Davis v. Crawford
| Decision Date | 09 March 1928 |
| Citation | 95 Fla. 438,116 So. 41 |
| Parties | DAVIS, Atty. Gen., ex rel. TAYLOR v. CRAWFORD, Secretary of State. |
| Court | Florida Supreme Court |
En Banc.
Original proceeding by Fred H. Davis, as Attorney General, on the relation of John S. Taylor, for mandamus to require H. Clay Crawford, as Secretary of State, to accept relator's filing fee so that his name may go on the primary ballot.
Writ granted.
Syllabus by the Court
Affecting right to mandamus, secretary of state has ministerial duty to receive filing fee from candidate for state office and file sworn statement and receipt for committee assessment pursuant to statute (Rev. Gen. St. 1920, §§ 326-329). If a candidate for a state office offers for filing the sworn statement and receipt for the committee assessment and tenders the proper filing fee, within the time and in the form and manner provided by the statutes (sections 326-329, Rev. Gen Stats.), it becomes the ministerial duty of the secretary of state to receive and file such sworn statement and receipt and accept such filing fee.
One seeking mandamus must show respondent has duty, and that relator has clear legal right to enforce performance thereof. To maintain the right to the extraordinary writ of mandamus the relator must show, not only a duty on the part of the respondent, but also that the relator has a clear legal right to enforce the performance of that duty.
Mandamus which would prove unavailing, or be without beneficial results, or when compliance would be nugatory in effects will not be granted. 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.
Under statutes, qualification for candidacy in primary is essential step to qualify candidate for general election; qualifications of candidate in primary are same as those he must possess in general election; person ineligible to be elected to office in general election is ineligible to become candidate therefor in primary (Rev. Gen. St. 1920, § 326). Under the statutes, qualification for candidacy for nomination in the primary is an essential step in order to qualify the candidate for the subsequent general election, and, under section 326 Revised Gen. Stats., the qualifications of a candidate in the primary are the same as such candidate must possess 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 for such office in the primary election.
Requirement that candidate shall take oath that he is qualified to hold office refers to qualifications applicable when term of office begins (Rev. Gen. St. 1920, § 326). 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.
Person constitutiqnally ineligible to be elected in ensuing general election for office has no right to qualify as candidate in primary; person constitutionally ineligible to office in ensuing general election may not by mandamus compel election officials to qualify or attempt to qualify him as candidate in primary (Rev. Gen. St. 1920, § 326). If a person attempting to take the steps required by statute to qualify as a candidate in the primary is constitutionally ineligible to be elected in the ensuing general election to the office for which he offers, he has no lawful right to qualify as a candidate in the primary, and hence no lawful right by mandamus to compel election officials to qualify, or to attempt to qualify, him as a candidate in such primary.
Prospective candidate in primary, qualified for state office, may by mandamus require secretary of state to accept filing fee. If a person otherwise qualified is constitutionally eligible to be elected to the state office, for which he offers and presents to the secretary of state the sworn statement and receipt for committee assessment, and tenders the filing fee as required by the statutes, and the secretary of state refuses to accept such filing fee, such person is entitled to the writ of mandamus to enforce the ministerial duty on the part of such official to accept such filing fee; there being no other adequate remedy.
State senator, member of Legislature in 1925 which increased Governor's salary held not ineligible to be elected Governor in election held November 6, 1928 (Const. art. 3, § 5, art. 4, § 2, and art. 7, §§ 1, 2). A state senator, elected in the general election of November 4, 1924, and who was a member of the Legislature of 1925 which provided for an increase in the salary of the office of Governor, is not ineligible, under section 5 of article 3 of the Constitution, to be elected to the office of Governor in the general election to be held on the first Tuesday after the first Monday in November, A. D. 1928 (i. e., November 6, 1928); for in such case, if successful, he would not be elected to such office 'during the time for which he was elected' as a senaor.
M. A. McMullen, of Clearwater, and W. C. Hodges, of Tallahassee, for relator.
Fred H. Davis, Atty. Gen., for respondent.
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 30 days previous to the day of the primary election. Sections 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.' Section 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 3 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. 213, 13 L. R. A. (N. S.) 320, 12 Ann. Cas. 359.
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. 605, 6 Ann. Cas. 580, citing State ex rel. Vereen v. Commissioners, 27 Fla. 438, 8 So. 749; 13 Encyc. Pldg. & Prac. 493. See, also, Pennock v. State, 61 Fla. 383, 54 So. 1004; State ex rel. Catts v. Crawford, 72 Fla. 254, 73 So. 588; State ex rel. American Bakeries v. Crawford, 90 Fla. 264, 105 So. 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...
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State ex rel. West v. Gray
...can this language be said to prevent a candidate from seeking nomination to office, and if the majority opinion in Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41, must be interpreted to the contrary, I am to that extent in disagreement with it. The timehonored statement that the ......
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State ex rel. West v. Gray
...can this language be said to prevent a candidate from seeking nomination to office, and if the majority opinion in Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41, must be interpreted to the contrary, I am to that extent in disagreement with it. The time-honored statement that the......
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