[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The law does not give the Secretary of State any power or authority to inquire into or pass upon the eligibility of a candidate to hold office for the nomination for which he is running. It merely provides that the candidate shall file the sworn statement in the form provided by statute, together with his receipt for the committee assessment, with the Secretary of State, and pay his filing fee to that officer, not less than thirty days previous to the day of the primary election. (Secs. 326-329, Rev. Gen. Stats.) And when he has done this the statute provides that he
shall then be entitled "to have his name printed on the official primary election ballot," (Sec. 331, Rev. Gen. Stats.) No discretion is vested in the Secretary of State. If the simple requirements plainly provided by the statute are complied with by the candidate, as was done here, such State official should, as provided by the statute, receive for filing the sworn statement and receipt, and accept the proper filing fee.
So, on first approach, it would appear that the relator is entitled to the writ of mandamus to require the Secretary of State to accept his filing fee, so that his name may go on the primary election ballot, regardless of whether he is or is not, constitutionally entitled to be elected to the office for which he offers. But just at this point, another principle comes into operation, which requires some examination. In order to maintain the right to the extraordinary writ of mandamus, the relator must show something more than a duty on the part of the respondent. While his statutory duty did not require it, yet the Secretary of State deemed it his duty to refuse to accept such filing fee from the relator on the ground, as set forth in his reply to the alternative writ, that because the relator was a member of the Legislature of 1925 which increased the salary of the office to which the relator aspires, he is, under Section 5 of Article III of the Constitution, ineligible to be elected to that office. If that be true, the relator is not entitled to mandamus, because the issuance of the writ would be nugatory, unavailing, and without benefit to him. To warrant the peremptory writ, it must appear, not only that there is a duty resting upon the respondent, but also that the relator has a clear legal right to enforce the performance of that duty. State ex rel. Ellis v. A. C. L. R. Co., 53 Fla. 650, 44 So.2d 213; 12 Ann. Cases 359; 13 L. R. A., U.S. 320.
It is a well-established fundamental principle of the law
of mandamus that "the writ will never be granted in cases when, if issued, it would prove unavailing, or when compliance with it would be nugatory in its effects, or would be without beneficial results and fruitless to the relator." This is the language of Mr. Justice TAYLOR, and the holding of this Court, in State ex rel. Kehoe v. McRae, 49 Fla. 389, 38 So.2d 605, citing State ex rel. Vereen v. Commissioners, 27 Fla. 438,8 So.2d 749; 13 Encyc. Pldg. Prac. 493. See also Pennock v. State, 61 Fla. 383, 54 So.2d 1004; State v. Crawford, 72 Fla. 254, 73 So.2d 588; State v. Crawford, 90 Fla. 264, 105 So.2d 446; 38 C. J. 552-3.
It thus appears that we must consider the question whether the issuance of the peremptory writ would be unavailing, nugatory and without beneficial results to the relator, and manifestly the determination of that question, on the record before us, hinges upon the question of the relator's eligibility to be elected to the office for which he seeks to qualify. If in reply to this it should be said that the relator is not here seeking to qualify for the election, but only for the June primary which is to select the nominee of the Democratic party who will offer as the candidate of that party for election to the Governorship in the November election, the answer is twofold. First, the nomination would be futile and fruitless to the nominee if he could not thereafter lawfully be elected. Second, under our statutes, qualification for candidacy for the nomination is an essential step in order to qualify the candidate for the subsequent election. Under Section 326, Rev. Gen. Stats., because of the nature of the oath required to be taken by a candidate in the primary election, the qualifications of a candidate in the primary must be the same as such candidate would have to have in order to be voted on in the general election, so that if a person is ineligible to be elected to an office in the general election he is ineligible to become a candidate in the primary election. In
State ex rel. Merrill v. Gerow, 79 Fla. 804, 85 So.2d 144, it was held that: "Primary election laws and laws governing general elections are so interwoven that together they comprise the election machinery of the State, and the rights, duties, privileges and powers granted or imposed by one are equivalent to those granted or imposed by the other in so far as the processes of the courts may be invoked to enforce or protect them." The statutory requirement that a candidate shall make oath "that he is qualified under the Constitution and laws of Florida to hold the office for which he desires to be nominated," has reference to qualifications applicable when elected and the term of office begins. State ex rel. v. Haskill, 72 Fla. 176.
Coming then, as "we must, to the question of the relator's eligibility vel non to be elected to the office of Governor, this obviously depends upon the construction which should be placed upon Section 5 of Article III of the Constitution, the language of which is:
"No Senator or Member of the House of Representatives shall, during the time for which he was elected, be appointed or elected to any civil office under the Constitution of this State, that has been created, or the emoluments whereof shall have been increased, during such time."
It appears from the pleadings that the relator, Senator Taylor, was elected as a Senator on November 4th, 1924, and that the legislature of 1925, of which he was a member, provided for an increase in the Governor's salary. He seeks to qualify as a candidate for the nomination as the Democratic party's candidate for Governor in the primary election to be held on June 5th, 1928, so that, if nominated, he may be qualified as the party's nominee for the Governorship in the general election to be held on November 6th, 1928.
