The State of Florida, ex rel., W. V. Knott, Relator, v. E. E. Haskell, et al., Respondents, 72 Fla. 176

Per Curiam. —(After stating the facts).—The purpose and command of this writ are that the election inspectors and clerk of each election district of Putnam County shall properly, correctly and accurately tally and count, and proper, correct and accurate return make of all the votes cast in the primary election held on June 6, 1916, for the several candidates for nomination by the Democratic Party as its candidate for the office of Governor of the State of Florida, to be voted for at the next ensuing general election, so that such returns from the respective election districts will properly, correctly and accurately show all the first choice vote and all of the second choice vote cast for said candidates respectively in accordance with law, and that such returns shall by the County Canvassing Board be properly, correctly and accurately canvassed and return of such canvass made to the State officers in accordance with law.

All of the inspectors and clerks complied with the writ except the inspectors and clerk of Election District No. 2, who by demurrer and motion to quash raised questions of law to be determined.

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 canvass the returns of a primary election, such duties being ministerial in their nature involving no discretion. See D’Alemberte v. State ex rel. Mays, 56 Fla. 162, 47 South. Rep. 489.

This principle applies to precinct officers whose ministerial duty it is to correctly count and make return of the votes as cast. It is manifest that for the purpose of requiring the election officers to correctly and accurately count and return the votes as cast, mandamus and not quo warranto is the remedy, the statute making no special provision for enforcing these ministerial duties. See Territory v. Suddith, 15 N. M. 728, 110 Pac. Rep. 1038; People ex rel. Sanderson v. Payne, 64 How. Prac. (N. Y.) 357. A protest to the Party Committee would be unavailing, such committee having no authority in the premises.

The relief sought has reference to rights acquired under the primary election law which are distinct from those acquired at the subsequent general election. 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. Such writ issues only when the law affords no other adequate remedy; and where the writ is applicable it should be framed SO' as 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. See Labette County Com’rs v. United States, 112 U. S. 217, 5 Sup. Ct. Rep. 108; State v. Harbison, 64 Kan. 295, 67 Pac. Rep. 844.

In this case the duties of the inspectors and clerks of an election district and those of the county canvassing board are distinct but their duties co-operate in the performance of the completed duty of ascertaining the result of the election in the county as a unit. Even if the duties of the officers of the several election districts can be regarded as not co-related, the duties of all of them have relation to the duties of the county canvassing board, and the joining of all the election district officers in one writ cannot affect or embarrass the officers of any. one district in the performance of their duty.

One of the most vital contentions is that as the respondents' have made a count and a return of the votes cast, and as the ballots have been delivered in the sealed ballot box to the Supervisor of Registration under the law, the respondents, inspectors and clerk, cannot voluntarily again make a count and return, therefore they cannot be compelled to do so. Election officers may by manciamus be required to correct mistakes made in their return. See State v. County Judge, 13 Iowa 139. The duty to make a correct return is a continuing one. See Schneider v. Lang, 66 Fla. 492, 63 South. Rep. 913.

The statute provides that “the poll lists and oaths of the inspectors and clerks, together with all ballot boxes, ballots, ballot stubs, memoranda and papers of all kinds used by the inspectors and clerks in conducting such election shall also 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 succeeding general election.” This enactment requires the delivery to the supervisor of registration of the ballots, etc., sealed up in the ballot boxes, and that they shall be “carefully preserved by him until after the next succeeding general election.” The candidates nominated at the primary are to be voted for at the ensuing general election and the obvious purpose of this provision is the safe keeping of the ballots, etc., by the chief election officer of the county until after the next general election for such use as the law may direct.

And a proper use of the ballots, etc., is indicated by the provision of

Section 55 relative to “proper parties defendant in all matters affecting the accuracy of the election returns.” This

section necessarily suggests the remedy of mandamus because in a contest proceeding or quo warranto the opposing contestant would have to be a party.

Mandamus having been previously used in ascertaining the correctness of returns made by inspectors and, clerks of election, by an examination of the ballots, the Legislature recognized this and provided that the ballots, etc., shall be carefully preserved in the sealed ballot boxes by the county election officer “until after the next succeeding general election.” Even if a sealed ballot box with its proper contents may not be opened by the inspectors after they have sealed it and transmitted it to the supervisor of registration, for the purpose of correcting errors and mistakes made in the count and return of the votes as cast, the statute does not forbid the courts but expressly recognizes the authority of the courts “in all matters affecting the accuracy of the election returns.” In State ex rel.

