State v. Haskell

• Decision Date: 08 August 1916
• Citation: 72 Fla. 244,72 So. 651
• Parties: STATE ex rel. KNOTT v. HASKELL et al.
• Court: Florida Supreme Court

72 So. 651

72 Fla. 244

STATE ex rel. KNOTT v. HASKELL et al.

Florida Supreme Court

August 8, 1916

On Hearing of Return to Alternative Writ

Original mandamus proceeding by the State of Florida, on the relation of W. V. Knott, against E. E. Haskell and others. Peremptory writ issued.

Syllabus by the Court

SYLLABUS

The rights of a candidate which arise under and are created by the primary election laws of the state of Florida are such that, when violated, the courts of this state may be resorted to for their enforcement, and the writ of mandamus may be used to compel the performance of the duties which are imposed by law upon the officers designated to accurately count the ballots and to canvass the returns of a primary election; such duties being ministerial in their nature involving no discretion.

For the purpose of requiring election officers to correctly and accurately count and make due return of the votes as cast mandamus, and not quo warranto, is the remedy; the statute making no special provision for enforcing these ministerial duties.

The writ of mandamus is granted by the courts to enforce the performance of a ministerial duty imposed by law where such duty has not been performed as the law requires.

The writ of mandamus issues only when the law affords no other adequate remedy; and when the writ is applicable it should be framed to meet the exigencies of the case.

When a relator is entitled to a writ of mandamus, he should have an effective writ.

Where several distinct ministerial duties are to be performed by different persons or boards as a means to an end, so as to preserve the integrity and unity of the performance as an entire duty, all such persons may be joined in one writ of mandamus when no provisions or fundamental principles of law are thereby violated.

The inspectors and clerks of the several election districts of a county and the members of the county canvassing board may be made parties defendant in a writ of mandamus designed to required an accurate count and return of the votes cast at a primary election held under the statute, and also to require the returns made by the election district officers to be duly canvassed and return thereof duly made to the state canvassing board as the law provides.

The ministerial duty imposed by law upon precinct election officers to make a correct count and return of the votes as cast in a primary election held under the statute is a continuing one; and mistakes made by such officers in counting and returning the votes as cast may be corrected in mandamus proceedings duly taken in proper cases.

The provision of section 45, c. 6469, Acts 1913 (Comp. Laws 1914 s 277vv), as amended by section 7, c. 6874, Acts 1915, that the poll lists, oaths of inspectors and clerks, with the ballot boxes, ballots, etc., used in conducting a primary election, shall be transmitted, sealed up by the inspectors to the supervisor of registration to be filed in his office and carefully preserved by him until after the next ensuing election, contemplates the safe-keeping of the ballots, etc for such use as the law may direct.

The use in mandamus proceedings of primary election ballots, etc., required to be carefully preserved until after the next ensuing general election, is recognized by the provision of section 55 of the primary election law (Acts 1913, c. 6469 [Comp. Laws 1914, s 277yy]), as amended in 1915, relative to 'proper parties defendant in all matters affecting the accuracy of the election returns.'

Where ballot boxes, ballots, etc., used in a primary election are carefully preserved as required by the statute, the inspectors and clerk of an election district cannot avoid obedience to a judicial writ requiring them to accurately count and return the ballots as cast, when such writ gives the inspectors and clerk access to the ballots, etc., that have been properly kept as required by law, through the legal custodian, who is a defendant in the writ.

The command of the alternative writ that the county canvassing board shall canvass precinct returns as correctly made does not violate the provision of section 46 of the primary election law (Comp. Laws 1914, s 277vvv), confining the county canvassing board to a canvass merely of 'the returns and certificates of the inspectors,' since such statutory provision contemplates the making of correct and accurate 'returns and certificates' by the inspectors.

The power which the court exercises by the writ of mandamus to compel a public officer to correctly perform the ministerial duties pertaining to his office and which by law he is required to perform is independent of the statute; it rests in the sovereign power of the state, and is confided to the judicial branch of the government.

Where an election law contains no provision evidencing a legislative purpose to make the returns of inspectors the final determination as to the votes actually cast at an election for any candidate or proposition before the electors in such election, the court will in a proper case by writ of mandamus compel such election officers to make their returns and certificates to speak the truth if by any possibility it can be accomplished, thus requiring such officers to perform the duty required of them by law, viz., to make correct returns of the votes actually cast.

Chapter 6469, Laws of Florida 1913, entitled 'An act to provide for and regulate primary elections,' as amended by chapter 6874, Laws of Florida 1915, provides for judicial proceedings involving 'matters affecting the accuracy of the election returns.' This provision is inconsistent with the idea that, as a matter of public policy, the speedy declaration of the result of a primary election is of greater importance to the public than a correct count of the votes actually cast and a declaration of the correct result.

Prior to the adoption by the Legislature in 1915 of the amendment to chapter 6469, Laws of Florida 1913, this court had declared the policy of this state to be that the rights of a candidate arising under the primary election laws would be enforced by the courts. The amendment providing for proceedings involving 'matters affecting the accuracy of the election returns' was in recognition of such policy, and should be construed in aid of such legislative recognition and purpose.

Where a statute recognizes the power of a court to compel by appropriate writs the performance of ministerial duties by primary election officers to secure the rights of candidates arising under such law, the failure of the statute to expressly declare the mode of procedure will not defeat its purpose.

A primary election law whose evident purpose was to secure a fair primary election and a correct and honest count of the votes cast at such election, and which makes provision for the preservation of the ballots cast and for proceedings involving matters affecting the accuracy of the election returns, should receive from the courts such construction of all its provisions that the purpose of the act may be carried into effect and the rights of all candidates arising thereunder protected, and not such a construction as would defeat that purpose.

This writ merely commands the accurate returns that the law requires of the respondents as ministerial officers.

An accurate count, return, and canvass may be required by mandamus; and the effect thereof in other proceedings is not determined on this writ.

The provision of the primary election law as to second choice votes are not void for uncertainty; and as they relate only to nominations of party candidates, and not to the election of officers, such provisions do not conflict with organic law.

Questions of eligibility to hold office are not determined in this mandamus proceeding, and the suggestion that the position of nominee as a party candidate for office is such an office as is referred to in the Constitution, forbidding a person to hold or perform the functions of more than one office, is manifestly without merit.

The statutory requirement that a candidate shall make oath 'that he is qualified' her reference to qualifications applicable when elected and the term of the office begins.

Where a writ of mandamus makes it practicable for ministerial officers to perform a legal duty, such performance may be enforced.

On Hearing of Return to Alternative Writ.

A return to an alternative writ of mandamus should, for the purpose of making an issue, set up a positive denial of material facts as stated, or should state other facts sufficient to defeat relator's right.

The statement of a return to an alternative writ of mandamus should be positive, and not on information and belief.

If the answer to an alternative writ of mandamus is wholly insufficient as a pleading, a demurrer will lie.

The sufficiency of the return to an alternative writ of mandamus may be determined on a motion for a peremptory writ.

A denial of matters alleged in an alternative writ of mandamus by way of inducement does not present a material issue.

Where a portion of an answer to an alternative writ of mandamus is not responsive, but is wholly irrelevant to the allegations of the writ, such portion may be stricken on proper motion.

In so far as the general denials of an answer are qualified or explained by the positive averments as to 'the truth and fact' of the matter in issue, the latter averments control, particularly where the denials are of negative allegations.

To an alternative writ of mandamus commanding the inspectors and clerk of a primary election at a certain precinct to properly and correctly tally and count and make a correct return of all the votes cast in the precinct at a primary election for the several candidates for...