Under the constitutional provision, he cannot be elected to the office of Governor during the time or term for which
he was elected Senator. Section 2 of Article VII of the Constitution provides that members of the Senate "shall be elected for terms of four years." If this means calendar years, then the relator's term as Senator would expire four years from November 4th, 1924, that is, on November 4th, 1928, two days before the general election, and thus he would undoubtedly be eligible to be elected as Governor on November 6th, 1928. If it means legislative years, the time for which he was elected Senator would expire at the general election on November 6th, 1928.
Free access — add to your briefcase to read the full text and ask questions with AI
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The law does not give the Secretary of State any power or authority to inquire into or pass upon the eligibility of a candidate to hold office for the nomination for which he is running. It merely provides that the candidate shall file the sworn statement in the form provided by statute, together with his receipt for the committee assessment, with the Secretary of State, and pay his filing fee to that officer, not less than thirty days previous to the day of the primary election. (Secs. 326-329, Rev. Gen. Stats.) And when he has done this the statute provides that he
shall then be entitled "to have his name printed on the official primary election ballot," (Sec. 331, Rev. Gen. Stats.) No discretion is vested in the Secretary of State. If the simple requirements plainly provided by the statute are complied with by the candidate, as was done here, such State official should, as provided by the statute, receive for filing the sworn statement and receipt, and accept the proper filing fee.
So, on first approach, it would appear that the relator is entitled to the writ of mandamus to require the Secretary of State to accept his filing fee, so that his name may go on the primary election ballot, regardless of whether he is or is not, constitutionally entitled to be elected to the office for which he offers. But just at this point, another principle comes into operation, which requires some examination. In order to maintain the right to the extraordinary writ of mandamus, the relator must show something more than a duty on the part of the respondent. While his statutory duty did not require it, yet the Secretary of State deemed it his duty to refuse to accept such filing fee from the relator on the ground, as set forth in his reply to the alternative writ, that because the relator was a member of the Legislature of 1925 which increased the salary of the office to which the relator aspires, he is, under Section 5 of Article III of the Constitution, ineligible to be elected to that office. If that be true, the relator is not entitled to mandamus, because the issuance of the writ would be nugatory, unavailing, and without benefit to him. To warrant the peremptory writ, it must appear, not only that there is a duty resting upon the respondent, but also that the relator has a clear legal right to enforce the performance of that duty. State ex rel. Ellis v. A. C. L. R. Co., 53 Fla. 650, 44 So.2d 213; 12 Ann. Cases 359; 13 L. R. A., U.S. 320.
It is a well-established fundamental principle of the law
of mandamus that "the writ will never be granted in cases when, if issued, it would prove unavailing, or when compliance with it would be nugatory in its effects, or would be without beneficial results and fruitless to the relator." This is the language of Mr. Justice TAYLOR, and the holding of this Court, in State ex rel. Kehoe v. McRae, 49 Fla. 389, 38 So.2d 605, citing State ex rel. Vereen v. Commissioners, 27 Fla. 438,8 So.2d 749; 13 Encyc. Pldg. Prac. 493. See also Pennock v. State, 61 Fla. 383, 54 So.2d 1004; State v. Crawford, 72 Fla. 254, 73 So.2d 588; State v. Crawford, 90 Fla. 264, 105 So.2d 446; 38 C. J. 552-3.
It thus appears that we must consider the question whether the issuance of the peremptory writ would be unavailing, nugatory and without beneficial results to the relator, and manifestly the determination of that question, on the record before us, hinges upon the question of the relator's eligibility to be elected to the office for which he seeks to qualify. If in reply to this it should be said that the relator is not here seeking to qualify for the election, but only for the June primary which is to select the nominee of the Democratic party who will offer as the candidate of that party for election to the Governorship in the November election, the answer is twofold. First, the nomination would be futile and fruitless to the nominee if he could not thereafter lawfully be elected. Second, under our statutes, qualification for candidacy for the nomination is an essential step in order to qualify the candidate for the subsequent election. Under Section 326, Rev. Gen. Stats., because of the nature of the oath required to be taken by a candidate in the primary election, the qualifications of a candidate in the primary must be the same as such candidate would have to have in order to be voted on in the general election, so that if a person is ineligible to be elected to an office in the general election he is ineligible to become a candidate in the primary election. In
State ex rel. Merrill v. Gerow, 79 Fla. 804, 85 So.2d 144, it was held that: "Primary election laws and laws governing general elections are so interwoven that together they comprise the election machinery of the State, and the rights, duties, privileges and powers granted or imposed by one are equivalent to those granted or imposed by the other in so far as the processes of the courts may be invoked to enforce or protect them." The statutory requirement that a candidate shall make oath "that he is qualified under the Constitution and laws of Florida to hold the office for which he desires to be nominated," has reference to qualifications applicable when elected and the term of office begins. State ex rel. v. Haskill, 72 Fla. 176.
Coming then, as "we must, to the question of the relator's eligibility vel non to be elected to the office of Governor, this obviously depends upon the construction which should be placed upon Section 5 of Article III of the Constitution, the language of which is:
"No Senator or Member of the House of Representatives shall, during the time for which he was elected, be appointed or elected to any civil office under the Constitution of this State, that has been created, or the emoluments whereof shall have been increased, during such time."