Lilienthal v. Deane, 23 Fla. 121, 1 South. Rep. 698, 11 Am. St. Rep. 343, this court issued an alternative writ of mandamus to the election inspectors in a municipal election, but the judgment of the inspectors as to whether a ballot was. “a scratched ballot,” was not disturbed. In Schneider v. Lang, 66 Fla. 492, 63 South. Rep. 913, it was held that it was a continuing duty of the inspectors and clerk who conducted an election to make a proper return of the result of the election.

In these two cases it does not appear that the ballots, etc., had, pursuant to statute, been delivered by the inspectors to another officer for safe keeping.

But in the case at bar where the statute expressly requires the ballots, etc., to be sealed up in the ballot box and transmitted to another officer for safe keeping, the inspectors and clerk cannot avoid obedience to a judicial writ to properly count and return the ballots as cast, as is required of them by law, when such writ gives the inspectors and clerk access to the ballots, etc., that are required to be “carefully preserved” by the county election officer, a defendant in the writ, “until after the next succeeding general election,” for the obvious purpose of using them in appropriate judicial proceeding’s in “matters affecting the accuracy of the election returns.” The statutes of this State, unlike those of some other jurisdictions, do not provide that the ballot boxes when sealed and delivered to the custody of a particular officer for safe keeping, shall not be opened or the contents used except for stated purposes.

The sealing and safe keeping under our statute are manifestly designed for use in court proceedings at least in “matters affecting the accuracy of the election returns.” Secs. 45 and 55, Chap. 6874, Acts of 1915. The command of the writ that the county canvassing board shall canvass the returns as corrected and made by the inspectors and clerks of the several election districts does not violate

Section 46 of the primary election law. That

section confines the county canvassing board to the “certificates and returns” as made by the inspectors and clerks, but it contemplates the making of correct ami accurate “certificates and returns” by the inspectors and clerks. The ballots, etc., are required to be preserved for the purpose of showing in authorized proceedings the correctness and accuracy, or the incorrectness and inaccuracy of the certificates and returns made by the inspectors and clerks of election.

The general election law of the State, as the same is contained in the General Statutes, requires the inspectors of election after the canvass of the ballots to transmit to the supervisor of registration the poll lists, oaths, ballot boxes, ballots, ballot sheets, memoranda and papers of all kinds used in conducting the election, sealed up to be filed in his office.

The general election law, however, contains no provision for any procedure involving matters affecting the accuracy of the election returns, yet can it be doubted for a moment that the power is inherent in the judicial branch of the government to cause to be corrected an error on the part of election officers who by inadvertence and mistake, or by design and fraudulent intention have made an untrue certificate or return as to the votes actually cast in any election precinct, and by such erroneous or false return defeat the will of the electors?

To deny the existence of this power in the judicial branch of the government is to qualify, if not deny, the doctrine that every public officer can be compelled by the court to perform the duties pertaining to his office. This power is wholly independent of the statute; it is an elemental and fundamental principle.

If the argument of respondent’s counsel is sound, namely: that the determination of a board of inspectors as to the number of votes cast for or against a candidate or proposition at an election is forever conclusive, no matter how flagrant the fraud perpetrated, or how gross the neglect of duty, then it follows that it is not .the fact of a majority vote of the electors which makes a proposed amendment to our constitution a part of it, or a majority or plurality vote of the electors which determines the selection of our State and county officers, but the returns or certificates of the inspectors, however erroneous they may be, determine the will of the electors.

The general election law contains no evidence whatever of a legislative purpose to make the first determination of a board of inspectors to be forever final, notwithstanding such determination may have been induced by fraud or reached by disregarding the requirements of the statute or arrived at by the grossest and most flagrant errors, mistakes and misconception of duty, and in the absence of such legislative purpose, we think that it would be the duty of the court in a proper case by writ of mandamus to order the inspectors to make their returns and certificates speak the truth if by any possibility it could be accomplished.

