State Ex Rel. Whidden v. Janes

170 So. 168, 125 Fla. 839

Opinion

Per Curiam.

— The.writ of error is from judgment on demurrer dismissing alternative writ of mandamus. The alternative writ of mandamus commanded certain election precinct officers, that is, inspectors and clerks of election precincts, to recount the ballots cast for certain candidates for sheriff in the primary election of June 2, 1936.

And, the writ further ’commanded F. G. Janes, Jr., as County Judge of the County of Hardee, and Ruth L. Wallace as Supervisor of Registration of said county, and W. C. King as chairman of the Board of County Commissioners, constituting the Canvassing Board of Hardee County to “supervise said several sets of inspectors and clerks while making such recount and recanvass.” -This was a command to these officers to perform a function which was not their duty under the law to perform and, therefore, one which they could not be compelled to perform by writ of mandamus. So. the alternative writ was too broad and there was no authority for-the issuance of a peremptory, writ following the alternative writ in this regard. This point was specifically raised by the demurrer.

The order sustaining demurrer was without error.

Judgment on demurrer was without error.

The judgment is affirmed.

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