
    State, ex rel. Henry T. Titus, v. J. E. Peacock, as County Judge of Volusia County, O. G. Sage, as Supervisor of Registration of Volusia County, and E. A. Latham, as Chairman of the Board of County Commissioners of Volusia County, as and constituting the County Canvassing Board of Volusia County.
    170 So. 127.
    En Banc.
    Opinion Filed October 14, 1936.
    
      Horace D. Riegle, for Relator;
    
      Scarlett & Fuich and Horn & Ossinsky, for Respondents.
   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.  