The able argument of respondent’s counsel has failed to convince us that the action of inspectors of election is not subject to direction by the court by its process of mandamus even under the general election law, which contains no express provision for proceedings involving “matters affecting the accuracy of the election returns.” In many cases cited by respondent’s counsel in their briefs, and in others found by the court by its own research, the doctrine was announced that a board of canvassers having once canvassed the vote and declared the result became functtts officio and could not be reconvened and required to do what the statute had not expressly required it to do.

We have found abundant authority not only in this State, but in other States, asserting the power of the court to compel by mandamus the reconvening of a board of canvassers and a recanvass of the vote. See authorities above cited, and Moses on Mandamus 90; People ex rel. Ryan v. Nordheim, 99 Ill. 553; State v. Pigott, 97 Miss. 599, 54 South. Rep. 257; 9 R. C. L. p. 1112 and authorities cited in note to case reported in 36 L. R. A. (N. S.) 1084.

But the case at bar is one in which the power of the court to issue the writ of mandamus to require the inspectors of a primary election to correct the errors which it is admitted by the demurrer they made in tabulating and certifying to the vote cast is involved. The primary election law, as pointed out, expressly provides for proceedings involving “matters affecting the accuracy of the election returns.”

Chapter 6874 Laws of 1915.

Many of the cases cited by counsel for respondents involved the power of the court by writ of mandamus to compel election officers to correct errors in the canvass of the votes at general elections and in some of the cases like the later New York cases construing the particular statute, it was held that the Legislature had by the statute shown its intention to prevent the exercise of the power by the court, and the court interpreted this to be a declaration of a public policy that a speedy declaration of the result of a general election was of greater importance to the public than the individual right to an office.

But it is perfectly obvious that this principle is'not applicable to the selection of candidates by political parties at a primary election. Could any one maintain, for instance, that public policy would require a speedy determination of the result of a primary election to select candidates for the Republican, Socialist or Prohibition parties, assuming that they were numerically strong enough to claim the benefits of the primary election statute? Eight years ago this court held that the courts would enforce the rights of a candidate arising under the primary election laws, D’Alemberte v.

State, supra, and this is what the relator is asking in this case. Other cases cited by respondent’s counsel hold that the doctrine for which they contend does not apply where the board adjourned without having completed its work, or refused to perform it, or had made errors in the canvass. See People ex rel. Ryan v. Nordheim, supra. Under our primary election law, however, the power of the court to compel the primary election officers to correctly perform their duties is expressly recognized as pointed out above. The failure of the statute to declare the mode of procedure under it does not defeat its purpose.

State ex rel. Smith v. Burbridge, 24 Fla. 112, 3 South. Rep. 869. The intention of the lawmakers being apparent from the language used to secure a fair primary election and a correct and honest count of the votes by the inspectors, the court will not adopt a construction that will defeat such purpose, but will upon a proper application by the use of such writs as are at its command require the primary election officers to make their returns speak the truth if the records, ballots and poll lists have been securely and safely kept by the proper officers as the law directs.

Of course, if this has not been done, and the ballot boxes, poll lists, ballots and records have been tampered with, or bear evidence of having been changed so that the truth cannot be ascertained from the records which the law commands the Supervisor of Registration to safely keep, then manifestly the purpose of the act is defeated, the will of the people as expressed in the statute cannot be carried out, and the peremptory writ will be denied.

For the court to adopt any other construction would be to deny to a candidate his rights arising under the primary election laws, render the primary election law a means for the election of candidates by inspectors of election instead of by the ballots of party members and place into the hands of the professional politician an instrument for controlling party nominations, thus frustrating the sole reason for a primary election law; the “absolute assurance to the party member that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus given effect, whether it be in accord with the wishes of the leaders of his party or not, and that thus shall be put into effect in the primaries the underlying principle of democracy which makes the will of an unfettered majority controlling.

In other words, the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards.” People ex rel. Coffey v. Democratic General Committee, 164 N. Y. 335, 58 N. E. Rep. 124. The demand for Primary Elections arose from distrust of representative government and the need for pure democracy.

In this spirit the Primary Election law was enacted, and it would be a travesty to hold that its only result has been to change from party government by conventions composed of delegates elected by the party members to government by inspectors appointed by the County Commissioners.

Section 46 of

Chapter 6469 provides that the county canvassing board “shall proceed publicly to canvass the vote given for the several nominations and the person as shown by the returns on file in the offices of such County Judge and Supervisor of Registration.

