State Ex Rel. Titus v. Peacock

170 So. 127, 125 Fla. 452

• Court: Supreme Court of Florida
• Decided: October 14, 1936
• Status: Published

Opinion

Per Curiam.

— The return of respondent, J. E. Peacock, avers that it is impossible for the respondents, as a County Canvassing Board, to now identify and undertake to subtract from the results of the completed canvass of votes cast for the office of Justice of the Peace of the Eighth Justice District of Volusia County the unchallenged out of State absentee ballots that are alleged to have been unlawfully cast and counted under Chapter 16986, Acts of 1935, for the relator and his opponent for the Democratic nomination to the office of Justice of Peace as commanded by the alternative writ, even if said Chapter 17986 should be adjudged unconstitutional as claimed in this proceeding.

Such return presents a good defense inasmuch as inability of respondents to comply with the commands of an alternative writ of mandamus occasioned by happenings over which they presently have no control, operates as a lawful justification for failure to comply with its commands. County Com’rs of Duval County v. City of Jacksonville, 36 Fla. 196, 18 Sou. Rep. 339, 29 L. R. A. 416.

The return is adjudged sufficient and relator required to join issue thereon, in default of which the alternative writ will be quashed and the proceeding dismissed.

Whitfield, C. J., and Ellis, Terrell, Brown, Buford and Davis, J. J., concur.