...