Such canvass shall be made solely, exclusively and entirely from the returns and certificates of the inspectors in each Election District, as signed and filed by them with the County Judge and Supervisor of Registration, 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, in any polling place in the county, as shown by the returns of the inspectors of such polling place.” This enactment clearly contemplates that the “returns and certificates of the inspectors in each election district” shall contain a correct and accurate count and return of the votes as cast.

The county canvassing board cannot change or vary the count as shown by the returns of the inspectors. If errors were made in the count and returns of the ballots, the inspectors must correct them. This writ merely commands the accurate returns that the law requires of the respondents as ministerial officers.

The purpose of this writ is not to force the respondents to perform the act of changing or varying the number of votes cast for the candidates for Democratic nominee for Governor; but it is to require an accurate count and return to be made of the votes as actually cast by the electors at the polls, a duty imposed by law.

Though the inspectors may have taken an oath “that they will honestly, faithfully and to the best of their ability do and perform all the duties of their respective offices,” the accuracy of their ministerial count and returns of the votes as cast, may be reviewed in appropriate judicial proceedings. This proceeding does not adjudicate the rights of the several candidates to a party nomination, or their eligibility to hold the office for-which they may be candidates.

An accurate count and return may be required; and the. effect of such accurate count and return in other proceedings or on other matters does not exclude the proper use of this writ.

The demurrer and motion to quash admit the allegations of the alternative writ that the inspectors and clerk of Election District No. 2 “did not themselves personally call and tally the votes cast;” “that they permitted outside parties * * * to assist in calling and tallying the votes * * * at said election;” “that said outsiders did not correctly call and tally said votes, and the incorrect call and tally made by such outsiders in part formed the basis of the pretended returns sent in by the said inspectors and clerk;” “that the returns so sent in do not show the true number of first and second choice votes cast for relator * * * as appears upon the ballots cast;” “that the Supervisor of Registration and County Judge, two of the members of the County Canvassing Board, now have in their custody and control the ballot boxes containing the original ballots cast;” “that the said ballot boxes have been preserved intact and that the ballots therein contained have not been tampered with.” These and other allegations admitted by the demurrer show a right to the full and proper performance of the duty prescribed by statute and commanded by the writ.

It does not appear that the provisions of the statute, particularly those relative to the casting and counting and return of second choice votes, are so uncertain as to be void, and they cannot be said to be against public policy when they were enacted by the lawmaking power of the State. The provisions as to second choice votes, relating as they do only to primary elections for nominating party candidates and not the election of officers, do not conflict with any provision of the organic law. See Kelso v. Cook, Ind. , 110 N. E. Rep. 987; Adams v. Lansdon, 18 Idaho 483, 110 Pac. Rep. 280; State ex rel. Zent v.

Nichols, 50 Wash. 508, 97 Pac. Rep. 728. Questions of eligibility to hold office are not determined in this 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.

Section 22,

Chapter 6469, provides that every candidate for nomination to any office shall make oath that, among other requirements, “he is qualified under the Constitution and laws of Florida to hold the office for which he desires to be nominated.” This provision makes the part of the prescribed oath “that he is qualified” mean that he has the qualifications for the office to be made applicable when elected and the term of the office begins. In this case only those who have a duty to perform under the law in the premises should be made parties respondent.

There is no merit in the contention that the duties of the inspectors and clerks cannot be performed at the court house of the county where the ballot boxes are kept under the statute. A previous demand for the performance of the duty was unnecessary, as the duty is a- public one. See, County Commissioners Columbia County v. King, 13 Fla. 451. Quo warranto is used to contest the right to an office, not to test the accuracy of the count and return of a nominating election.

This writ of mandamus is used not to change or vary the number of votes cast, but to require officers to perform the ministerial duty to ascertain and return with accuracy the number of votes as actually cast. The secrecy of the ballot is not invaded by a proper and accurate count any more than it is by an erroneous count. Under the law the ballots are not marked so as to be identified. The probative force, or the effect of the count and return made under this writ is not determined by the performance of the ministerial statutory duty required by the writ.

For this reason alone the other candidate for the nomination is not a necessary or even a proper party, since 'he has no duty to perform in the premises and his rights are not affected by an accurate count and return of the votes as actually cast. No fraud is alleged against the respondents, and without an allegation it may be assumed “that the ballot boxes were properly sealed and returned by respondents,” since that was their statutory duty.

