ing of the electors. This statute has, of course, no bearing upon the Florida contest, except in so far as it may be taken as an admission that before its enactment a State might provide such means as her laws recognize, finally and conclusively to determine such questions after the day upon which electors by the Federal law are required to meet. However, the student will be interested in the observation that the constitutionality of this law is questionable. In effect the law is utterly destructive of the proceeding in the nature of a quo warranto: and for the simple reason that this action cannot be invoked until there has been some user, or threat or attempt of user, by the party against whom the writ is aimed. Had this provision of 1887 been the law at the time of the pro-Hayes report by the State canvassing board of Florida, the courts, the final determinant provided by the law for reviewing such actions by the State board, would have remained powerless, since the State canvassing board did not conclude its labor until after one o'clock of the morning of the day upon which the electors by the Federal law were required to meet. This restrictive Federal measure, therefore, is inconsistent with the true American conception of State sovereignty; and of that part of such sovereignty preserved by the Federal Constitution necessary to protect the State office of Presidential elector. It is unwise and unfair because it restricts the State to limits too narrow as compared with the great interests to be served.

It is, for these reasons, confidently believed that the judgment of the Florida court rendered in the quo warranto proceeding was final as to the rights of the parties claiming to be electors; and that its conclusion

that the Hayes claimants were and at all times had been mere usurpers, whose acts were null and void, was binding upon the Commission; and that that judgment embodied an authoritative and conclusive construction of the Florida law, by which law the Commission claimed to be governed, and that that construction should have been respected.

W

VIII.

The Florida Election Law.

E are now to examine the decision of the last question, as the majority shaped the situation, before the Commission in the Florida Case. Rejecting the acts of the State subsequent to the electoral day, the majority of the Commission assumed to determine for the State which acts of her election officers were according to her laws, and thus had become the act of the State. So, entirely aside from the question whether a State is functus officio as to her electors after the day upon which the Federal law requires electors to cast their votes, we come to the question whether the Republicans were right in the last analysis in deciding that the board of State canvassers "is made by the statute the ultimate declarant of what the vote was and of its results;" and that the board's jurisdiction over the returns "is not merely to count up and compare the returns, but upon all the facts submitted to them to determine, that is, to decide, who is elected."

Resting alone upon this majority interpretation of the State election law, the correctness of that interpretation is most vital to the Hayes title. Hence to find the true interpretation of the State law, and to measure the actions of the State board by that law, that we may see if the majority was right in holding that the law was such that the pro-Hayes report was the act of the State, we must see just what the State

board did. With the acts of the board and the law both before us, we may grasp firmly the points involved.

We remember that two claims were made by the State canvassing board. First, that upon their face the returns before the board showed a majority for the Hayes claimants. An examination of this claim is reserved for a subsequent chapter. Second, that after having been canvassed, the returns yet gave the State to Hayes, though by somewhat different figures. So the board did not merely add up the vote as shown by the returns before them, but they canvassed those returns; they took such action as brought before them evidence which they believed justified them in altering the returns, amending some by subtractions and changing others by additions; while still others were entirely rejected in toto. Upon this canvass they rendered the pro-Hayes report; and this is the report and canvass that the Republicans sustained, holding that under the law that determination and declaration of the board was within its jurisdiction, that by the law the board was the final, ultimate determinant and declarant of what the vote was and of its result; and that, therefore, the pro-Hayes report was the act of the State.

The record left us in the action of Drew vs. the Board of Canvassers by mandamus, tried in the supreme court of the State before the Commission met, furnishes one of the best sources from which to learn what was done by the pro-Hayes board in its canvass, while it affords also the best opportunity to study the statute. We thus get the interpretation of the local law as given by the highest court of the State; and this interpretation measured by prior local well

settled law, and by the general rule in America, may then be properly valued, which necessarily places a correct estimate upon the construction by the Republicans of the Commission and, of course, upon their decision of the Florida case.

There was practically no difference between the votes cast for the presidential electors and for the State candidates. The same canvass which resulted in a pro-Hayes determination also resulted in a pro-Republican decision for the candidates for State offices. Thus the Republican governor, Stearns, was declared re-elected, and the election of a Republican legislature and other State officers appeared along with the proHayes finding. An interpretation of the acts which led to the Republican decision in the State election, is an interpretation of the acts which led to the pro-Hayes report. The board had no more and no less jurisdiction in the one case than in the other, and as to each performed the same acts; and the facts in the one case, unchanged in any respect whatever, are the facts of the other.

In several aspects of this case it is important to know, as preliminary to the main study, that in such cases as the one instituted and prosecuted by Drew, the supreme court of Florida had undoubted jurisdiction to proceed in mandamus against the board of State canvassers. Jurisdiction is given in such cases by Art. VII., sec. 5, of the constitution of 1868,' then the fundamental law of the State. Long before the HayesTilden contest, the supreme court held that the action of mandamus was the proper and only efficient remedy to enforce the performance of duties by ministerial 1 Poore, Charters and Consts., 353.