State ex rel. S. J. Catts, Relator, v. H. G. Mason et al., Respondents, 72 Fla. 251

Per Curiam. —The demurrer interposed by the relator to the answer of respondents is overruled. The motion to strike certain portions of the answer and. the motion for a peremptory writ are denied.

The alternative writ commands the inspectors of precinct No. 3 in Alachua County to sign the returns and the County Canvassing Board to make out in duplicate new returns of all the votes cast for Governor in said county so that said new return shall include the votes cast for Governor as shown by the original first and only returns from said precinct Number 3 * * and shall include the votes cast for the candidates for Governor in all other precincts of sáid county of said, election as shown and only as shown by the original returns made by the Inspectors of the said several .precincts of said county.

The respondents answer in substance: that prior to the application for a writ of mandamus in this cause, an application was made by another party who was a candidate in the same primary election, to the Circuit Court for Alachua County for a writ of mandamus to be directed against all the inspectors and clerks of all the precincts in said county and the County Canvassing Board to compel them to correct errors and inaccuracies in the original Returns and the canvass thereof; that said alternative writ was issued and at the time of the answer was being complied with; that the original returns were incorrect and that to comply with the writ in this case would be to perpetuate an error and confirm an untruth.

Now the right of a candidate in a primary election is to have the vote's cast for him accurately counted and proper return thereof duly made; this is the public duty which the officers of the election owe to^ the public and the duty which the candidates equally have -a right to have performed. No candidate may have a writ of mandamus against any election officer to compel him to do any act inconsistent with a correct and accurate performance of duty.

If the original canvass of the Alachua ■County primary election returns was based upon inaccurate returns of the vote cast at the different precincts, then obviously the county canvass was erroneous, and the court will not compel the respondent to perform

an act which is admittedly based upon error. The Circuit Court for Alachua County in this matter, a court of concurrent jurisdiction with the Supreme Court, had airead}' taken jurisdiction of the cause which has for its purpose the correction of the election returns and the returns of the County Canvassing Board as based thereon. These allegations of fact are admitted by the demurrer and motion for a peremptory writ. If the alleged facts are true they constitute a complete answer to> the alternative writ.