The allegations of the alternative writ admitted by the demurrer indicate that the ballot boxes and their contents have been “carefully-preserved” by the Supervisor of Registration as required by the statute.

Section 55,

Chapter 6469, as amended by

Section 9,

Chapter 6874, provides that “all contests over the results of a primary election shall be determined according to the law applicable to like contests over the results of a general election. “The County Canvassing Board are hereby declared to be the proper parties defendant in all matters affecting the accuracy of the election returns.” These enactments clearly recognize the use of judicial writs in “contests over the results of a general election,” and contemplate that similar judicial proceedings shall be had in “all contests over the results of a primary election,” at least “in all matters affecting the accuracy of the election returns” in a primary election.

The ministerial legal duty of election officers to make true and proper counts and returns of election may under the common law adopted, by statute in this State be enforced by mandamus. And such writ has been so used in this State before the enactment of the primary law. This consideration assists in ascertaining the legislative intent in enacting

Section 9 of

Chapter 6874, above quoted. In confining the county canvassing board to the precinct returns, and in making no special provision for the county canvassing board or other officers to determine any alleged errors and inaccuracies in the count made by the precinct officers, the Legislature clearly left such matters to the courts whose jurisdiction attaches in the absence of an excluding law. The provision of the statute that “the county canvassing board are hereby declared to be the proper parties defendant in all matters affecting the accuracy of the election returns,” does not so change the law of mandamus or the rules of law as to parties to litigation or the provisions of

Section 46,

Chapter 6969, forbidding the County Canvassing Board to “change or vary in any manner the number of votes cast * * * as shown by the returns of the inspectors,” as to make the County Canvassing Board the only defendants in a writ of mandamus commanding an accurate count of the ballots cast at an election.

The suggestion that the inspectors and clerks may not voluntarily perform the act commanded by the writ because the ballots are in a sealed box, which is by law in the custody of the Supervisor of Registration, does not exclude mandamus any more than if the ballots were secured from access by a lock that could not be opened by the inspectors and clerk.

And if the writ of mandamus can be made effective to give access to the box by requiring the custodian of the box, who is a defendant in the writ, to permit proper access, the respondents cannot avoid performance of the continuing duty imposed upon them by law of correctly counting and returning the ballots as cast, when access to them is afforded by virtue of the writ. This is not a case where the duty commanded is impossible of performance as in State ex rel. Bisbee, Jr. v. Inspectors of Election at Precinct No. 4 of Madison County, 17 Fla. 26; State ex rel. Dixon v.

Trustees of the Internal Improvement Fund, 20 Fla. 402; Silvers v. State, 68 Fla. 368, 67 South. Rep. 143. Nor does the writ require an unlawful act as in County Commissioners of Columbia County v. King, 13 Fla. 451; State ex rel. Walker v. Stewart, 49 Fla. 259, 38 South. Rep. 600. In State ex rel. Bisbee, Jr. v.

Inspectors of Election at Precinct No. 4 of Madison County, supra, a peremptory writ of mandamus was denied because the writ would be fruitless, the returns having been made “in due form” under the law, but was stolen from a messenger by whom they were being taken to the proper officer, and the inspectors had no memoranda of the vote cast from which to make other returns. In Cawthon v. State ex rel. Adams, 62 Fla. 133, 56 South. Rep. 404, it appeared that a court of chancery was a more appropriate and proper form. In Dixon v.

Trustees of Internal Improvement Fund, supra, the trustees having already conveyed the land, mandamus to convey, to another party was refused, the real controversy being between purchasers of land. Likewise in State ex rel. Sunday v Richards, 50 Fla. 284, 39 South. Rep. 152, adverse claims to- land were involved and there was a remedy otherwise provided by law. The demurrer to the alternative writ and the motion to quash the alternative writ are overruled.

Upon the argument on the demurrer and motion to quash the alternative writ on August 1st, counsel for the respondents asked the court to allow them ten days from that date in which to submit to the court a return to the writ in the event the demurrer and motion should be overruled; it is ordered, therefore, that the respondents be allowed until August nth in which to submit any issue of fact on which the command of the alternative writ ought not to be made peremptory. Taylor, C. J., and Si-iackleford, Cockrell, Whitfield and Ellis, JJ., concur.