The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1908-10-29
THE OPINION Of
JUDGE HOOKER
What the Florida Primary
Law Provides, According
to Recent Decision.

the supreme court a rev days SluCe
in the Kehoe-Mays case, mention OF
which was made in the Metropolis, is
a subject OF interest throughout Flor
ida and other states as well, since q
fundamental principle of the primary
law was adjudicated by it, says a
special from Tallahassee to the Jack
sonville Metropolis.
The case was brought up from the
Third Congressional district, in which
J. Walter Kehoe contested the nom
ination Of Dannittee H. Mays. In the
returns made to the congressional
committee Mays had a majority OF
40 votes over Kehoe. Contest was
made by Kehoe, charging iilegality in
four counties. and upon these charges
the congressional committee, upon Il
vote of s to 6, declared Kehoe the
nominee. Mays appealed to the cir
cult court for mandamus to compel
the district committee to canvass the
votes as returned by the several
county committees. The court did is
sue mandamus and thereupon the
committee reconvened and declared
Mays the nominee.
The situation was such as to be ex
ceedingly confusing and hazardous to
Democratic supremacy in the third
district. With both names on the
ticket the Democratic vote would
have been seriously divided. for per
sonal feeling had been excited to a
nigh pitch.
May Help Solve the Problem.
The decision of the supreme courS
upholding the authority of the lower
court to interfere in the premises,
and sustaining the contention OF
Mays, will assist in solving a prob
lem that promised to be perp1exing
The decision was written by Justice
Hooker and is in part as follows:
Our opinion upon the point under
discussion is that the rights created
under our primary law are such that
when violated the courts may be re-
sorted TO FOR their redress and that
the writ of mandamus may be used
to compel the performance of the dur
ties WHICH are imposed by. the statute
upon the members OF the standing or
congressional committee of a con-
gressional district if those duties are
ministerial and not judicial. Section
30, Article 5 Of our constitution, as
amended in 1898, reads as follows:
No courts other than herein speci-
fed shall be established in this state,
any railroad commission with judic-
ial powers in all matters connected
with the functions of their office
"As there is no provision of the
authorizing the legisla-
ture to confer judicial powers upon
those who hold, conduct or canvass.
elections, primary or otherwise, the
powers conferred must necessarily
be ministerial in their nature. 1t is
clear from the cases cited that a
canvassing board can have no exclu
sive and ultimate power to pass upon
the question whether a vote cast at
an election was legally cast, for that
is a judicial question. We must,
therefore, construe the primary cleo
ton laws in the light of these de.
cisions.
1T is contended by plaintiffs in er.
ror that this view would necessarily
result in our holding the primary
election laws to be unconstitutional
because, according to the contention,
judicial powers, the power to pass
upon the legality of votes cast al an
election and the making OF decisions
of the county and congressional com
mittees final upon these and other
questions would bring the whole law
in conflict with the constitution, as it
cannot be concluded the legislature
would have passed the primary stat
utes without these provisions. 1t is
our duty to hold the statutes to be
constitutional if We can do so with
out violating the plain intent of the
legislature.
1--WE think it plain that the section
of the general statutes provides the
NIL 10.
which the right of a person TO vote at
a primary election can be questioned
1t is to be done at the time when
such person offers to vote. The in
spectors then hear the evidence and
then determine for or against the
right of persons offering to vote as
the evidence shall necessarily war
rant. This is a necessary ministe-
rial or quasi judicial power, without
which no orderly election can be
held"
Referring to the provision of the
statute in reference to the challenge
of voters. the court says 1.-The sec
ton then provides that the committee
shall carefully examine the returns
and reports so made, and thereupon
decide who has been nominated. We
do not tlink that this section author
ICES the committee to speak or take
any evidence outside of the returns
and reports so far as the legality of
any vote is concerned. for there is no
authority given them to summon wit
nesses or go into an investigation of
such a question. There is no ex-
press power given and an implied
power is negatiyed by the fact that
they are only authorized to review
the findings and decisions of the
county committee"
Construction of the Word Final"
In the construction of the word
final of the act relating TO the du.
ties of the committee the court deems
II unnecessary to dwell, saying only:
The word may very well be un-
derstood as meaning that when a
matter has been decided by a com
mittee tnaI decision is to be final as
TO the committee: thai there is to be
no procrastination and delays, such
as are incident to rehearings and re-
1t seems 10 US that
such a view is essential to the proper
and expeditions operations of the pri-
mary law, for If a primary election is
called "a a sufficiently early date, as
it ShnuId ha aD,j tho commits 0oman