STATE, EX REL J. E. PEACOCK,
v.
E. A. LATHAM, CHAIRMAN OF BOARD OF COUNTY COMMISSIONERS, AND O. G. SAGE, SUPERVISOR OF REGISTRATION OF VOLUSIA COUNTY, AS AND CONSTITUTING A MAJORITY OF THE COUNTY CANVASSING BOARD OF VOLUSIA COUNTY, FLORIDA, ET AL.
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In this 1936 mandamus case, the Florida Supreme Court held that allegations in an alternative writ of mandamus were sufficient to warrant a peremptory writ ordering a recount of votes in a primary election for County Judge, but stayed the mandamus proceeding pending completion of a concurrent election contest proceeding in Circuit Court that offered more comprehensive relief.
The Court held that the uncontradicted allegations in the alternative writ were sufficient in law to warrant a peremptory writ of mandamus ordering a recount and recanvass of votes actually cast. The Court retained jurisdiction to issue such a writ even where an election contest proceeding was available, but chose to stay the mandamus proceeding pending final conclusion of the more comprehensive Circuit Court election contest proceeding.
“The Court holds that,the allegations of the alternative writ which are admitted to be true for the purpose of testing the sufficiency of the alternative writ, jf uncontradicted and undenied by respondents, are sufficient in law to warrant the issuance of a peremptory writ of mandamus ordering a recount, retally and recanvass of the votes actually cast marked with an appropriate "X" mark and voted for either the relator or his opponent for the office of County Judge in the primary election of June 23, 1936.”
Establishes that the sufficiency of the writ's allegations, if uncontradicted, is sufficient to warrant mandamus relief for a vote recount.
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Join FLexlaw to unlock all legal intelligenceRelator J. E. Peacock sought mandamus relief to compel a recount, retally, and recanvass of votes cast for the office of County Judge in the primary e…
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— In this case the motion to quash the alternative writ of mandamus, the motion to dismiss this proceeding and the demurrer to the alternative writ of mandamus are each severally overruled. The relator’s demurrer to the plea in abatement is sustained.
The Court holds that,the allegations of the alternative writ which are admitted to be true for the purpose of testing the sufficiency of the alternative writ, jf uncontradicted and undenied by respondents, are sufficient in law to warrant the issuance of a peremptory writ of mandamus ordering a recount, retally and recanvass of the votes actually cast marked with an appropriate “X” mark and voted for either the relator or his opponent for the office of County Judge in the primary election of June 23, 1936. But neither *71the irregularity of the conduct of the election nor the intrinsic validity of the ballots actually received into the ballot boxes can be inquired into in this kind of a proceeding.
The Court is of the opinion, moreover, that upon the authority of the decision of this Court in the case of Farmer v. Carson, 110 Fla. 245, 148 Sou. Rep. 557, the election contest proceeding that is shown to have been instituted by relator in the Circuit Court of Volusia County under authority of Sections 416 C. G. L., 359 R. G. S., 444 C. G. L., 379 R. G. S., affords an efficient available remedy and legal procedure by which the Circuit Court can investigate and determine, not only the legality of the votes cast, but can correct any inaccuracies in the count of the ballots by having them brought into court and examining the contents of the ballot boxes if properly preserved!
The availability of a Circuit Court election contest procedure for correcting inaccuracies in the count of ballots that affect the result of an election does not oust the jurisdiction of this Court to correct the count by mandamus, since mandamus for that purpose lies irrespective of whether or not the correction of the count, when made, will change the result. But where both kinds of proceedings are shown to be pending, this Court may arrest its own processes in a mandamus proceeding brought before it in order that a concurrently pending Circuit Court election contest proceeding may proceed to a final conclusion as to matters in issue not capable of being decided in the mandamus proceeding and which, if decided in relator’s favor, may make the mandamus proceeding moot.
Therefore the Court will arrest the further progress of this proceeding in mandamus (but retain jurisdiction thereof on its docket) pending the prosecution of a final *72conclusion of the election contest proceeding instituted before the Circuit Court wherein equivalent relief may be had in addition to other possible relief not available to be granted in this case.
Ordered accordingly.
Wi-iitfield, C. J., and Ellis, Terrell, Buford, and Davis, J. J., concur.
Brown, J., concurs in the conclusion.
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Gore v. Harris, 772 So. 2d 1243 (Fla. 2000)…ng as the voter’s intent may be discerned from the ballot, the vote constitutes a “legal vote” that should be counted. See McAlpin v. State ex rel. Avriett, 155 Fla. 83, 19 So. 2d 420 (1944); see also State ex rel. Peacock v. Latham, 25 Fla. 69, 70, 169 So. 597, 598 (1936) (holding that the election contest statute “affords an efficient available remedy and legal procedure by which the circuit court can investigate and determine, not only the legality of the votes cast, but can correct any inaccuracies in…
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McPHERSON v. Flynn, 397 So. 2d 665 (Fla. 1981)…ghts as are explicitly set out. See Pearson v. Taylor, 159 Fla. 775, 32 So. 2d 826 (1947). The statutory election contest has been interpreted as referring only to consideration of the balloting and counting process. State ex rel. Peacock v. Latham, 125 Fla. 69, 169 So. 597 (1936); Farmer v. Carson, 110 Fla. 245, 148 So. 557 (1933). The balloting process is distinct from the legal qualifications of the candidates, and we can find no authority for extending an election contest to areas outside the balloting…
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State v. LEE, 150 Fla. 35 (Fla. 1942)…Fla. 625, 180 So. 22; Florida Military Academy, Inc., v. State ex rel. Moyer, 127 Fla. 781, 174 So. 3; State ex rel. Enby v. Wood, 140 Fla. 185, 191 So. 769; State ex rel. Campbell v. Sloan, 135 Fla. 179, 184 So. 781; State ex rel Peacock v. Latham, 125 Fla. 69, 169 So. 597; State ex rel. Waldron v. Wilkinson, 117 Fla. 463, 158 So. 703. Several questions are posed by counsel for the respective parties for a decision by this Court, but one of the essential questions here presented for adjudication is: Are…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Farmer v. Carson, 110 Fla. 245 (Fla. 1933)
- The Stoneman Co. v. Briggs & Warr, Inc., 110 Fla. 107 (Fla. 1933)