THE STATE OF FLORIDA, ON THE RELATION OF W. V. KNOTT, RELATOR,

v.

H. CLAY CRAWFORD, SECRETARY OF STATE, THOMAS F. WEST, ATTORNEY GENERAL, AND J. C. LUNING, STATE TREASURER OF THE STATE OF FLORIDA, AS AND CONSTITUTING THE STATE CANVASSING BOARD OF PRIMARY ELECTIONS OF THE STATE OF FLORIDA, RESPONDENTS

The second proposition, however, is one in which we think there is merit. The respondents in their own behalf, upon their own and sole responsibility aver “that the ballots were unlawfully tampered with and changed prior to the time when the last count was made and that said count does not give the true result of said election” in said precincts. The “last count” was made under order of the Circuit Court. In its last analysis the averment is nothing less than an imputation of fraud upon the Circuit Court’s order, and a challenge as to its good faith. A charge so grave emanating from a source so high as three Cabinet Officers of the State Government cannot be ignored. It presents an issue as to the correctness of the amended returns as certified to the Secretary of State and the Governor under the order of the court. In the case of State ex rel. Knott v. Haskell, supra, the court said that “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.”

The contention of counsel for relator that the question cannot be raised in this proceeding because the judgment of the Circuit Court making the order under which the original returns were amended is res adjudicata is not sound as to these respondents who were not parties to that proceeding. They alone could inject the question of fraud in this proceeding and upon their own responsibility they have presented the issue, which is not aided in any degree by the affidavits filed as exhibits to their answer and which have no proper place in that pleading. It is true that so far as the Inspectors and Clerks of the election at the precincts named are concerned they are es-topped by the court’s order in the proceedings to which they were parties from raising the issue at this late day, they would be estopped from impugning the integrity of their own certificates to the amended returns, because the defense interposed here was available to them in the Circuit Court. The obligation resting upon them under the law to correctly perform their duty would have impelled them it would seem to make the defense at the proper time and not seek at this late date to attack the correctness of the court’s order and the honesty of their own certificates. The law of estoppel would prevent them and public policy preclude such a course. The respondents, however, are not bound by the court’s order. They may make the defense. They are defendants in a new proceeding involving the performance of a public duty and have a right to question the validity of the amended returns made under a court’s order upon the ground of fraud. The issue will have to be met. The burden will be upon respondents to prove their averments of fraud.

The motion to strike parts of the answer is denied. So also is the motion for a peremptory writ denied. The relator is given until Tuesday, the 12th instant, to join issue upon the averment of fraud.

Taylor, C. J., and Cockrell, Whitfield and Ellis, JJ., concur. Shackleford, J.,

absent.

Issue was joined on the answer of the respondents and testimony was taken before the court. During the progress of the hearing counsel for the respondents announced that upon the evidence adduced for the respondents,' rested their case. Whereupon the court stated that it was of the opinion that as to Hamilton County no prima facie case of fraud had been made under the averments of the answer; but that as to Madison County the relator may offer rebutting testimony. Counsel for the relator asked leave to amend the writ by excluding Madison County, which was granted, and Madison County was eliminated from the proceedings on motion of the relator. Thereupon it appearing that on the evidence under the alternative writ as amended, the relator was entitled to a peremptory writ, which was awarded.