It appears from the pleadings that the relator, Senator Taylor, was elected as a Senator on November 4th, 1924, and that the legislature of 1925, of which he was a member, provided for an increase in the Governor's salary. He seeks to qualify as a candidate for the nomination as the Democratic party's candidate for Governor in the primary election to be held on June 5th, 1928, so that, if nominated, he may be qualified as the party's nominee for the Governorship in the general election to be held on November 6th, 1928.
Under the constitutional provision, he cannot be elected to the office of Governor during the time or term for which
he was elected Senator. Section 2 of Article VII of the Constitution provides that members of the Senate "shall be elected for terms of four years." If this means calendar years, then the relator's term as Senator would expire four years from November 4th, 1924, that is, on November 4th, 1928, two days before the general election, and thus he would undoubtedly be eligible to be elected as Governor on November 6th, 1928. If it means legislative years, the time for which he was elected Senator would expire at the general election on November 6th, 1928. If he could not be said to have been elected Governor until the last ballot is cast in such general election, then instantly upon the casting of such last ballot his term as Senator, on this basis, would have expired. So, it would appear that on the basis of legislative years the end of his term as Senator would expire at the instant of his election as Governor. Thus he would not be elected as Governor during the term to which he had been elected as Senator. If his election as Governor takes place immediately at the end of his term as Senator, how could it be said that he was elected Governor during his term as Senator? One begins as the other ends. Surely it was not the intention of the Constitution to disqualify a candidate merely because this ending and beginning should occur at practically the same instant of time. It would thus appear that, looked at from either viewpoint, the relator is eligible under the Constitution to be qualified as a candidate for nomination to the office of Governor, and that the peremptory writ of mandamus should issue as prayed for by him. If eligible the relator is certainly entitled to the writ, for he has no other adequate remedy.
The provision of Section 2, Article VII of the State Constitution that "the members of the Senate shall be elected for terms of four years," should be interpreted in connection with the provisions of Sections 1 and 2, Article VII,
that the terms of Senators "shall expire at the election for Senators," and "shall expire on the first Tuesday after the first Monday in November" when an "election for Senators" is held. When so considered the "terms of four years" for Senators begin on the day of their election for four years and expire on
the day of the "election for Senators" four years thereafter.
The first Tuesday after the first Monday in November is the general election day fixed by the Constitution, and such day does not come on the same day of the month every year. Four calendar years from a general election day would sometimes end before the corresponding election day and at other times after the election day, which if controlling would cause in the one case an interregnum and in the other an overlapping of terms that are intended to be successive and continuous. Necessarily the "terms of four years" are not intended to be for four calendar years, but the intent of the original provision is that such terms shall begin on the election day and shall end on the election day four years thereafter.
Section 2, Article IV, provides that the Governor "shall hold his office for four years from the time of his installation," the first election to be in 1888, and that "the term of office of the Governor then elected shall begin on the first Tuesday after the first Monday in January after his election." Under these provisions each succeeding Governor is installed on the first Tuesday after the first Monday in January after his election, even though the term of the preceding Governor is thereby made several days more or less than "four years from the time of this installation." The same is true of the administrative officers of the executive department under Sections 20 and 28, Article IV, and of county officers under Section 14 of Article XVIII.
Under Sections 1 and 2 of Article VII of the State Constitution
the term of office of a State Senator elected for four years at the general election held "on the first Tuesday after the first Monday in November" 1924, expires "at the election for Senators" to be held "on the first Tuesday after the first Monday in November" 1928; therefor "the time for which he was elected" is from his election on the day of the general election in November, 1924, to the election of a successor on the day of the general election in 1928. Of course the term of his successor must begin at the same time the present term expires. If the term of the successor begins at his election at the close of the polls or at any other hour on the day of the election, the term of the present Senator ends at the same instant, consequently the election in 1928 is not within the meaning of Section 5, Article III of the Constitution, "during the time for which he was elected," but at the end of such time; and the Senator who was elected in 1924 for four years may at the general election in 1928 be elected to a civil office created or the emoluments of which had been increased during the four years, without violating Section 5, of Article III of the Constitution. If a State Senator is elected to another office at the same time that his term as Senator expires, such election would be at the end of his term and not "during the time for which he was elected" Senator within the meaning and intent of Section 5, Article III of the Constitution. Any other interpretation would make a Senator elected for four years ineligible to election to a civil office which has been created or the emoluments thereof increased during his term, not only "during the time for which he was elected" as Senator, as stated in the Constitution, but also for at least two years thereafter, which clearly is not the intent of the organic provision. In this State general elections are held only every two years; and the special elections of officers are held only to fill vacancies in the office of Congressman or
members of the legislature, or when there has been no choice of an officer who should have been elected at a general election. See Sec. 219, Rev. Gen. Stats.
Ordered that the peremptory writ of mandamus be issued in accordance with the prayer of relator's petition.
WHITFIELD, TERRELL AND STRUM, J. J., concur.
ELLIS, C. J., AND BUFORD, J., file a separate opinion.