State ex rel. Drew v. McLin

• Citation: 16 Fla. 17
• Court: Florida Supreme Court
• Decision Date: 12 December 1876
• Parties: THE STATE OF FLORIDA, EX REL. GEORGE F. DREW, v. SAMUEL B. McLIN, SECRETARY OF STATE, CLAYTON A. COWGILL, COMPTROLLER, AND WILLIAM ARCHER COCKE, ATTORNEY-GENERAL, CONSTITUTING THE BOARD OF STATE CANVASSERS

16 Fla. 17

THE STATE OF FLORIDA, EX REL. GEORGE F. DREW, v. SAMUEL B. McLIN, SECRETARY OF STATE, CLAYTON A. COWGILL, COMPTROLLER, AND WILLIAM ARCHER COCKE, ATTORNEY-GENERAL, CONSTITUTING THE BOARD OF STATE CANVASSERS

Supreme Court of Florida

December 12, 1876

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Statement of the Case.

The relator, on the 13th day of December, 1876, filed a petition praying that a writ of mandamus should issue against S. B. McLin, Secretary of State, C. A. Cowgill, Comptroller, and W. A. Cocke, Attorney-General, composing the Board of State Canvassers, and entered a motion for an order that an alternative writ of mandamus issue in accordance with the prayer of the petition, and an order was made by the Court directing that an alternative writ issue accordingly, returnable December 14th, 1876, at eleven o'clock, a. m., and thereupon the following writ was issued:

THE STATE OF FLORIDA TO SAMUEL B. McLIN, Secretary of State, WILLIAM A. COCKE, Attorney-General, and CLAYTON A. COWGILL, Comptroller, members of the Board of Canvassers of Florida, and to every of them--GREETING:

