Ex Parte-Robert A. Ivey and Benjamin D. Harrell, 26 Fla. 537

Raney, C. J. The relief prayed against the Board of State Canvassers is preventive. It is not alleged that they have violated any duty imposed upon them by law; on the contrary, petitioners are advised and believe it will be the duty of the board to canvass the county returns unless we interfere and prevent them from doing so. If this is their duty they cannot be interfered with in canvassing unless the law has made it our duty to give them directions as to canvassing returns before they shall have canvassed, and had provided that it shall be their duty to follow such directions.

The Constitution has devolved no such duty upon us, nor has the Legislature attempted to do so. High on Injunctions, Vol 1, Sec. 42. An injunction, in effect, is asked to restrain the bourel from canvassing until the further order of the court, and the application for it is to the original jurisdiction- of the court, but no power to issue this writ is found in the grant of our original jurisdiction made by the Constitution. Sec. 5, Art. V, Constitution. In State ex rel., Bloxham vs.

Board of State Canvassers, 13 Fla., 55, an injunction was granted by a Circuit Judge, where power to issue such writ in any proper case was unquestionable, restraining the board from canvassing and declaring the result until his further order, the statute then, as now, requiring the board to proceed to canvass the returns on a certáin day, or sooner, if the returns were all in, and declare the result, and this court -held the injunction to be unauthorized. Randall, C. J., speaking for the court, said the order was in effect an abrogation of the statute and was illegal.

Mandamus does not lie to compel the performance of an official duty by an officer until there has been an actual default by him in the performance of it. Commissioners of Lake county vs. State ex rel., 24 Fla., 263. Allegations that officers do not intend to perform their duty, or will not do so, do not authorize the issue of the writ. State ex rel. vs. Board of County Canvassers, 17 Fla., 706, McConihe vs. State ex rel., Ibid, 238. No case for a mandamus against the State Board is made by the petition. 2.

What has been said above is applicable also to the relief asked for as to the Secretary of State; and we do not feel it necessary to saj' anything further as to him, except to call attention to the fact that it was held in the Bloxham case supra that the Secretary of State could not be proceeded against by mandamus to require him to give a certificate until after the Board of State Canvassers had performed their duties, apd he hgd been in default as to th§ performance of the special duty devolved upon him. 13 Fla., 56, 75, 76. 3.

As to any alleged default of duty by the County Canvassers of Suwannee county in canvassing precinct returns, our conclusion is to remit the petitioners to the Circuit Judge, whose jurisdiction in cases of mandamus is concurrent with ours. If they have a case for mandamus, he can administer justice with much more convenience and much less expense to all concerned than we can, as he and all the parties reside in the county of Suwannee.

Proceedings in cases of this kind are usually prompt, and to say nothing of what might have been done since the county canvass, the time intervening between the announcement of this conclusion and the next term of this court—a period of say forty days—will fully suffice for a trial before that judge, and should either party be dissatisfied with his judgment an appeal can be taken to the term alluded to, at any time before its first day, such appeal being returnable to a day in term, if .taken within thirty days of the term. Randall vs. Jacksonville Street Railroad Co., 19 Fla., 409. See Sammis vs.

Wightman, 25 Fla., 547, 550 19 seq., distinguishing as to writs of error. This exercise of discretion is also proper in view of the crowded condition of our appellate docket, and is not without precedent. Ex parte Mirzan, 119 U. S., 584, and cases cited. State ex rel. v. Stewart, 32 Mo., 379. Supreme Court Rule 30. The petition is denied.