The State vs. Johnson-Opinion of Court.

so; but, being taken from a final decree, of course can, as a supersedeas, accomplish little more than to stay execution; but taken from an interlocutory order, is not and should not be in all cases necessarily so confined or limited. The whole benefit and primary object of the statute of 1852 would entirely fail under such a limiting construction.

The order for a stay of proceedings may be extensive enough to reach and affect all the proceedings affecting those appealed from, and the precept or process in pursuance of the order may be issued from the office of the Clerk of the Court, where the Justice making the order sits as Judge, under the seal of the court, for this course secures the enforcing of the statute. When he so orders, and it issues out of the Clerk's office with the seal of the court attached, it becomes the process or writ of the court, and as such must be respected and obeyed. If there is any error in it, disobedience or defiance is not the proper way to correct the error. No officer of this or of the Circuit Court whose acts it purports to control or direct, can with impunity disregard or disobey its commands.

If this court corruptly errs, the Legislature that represents the highest power, the people, who have prescribed what their Legislature as well as their courts may do, may apply the corrective.

The only question now here is, Has the writ of supersedeas been obeyed? The Receiver answers substantially that he is not guilty of contempt in not obeying it, because he says that the writ was not ordered and issued by lawful authority. This is no answer, except as an avowal of disregard, and coming from a subordinate officer of the Circuit Court is, to say the least, very improper.

Whether that writ is regular or not, is no concern of his any more than the validity of an order would be to a master or of any writ to sheriff. It concerns the party to the suit, who has had abundant time and opportunity to raise that question before this court by motion, and has not done

So.

Bloxham vs. Gibbs-Syllabus.

The Receiver admits that he has not obeyed the writ, and presents a question which for him is out of place, and which is no excuse. Thus the affidavit of non-obedience, upon which the attachment was ordered, is fully sustained and proved of record to be true. There is nothing left for this court to do but to punish the contempt of its process and enforce obedience thereto, or else continue to be contemned and despised. There is no cause or reason for even some leniency. This is the first time in the history of Florida that the process of this tribunal has been by an officer of a court intentionally disregarded and the act deliberately avowed by him in open court. It is to be hoped that it will be the last. Whatever some men may choose to think of others as men, the tribunal must be everywhere respected by at least implicit obedience to its process. Without this, the fabric of jurisprudence, erected by the experience of ages, the best constituted safe-guard of human rights, must fall. Great, beneficial and beautiful as it is, it is a delicate structure, and cannot maintain its usefulness under frequent shocks of disrespect. It has its enemies, as is patent in this case, so also has everything that is beautiful and good.

THE STATE OF FLORIDA ex rel. WILLIAM D. BLOXHAM VS. JONATHAN C. GIBBS, SECRETARY OF STATE, et al.

1. This Court has the power to grant a writ of mandamus directing the Board of State Canvassers to re-assemble and complete a canvass of the returns of votes cast at a State election where they have neglected to make a complete canvass of the returns in their possession.

2. The object of the law creating a Board of Canvassers of election returns is to ascertain from the returns the whole number of votes cast,

Bloxham vs. Gibbs-Statement of Case.

3.

and to determine therefrom and certify the result of the election. They are required by law to meet at a given day for this purpose, and may adjourn from day to day until their duties are completed; and in case legal returns are received by them at any time before they complete the canvass, which would have been counted if received by the day appointed by law, it is their duty to include them in the canvass and certificate, and if they refuse, they may be required by the writ of mandamus to complete the canvass of all the returns received, and to certify the result according to law.

A peremptory mandamus will not be granted upon the return of an alternative writ, unless the respondents may be required to do all that is required by the alternative writ, and therefore where the alternative writ required all the members of a Board of Canvassers to canvass the returns and declare the result of an election, and after that, that one of them in another official capacity should record the proceedings of the Board, and issue a certificate thereon, the peremptory writ was refused: for, until an officer shall have neglected or refused to perform a duty, he cannot be proceeded against by this writ, and the officer who may be required to give a certificate of the proceedings of a Board cannot be so required until the Board shall have acted.