WHEREAS It has been suggested to us by the petition of George F. Drew that a general election was held on the 7th day of November, A. D. 1876, in the several counties of this State, for the election of Governor of the State, and Lieutenant-Governor thereof, and for members of the Assembly for all the counties of the State and for Senators from the several odd numbered Senatorial districts of the State, said election being held in pursuance of law and of proclamation, duly made by the Secretary of State; that at said election, the petitioner, George F. Drew, who was and is eligible and qualified to hold the office of Governor of said State, was a candidate to be voted for by the voters of said State to fill said office, and that besides himself, one Marcellus L. Stearns was a candidate for said office, and that other than himself and said Stearns there was no candidate or candidates voted for to fill the same; that by the returns of the said election received at the office of the Secretary of State, and now on file in said office, the whole number of votes cast at said election for said George F. Drew were twenty-four thousand six hundred and thirteen (24,613) votes, and the whole number of votes cast for said Stearns were twenty-four thousand one hundred and sixteen (24,116) votes; that in pursuance of law, Samuel B. McLin, Secretary of State, William Archer Cocke, Attorney-General, and C. A. Cowgill, Comptroller, constituting the Board of State Canvassers of Elections, assembled, convened and organized as such Board, at the office of the Secretary of State, on the 27th day of November, A. D. 1876, to canvass the votes of said State given at the said election for Electors of President and Vice-President of the United States, and for Governor and Lieutenant-Governor of Florida, and for members of the Congress of the United States, and members of the Legislature of Florida; that on their said organization of said Board they proceeded to canvass and count the vote cast at the said election for Electors of President and Vice-President; that in the making of such canvass and count of the electoral vote, as the said George F. Drew is informed and believes and avers, the said Board undertook to exercise, and did exercise and usurp judicial functions and powers in this: that they went behind the face of the election returns from divers counties of the State, and did, upon certain affidavits, or pretended affidavits, and upon other pretended evidence, discard the vote of the county of Manatee, and did refuse to canvass and count and enumerate the votes of the counties of Jackson, Hamilton and Monroe, as shown by the returns of and from said counties of said election, and that they determined to pursue, and have pursued the same course in the canvass and count which they pretend to have made of the votes cast at said election for the office of Governor and Lieutenant-Governor and members of the Legislature, and have refused to count the entire vote of the county of Manatee as shown by the returns from said county to have been cast in said county for said officers; and have refused to canvass and count the votes of the counties of Jackson, Hamilton and Monroe, as shown by the returns from said counties to have been cast at said election for said officers; and that said Board, as said George F. Drew is advised, have and can exercise no judicial functions or powers under the Constitution of this State, or at most only quasi judicial powers, in the discharge of their duties as a Board of State Canvassers of Elections, and that it is and was their duty to examine the papers received by the Secretary of State, and purporting to be election returns of said election, and after ascertaining that they appear to be genuine, to declare the result of said election as shown by said returns; that the said Board of State Canvassers, or a majority of them, pretend that they have already concluded, completed and performed, the canvass of the said votes cast at the said election for Govenor and Lieutenant-Governor and members of the Legislature, which the said George F. Drew denies, and avers that the contrary of is true: that they have not, as the law requires, canvassed and counted and enumerated the votes cast at said election in the counties of Jackson, Manatee, Hamilton and Monroe, that their said pretended canvass of the returns from said counties, if any such has been made, which he does not admit, is a nullity, as is their said pretended canvass of the returns of the votes of the several counties of the State cast at said election for said officers; that by reason of the failure and refusal of the said Board to canvass and count and enumerate all the votes of all the counties of the State cast at said election for the said office of Governor, on file in the office of said Secretary of State, and upon the completion of the said canvass and count and enumeration, to do further, as required of them by law in such case made and provided, the said Drew is prevented from receiving the certificate to which he is entitled certifying that he has been elected to said office; that by the failure of said Board to canvass and count and enumerate the votes of the said counties of Jackson, Hamilton, Manatee and Monroe, as shown by the returns of said election on file in said office of the Secretary of State, they have made it to appear that said Stearns has been elected to said office of Governor; whereas, if they had canvassed and counted and enumerated the said returns of the votes cast in said counties, together with like returns from the other counties of the State, it would manifestly have appeared, and would manifestly appear, that the said Drew was and has been elected to said office; that returns have been received of the said election at the office of the Secretary of State from the several counties of the State wherein elections have been and were held on said 7th day of November for the election of Governor and Lieutenant-Governor and members of the Legislature, and that it is the duty of the said Secretary of State, and the said Attorney-General, and the said Comptroller, to meet at the office of the Secretary of State, and proceed to canvass the returns of the said election, and determine and declare who has been elected to the said office of Governor of said State as shown by said returns; that the said State Canvassing Board, in canvassing the return from the County of Jackson, went behind the return of the County Canvassing Board of said County and threw out the Campbellton precinct vote where the said George F. Drew received two hundred and fourteen majority of the votes cast at said precinct, and they threw out the whole vote of Friendship Church precinct in said county where the said Drew received one hundred and one majority of the whole vote cast at said precinct; that the said Board went behind the return from the county of Monroe and threw out the entire vote of one precinct in said county, to-wit: precinct known as number three (3), at which said Drew received a majority of three hundred and forty-two votes (342) of the entire vote cast there; said Board refused to canvass and count the return from the county of Manatee, in which county, as shown by the said returns, the said George F. Drew received a majority of two hundred and thirty-six (236) votes of the entire vote cast in said county; that said Board went behind the return from Hamilton county and threw out the vote of a precinct in said county that gave the said George F. Drew a majority of one hundred and thirty-eight (138) votes of the whole vote cast there; that the said Board, in throwing out the entire vote cast at said two precincts in Jackson county, and at said one precinct in Monroe county, and at said one precinct in Hamilton county, claimed the right to act, and did act upon ex-parte affidavits to impeach the returns from said counties; that said Drew alleges that said Board, in making their said pretended canvass of the returns from the said counties of Jackson, Hamilton, Monroe and Manatee, exceeded their powers, and that they should have confined their canvass of said returns to what was shown or appeared on the face of said returns, the...