Ex rel. Bisbee vs. Board Co. Canvassers Alachua Co.-Opinion of Court. gregate vote, but plainly apparent and producing no confusion whatever. The reason alleged is not a valid excuse for refusing to include the votes stated in the return in the aggregate canvass. As a reason for omitting to include the votes cast at the Dudley Store precinct, the respondents say that the inspectors returned to the Clerk the form of the oath provided for them, signed by them, but the jurat was not signed by an officer, and therefore there was no evidence that the members of the Board were sworn as provided by law. The return is otherwise regular. The inspectors are public agents authorized to conduct the election and to certify the result. Like other official persons, having acted in a public official capacity, they occupy the position of officers de facto, even though they failed to return the oath duly taken. It is entirely settled that the acts of de facto officials are valid as to the effect upon the public, though they may not be able to protect themselves in reference to their action. In The People vs. Cook, (14 Barb., 259, and 4 Selden, S. C., 67,) and State of Iowa ex rel. Rice vs. County Judge of Marshall, (7 Iowa, 186, 200,) it is held that the omission of inspectors of election to take the oath prescribed by statute will not invalidate an election held by them. In the case cited in 7 Iowa, the court remarks that the rejection of the returns from three townships, because they did not show that the officers were sworn, was not within the province of the county canvassers, and was an error. Even the court did not determine upon the sufficiency of the returns, it only decided that it was the duty of the canvassers to count them, leaving the question of law to a competent tribunal, when the case should be properly presented. See also 29 Ill., 413. A board of county canvassers is not authorized by any law thus to decide upon the official title of Ex rel. Bisbee vs. Board Co. Canvassers Alachua Co.-Opinion of Court. the inspectors of election. This reason for the rejection of the Dudley's Store returns is also invalid. As to the returns of the election held at the Gainesville precinct, the respondents answer that they refused to canvass and include said returns because the respective returns of said precinct received by the County Judge and the Clerk were not duplicates, in that one of them was a “return of an election held under an act to provide for the registration of electors and the holding of elections, approved August 6, 1868, and the acts amendatory thereof," and that the other was a return of an election held under "an act to provide for the registration of electors and the holding of elections, approved August 6, 1868, and the acts amendatory thereto approved February 7, 1872, and February 27, 1877," from which the respondents say they decided "that no election had been held at Gainsville precinct under the existing laws of the State of Florida; that the paper writings were indefinite, uncertain, contradictory, and, in the material matters aforesaid, utterly repugnant to each other." We will only say in reference to this return, that our conclusion is directly the opposite; that it shows that an election was held, as it states in direct terms that it was held under existing laws of the State of Florida, and the paper writings were not indefinite, uncertain, contradictory, or in any sense repugnant to each other. The returns were regular, conformable to law, and corresponded each with the other in every material part and word, except that one contained the votes cast for constable while the other did not. Both stated the same facts from the beginning to the end, except as to constables, and the votes should be canvassed and included in the returns to be made to the proper State authorities. In reference to the returns from the precinct called the Arredondo precinct, the respondents say that in order to Ex rel. Bisbee vs. Board Co. Canvassers Alachua Co.-Opinion of Court. ascertain the true vote from the precinct, they opened the poll box, and instead of verifying either of the returns by examining the ballots therein found, (which was the alleged purpose of examining the contents of the box,) they found certain figures or numbers on the back of a large number of the ballots, which numbers corresponded with certain numbers marked against names of persons on the poll list. For this reason the respondents determined that these marked ballots were not lawful ballots. The county canvassers could not lawfully look beyond the face of the returns in ascertaining votes cast for candidates. The statute (Act of 1877, sec. 9, amending section 24 of the act of Aug. 6, 1868,) expressly says of the duty of the county canvassers, "such canvass shall be made solely and entirely from the returns of the precinct inspectors in each election district, as filed by them with the County Judge and Clerk of the Circuit Court 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 at any of the polling places or precincts in the county, as shown by the returns of the inspectors of such polling places or precincts." The county canvassers have only to determine whether the paper is a return or certificate signd by the inspectors, and then, if it is possible to ascertain the number of votes cast for each person for each office voted for, compile the figures from the several returns and certify the aggregate to the proper officers whose duty it is to receive and canvass the county returns. This plain duty is set forth in the law too clearly to be misunderstood by county officers. This rule has been observed in every case where this question has come before the courts of the various States upon similar statutes. The county board has no judicial discretion, and no power savoring of judicial judgment beyond ascertaining that the returns are signed by the persons appointed Ex rel. Bisbee vs. Board Co. Canvassers Alachua Co.-Opinion of Court. or elected, as provided by law, to be inspectors of the polling places, a power incident to their office in the performance of their ministerial functions. Counsel for respondents suggests that the county judge and the clerk, being the only officers expressly designated to be members of the canvassing board, (except that the sheriff shall act in the place of either of them who may be absent, &c.,) and that a Justice of the Peace shall be called in by them to be a third member of the board, and that, therefore, the writ of mandamus cannot go against the justice, as no individual justice is designated law. by the There are some adjudications in which the writ was allowed as to the officers designated, to-wit: the judge and clerk with directions to call in a justice. But here the judge and clerk have appointed a justice of the peace to act as the third member of the board, to-wit: Edwin A. Castellaw, and these three officers met and organized themselves into a canvassing board for the county of Alachua, and entered upon their duties and canvassed a portion of the returns, but have omitted fully to perform their duties under the law. In the State of Iowa, ex rel. Rice, 9 Iowa, 344, the court says: "The order of the peremptory writ extends to the justices as well as to the county judge, in its legal effect. If it were not so they might defeat the object intended, and so it would be in this case. The judge with the justices, as canvassers, must do what is commanded by the writ. Therefore, the writ of attachment should have issued against the justices as well as the judge. The only discretion now left them is to compute the vote for the respective places." In the present case, Mr. Castellaw, having become according to law a member of the board of canvassers, he is as fully a member and amenable to this proceeding as the Ex rel. Bisbee vs. Board Co. Canvassers Alachua Co.-Statement of Case. other officers who are members of the board under the same statute. Mr. Castellaw, the Justice of the Peace, was not served with the alternative writ, the sheriff not being able to find him. But he was served with due notice of the application to this court in the first instance, and has failed to respond. The notice was served by a person, not an officer, who makes his affidavit of the service of a copy of the petition for mandamus as well as notice of the time and place of its presentation to this court. This is sufficient. served gave him every opportunity of defence that could have been obtained by an alternative mandamus. Board of Commissioners of Knox county, vs. Aspinwall, 24 How. 376; People vs. Pearson, 1 Scammon, 458; Home Insurance Company vs. Schiffer, 12 Minn., 382; ex parte Rogers, 5 Cowen, 526. The demurrer of the relator is sustained. The notice A peremptory writ is awarded against the respondents, Gardner, County Judge, Carlisle, Clerk of the Circuit Court, and Edwin A. Castellaw, Justice of the Peace, of the county of Alachua, as prayed, commanding them to proceed, and canvass all the returns of the election received from the several precincts or polling places in Alachua county, and make returns or certificates of the result of said election, in said county, as shown by all of said returns, to the Secretary of State, and to the Governor of the State of Florida, and that they do perfectly execute said writ of mandamus; and how they shall have executed it, make return to this court on or before the twenty-sixth day of November, A. D. 1878, at 10 o'clock A. M., to be filed in the office of the Clerk of this Court. The peremptory writ issued pursuant to the judgment of the court, requiring performance to be made before or on the 26th day of November, 1878; and a return of per |