STATE EX REL. HENRY L. LILIENTHAL, RELATOR,
v.
W. T. DEANE ET AL., RESPONDENTS
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In this mandamus proceeding, the Florida Supreme Court reviewed whether election inspectors properly rejected a ballot as 'scratched' in a mayoral election in Sanford. The court upheld the inspectors' discretionary judgment to reject the ballot, holding that courts cannot substitute their judgment for that of election inspectors on ballot validity determinations.
The court held that it cannot control the discretion or judgment of election inspectors or substitute its own judgment for theirs regarding ballot validity. The inspectors properly exercised their discretionary authority in determining the ballot was scratched, and this judgment is not subject to judicial override in mandamus proceedings.
“There is enough upon the face of the ballot to call for the exercise of judgment by the inspectors upon this point, and exercising, as under the circumstances they had the right to do, their judgment as to whether the ballot should or should not be counted by them for the relator, they have decided that it should not be”
Establishes that the ballot's markings were sufficient to require inspectors' judgment and that their discretionary determination is binding
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Join FLexlaw to unlock all legal intelligenceHenry L. Lilienthal, a candidate for Mayor in Sanford, sought a writ of mandamus against three election inspectors who rejected one ballot bearing his…
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Mr. Justice Raney
delivered the opinion of the court:
This court, in the exercise of its original jurisdiction, issued an alternative writ of mandamus to the respondents, the three inspectors at an election lately held in the city of Sanford for the office of Mayor and other municipal offices. The issue presented by the pleadings, including the returns of two of the inspectors and the traverse thereof, is whether or not the name of Henry L. Lilienthal, the relator, who was one of two candidates for Mayor, was, as it appeared upon one of the ballots voted at such election) “ scratched.” The respondents, Deane and Whiteman, say in their returns that it was scratched, and in the exercise of their judgment, as to whether it was or not, they decided that it was, and refused to count it as a vote for relator. The other inspector files a separate return, to the effect that he was in favor of counting the ballot. Two of the inspectors being introduced as witnesses identified the ballot in question, which was also put in evidence. There appear upon its face across the name of the relator several pencil marks, or lines, which though dim are plainly visible, and there are two small holes in the ballot, one through the first or given name, and the other in or just under the surname, and both seemingly made with the pencil in making the marks or lines referred to. Whether or not it was the purpose of the person who cast this ballot to vote for the relator is not necessary for us to decide. There is enough upon the face of the ballot to call for the exercise of judgment by the inspectors upon this point, and exercising, as under the circumstances they had the right to do, their judgment as to whether the ballot should or should not be counted by them for the relator, they have decided that it should not be, or in other words, thej7 have held it to be “ a scratched ballot ” in so far as the election for Mayor was concerned, and have refused to count it. In this proceeding we cannot control their discretion or judgment or substitute ours for theirs. High on Extraordinary Legal Remedies, §§24, 34 and 42.
The judgment will be that the respondents go without day, and that they recover their costs. High on Extraordinary Legal Remedies, §526 ; State ex rel. County Commissioners Sumter County, 21 Fla., 370.
It will be so ordered.
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State of Fla. ex rel. Dos Anigos, Inc. v. Lehman, 100 Fla. 1313 (Fla. 1930)…itting the word “appellate” certainly gives to this Court authority to issue such writs in the exercise of its original jurisdiction. This view accords with the interpretation of that provision since its adoption. State ex rel., Lillienthal v. Deane 23 Fla. 121, 1 So. R. 698. A multitude of cases support the view that when a municipality is legally bound to levy a tax to pay judgments, warrants, bonds or other allowed or fixed indebtedness, or interest thereon, or to provide a sinking fund for payment [*1…
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Davis v. Crawford, 95 Fla. 438 (Fla. 1928)…ld lie to control his action in a certain way the mandamus itself would be a denial that he possessed any such discretion or power. See Towles v. State, 3 Fla. 202; Gamble v. State, 61 Fla. 233, 54 South. Rep. 370; State ex rel. Lilienthal v. Deane, 23 Fla. 121, 1 South. Rep. 698; State ex rel. Moody v. Barnes, 25 Fla. 298, 5 South. Rep. 722; State ex rel. Kennerly v. Amos, 78 Fla. 552, 83 South. Rep. 393. If, on the contrary, the Secretary of State is vested under the law with no such discretion then it…
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State v. Knott, 72 Fla. 176 (Fla. 1916)…es 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…
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