THE STATE OF FLORIDA, EX RELATIONE HENRY L. LILIENTHAL, RELATOR,
v.
B. Y. HERNDON, RESPONDENT
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The Florida Supreme Court ordered that Henry L. Lilienthal be declared the rightful Mayor of Sanford after an election in which he and his opponent each received 190 votes, but one ballot cast for Lilienthal was improperly rejected as scratched, and one ballot counted for his opponent was cast by an unqualified voter who had not resided in Sanford for the required six months.
Lilienthal is entitled to the office of Mayor. The respondent's answer failed to constitute any defense, the subsequent election of Herndon does not validate the defective first election, and the improper rejection of Lilienthal's ballot combined with the counting of a vote from an unqualified voter requires that Lilienthal be declared the rightful winner.
“There is nothing in it which constitutes any defence; of course neither the second election nor the good faith of the Inspectors and Canvassers at the first area defence”
Establishes that the respondent's answer provided no valid defense and that a subsequent election cannot cure defects in the first election.
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Join FLexlaw to unlock all legal intelligenceAn election for Mayor of Sanford was held on February 7, 1887, with Lilienthal and George H. Fernald as candidates. The election inspectors rejected o…
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Me. Justice Raitey
delivered the opinion of the court:
An election was held in the city of Sanford on the seventh day of February of the present year for the office of Mayor, and at such election the relator and one Geo.
H. Fernald were voted for. One ballot for relator was not counted by the Inspectors because it appeared upon its face to have been scratched ; (see State ex rel. Lilienthal vs.
W. T. Deane, et al., decided at this term), and the result certified by the Inspectors and City Board of Canvassers was that the relator and Fernald had each received one hundred and ninety votes. Another election for Mayor was held on the 26th day of the same month and the respondent was elected without opposition or protest, and having taken the oath is now acting as Mayor. Relator instituted in this court a proceeding by information in the nature of a quo warranto under the statute. Sec. 2, p. 846, McC.’s Digest. The person who voted one of the ballots cast in favor of Fernald at the first election is alleged by the relator not to have resided in Sanford for the period of six months immediately preceding the election, which was necessary to en title him to vote. Sec. 13, pp. 247, 248, Mc.C.’s Digest. This is not denied by the respondent. The return or answer of the respondent was demurred to and the demurrer sustained, and no leave to amend has been asked. There is nothing in it which constitutes any defence; of course neither the second election nor the good faith of the Inspectors and Canvassers at the first area defence; nor could such Inspectors or Canvassers upon any recanvass inquire into the qualification of any voter at such election. State ex rel. vs. State Board of Canvassers, 16 Fla., 17.
4 rom ene papem uomre us we also feel satisfied of the relator’s title to the office, and judgment will be entered accordingly.