4. An alternative writ of mandamus may be amended.

5.

6.

An injunction, restraining a Board of Canvassers from proceeding to canvass and certify the result of an election until the further order of the Judge granting the same, where the statute requires the Board to proceed by a certain day, is unauthorized.

Pending the proceedings by mandamus against a Board of Canvassers, the Legislature repealed the law creating such Board, without saving proceedings or duties required by law to be performed by them and uncompleted: Held, That the power of the Board to proceed was gone, and therefore the proceedings against them were dismissed.

MANDAMUS.

Upon petition filed by William D. Bloxham, on the 10th day of January, A. D. 1871, an alternative writ of mandamus to the Secretary of State, Comptroller, and Attorney General of the State, members of the Board of Canvassers of general elections in Florida, was awarded. The alternative writ, which states the case made by the petition of the relator, is as follows:

State ex rel. Bloxham vs. Board State Canvassers-Statement of Case

The State of Florida to Jonathan C. Gibbs, Secretary of State, Sherman Conant, Attorney General, and Robert H. Gamble, Comptroller, Members of the Board of Canvassers of Florida, and to every of them—Greeting:

Whereas, it has been suggested to us that an election was held in the several counties of this State on the 8th day of November last, for the election of one Representative in Congress, of a Lieutenant-Governor of the State, and of Senators and Members of the Assembly of the Legislature of Florida, said election being held in pursuance of law and of Executive proclamation; and that at the said election. William D. Bloxham, who was and is by the Constitution. of this State eligible to and qualified to hold the said office of Lieutenant-Governor, was a candidate to be voted for by the voters of this State to fill said office; and that besides himself, one Samuel T. Day, was also at said election a candidate for said office; and that other than the said Bloxham and the said Day, there was and were no candidate or candidates for the same.

That by the returns of the said election received at the office of the Secretary of State, and now on file in said office, the whole number of votes cast at the said election for the said Bloxham, was thirteen thousand four hundred and sixtytwo (13,462) votes, and the whole number of votes cast for the said Day, was thirteen thousand three hundred and ninety-eight (13,398) votes.

That on the 29th day of November last, Jonathan C. Gibbs, Secretary of State, Almon R. Meek, then Attorney General, and Robert H. Gamble. Comptroller, met and organized in the office of the said Secretary as a Board of Canvassers of the State, to canvass the elections returns from the several counties of the State, and determine who had been elected by the highest number of votes, as shown by the said returns, to the several officers above mentioned. That it then and there appeared from the statements of

State ex rel. Bloxham vs. Board State Canvassers-Statement of Case

the said Gibbs, Secretary of State aforesaid, that no election returns had been received from divers of the counties of the

State up to that time. That among the counties from which the said Gibbs then reported that no election returns had then been received at the office of the said Secretary, were the counties of Brevard, Dade, Manatee and Monroe. That the time given by law for the reception of the election returns from the said counties above mentioned had not elapsed at the time of the meeting of the said Board. That a majority of the votes, in the aggregate, of the said counties had been cast for the said Bloxham; and that he had reason to believe, and did believe, that by the time limited in law for the forwarding and reception of the returns at the Secretary of State's office, of the returns from the said counties above named, the returns from all the other counties reported by the said Gibbs, as not having been then received, could be and would be forwarded to and received at the said office of the Secretary of State. That the returns from the counties, whose returns the said Gibbs then reported to said Board had not been received, were necessary for an authentic determination of the result of the said election. That in the absence of these returns, the relator had reason to believe it would be made to appear by the said Board of Canvassers that a majority of the votes cast by the qualified voters of the State, at the said election, had been cast for the said Day, whereas, in truth and in fact, as the relator had reason to believe, and did and doth believe, a majority of said votes were cast for himself.

That a major portion of the members of said Board of Canvassers did then and there show what the relator believed to be a manifest purpose and determination to proceed forthwith to complete, conclude and finish their said canvass, without waiting, as it was their duty to do, for the forwarding and reception of the said election returns from the said counties of Brevard, Dade, Manatee and Monroe; and without waiting for the returns from the counties of