State ex rel. Bisbee v. Board of State Canvassers

• Decision Date: 02 January 1879
• Parties: THE STATE OF FLORIDA EX REL. H. BISBEE, JR., v. THE BOARD OF STATE CANVASSERS
• Court: Florida Supreme Court

17 Fla. 29

THE STATE OF FLORIDA EX REL. H. BISBEE, JR., v. THE BOARD OF STATE CANVASSERS

Supreme Court of Florida

January 2, 1879

[Syllabus Material]

Rehearing Granted 17 Fla. 29 at 58.

Original Opinion of January 2, A. D. 1879, Reported at: 17 Fla. 29.

The alternative writ sets up the facts that the relator was a citizen of the State of Florida, and one of the candidates for Representative in Congress at an election held in the Second Congressional District, on the 5th day of November 1878, and received a majority of the votes actually cast and duly returned to the Board of State Canvassers.

That on the tenth day of December, 1878, the said respondents, as a Board of State Canvassers, organized, and proceeded to canvass the returns of said election, and that they did improperly reject a bona fide return of votes cast in Madison county, and refused to include in their said canvass the entire return of votes from said county, on the ground that there was no return made from one precinct in said county to the county board of votes cast in such precinct, and such votes were not included in the return made by the county canvassers to the State Board; and that by so rejecting the county returns of Madison county, the relator was deprived of a certificate of election to which he would have been entitled if such returns had not been so rejected. He therefore demands that the State Board be required to convene, and canvass, and count all the bona fide returns of said election, including those from Madison, and declare and certify the result, and perform such other duties as are required by law in the premises.

The respondents filed their demurrer to the alternative writ upon the following grounds:

1. It does not show that the relator is twenty-five years of age.

2. There was not, nor is there any statute or law of the State of Florida, providing for the election of a Representative in Congress from the Second Congressional District of said State.

3. The said writ shows that the said return from Madison county does not show or represent the true vote cast in said county at said election.

Demurrer overruled.

H. Bisbee, Jr., in pro. per.

J. F. McClellan and D. S. Walker, Sr., for respondents.

THE CHIEF JUSTICE delivered the opinion of the court. MR. JUSTICE WESTCOTT, dissenting.

OPINION

THE CHIEF JUSTICE

Upon the first ground of demurrer, that the relator is not shown by the alternative writ to be twenty-five years of age, we remark that the title to the office not being by any possibility liable to be controverted in a proceeding of this character, any peculiar qualification prescribed by the Constitution of the United States for members of Congress can be tried only by the Congress. This proceeding seeks only to procure such certificate as the candidate voted for may be entitled to under the laws of this State, which certificate is a property which the person obtaining the most votes is authorized by law to demand. Upon this inquiry the right to take and hold the office is not in question, and a slight examination of the rules laid down in the books does not show that such a question has ever been entertained by the courts. Whether the relator possesses all the qualifications necessary to entitle him to a seat in Congress, is a matter that can only be inquired into by the House in which he may present a certificate of election.

The relator shows in the pleadings that he is a citizen of this State, and was voted for at the last general election for Representative in Congress from the Second District, and that he received a majority of votes actually cast and duly returned, and that such votes have not been counted in full, so that a certificate of election is withheld from him. If all this is true, no person other than himself is entitled to the certificate of election, and whether the one or the other is entitled to the seat, cannot be tried before a State court. The question raised, therefore, by the first ground of demurrer is not material in this court. Were this a proceeding under a writ of quo warranto to test the right to a State office, the question of eligibility would be material. The first ground of demurrer is not sustained. The second ground of demurrer was abandoned upon the hearing.

We proceed then to consider the third ground of demurrer, involving the only material question before us.

We do not find anywhere in the opinion or judgment 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 bona fide, merely 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 return made by county canvassers to the State board. The power of this board "is limited," (as is expressly 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 containing the whole number of votes given for each person for each office, and therein declaring the result as shown by the returns." The judgment of the board may be invoked to lay aside a county return and omit to include it in the statement and determination 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 such 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 reason, 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 character of the return, whether it was regular, genuine, bona fide, a true or false compilation of precinct returns. This power was deemed incident to the character 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 as a proper return to be counted, would be clearly 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 actually 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 spirit of the law, nor that the return made by them is "irregular, false or fraudulent" within the meaning of the statute.

The ninth section of chapter 3021 (Laws of 1877,) amending the twenty-fourth section of the act of 1868, provides that "on the sixth day after any election, or sooner if the returns shall have been received, it shall be the duty of the County Judge and Clerk of the Circuit Court to meet at the office of said Clerk, and to take to their assistance a Justice of the Peace of the county, * * * and they shall publicly proceed to canvass the votes given for the several officers and persons as shown by the returns on file in the office of such Judge and Clerk respectively. Such canvass shall be made solely and entirely from the returns of the precinct inspectors in each election district as filed by them with the County Judge and Clerk of the Circuit Court respectively, and in no case shall the Board of County Canvassers change or vary in any manner the number of votes cast for the candidates respectively at any of the polling places or precincts in the county, as shown by the returns of the inspectors of such polling places or precincts. They shall compile the result of the election as shown by said inspectors' returns, and shall then make and sign duplicate certificates, containing in words and figures written at full length, the whole number of votes given for each office, the names of persons for whom such votes were given for such office, and the number of votes given to each person for such office. Such certificates shall be recorded by the clerk in a book to be kept by him for that purpose, and one of such duplicates shall be immediately transmitted by mail to the Secretary of State and the other to the Governor of the State."

The fourth section of chapter 1868 (Laws of 1872,) requires the State Board of Canvassers to "proceed to canvass the returns of said election, and determine and declare who shall have been elected to any such office, or as such member, as shown by such returns," unless the returns are shown to their satisfaction to be vicious, as before stated.

Now, 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 statute required them to perform their duty within a certain time, and they...