State ex rel. Fair v. Adams, 31436

• Citation: 139 So.2d 879
• Decision Date: 11 April 1962
• Docket Number: No. 31436,31436
• Court: United States State Supreme Court of Florida
• Parties: STATE of Florida ex rel. Jim FAIR, Relator, v. Tom ADAMS, as Secretary of State of the State of Florida, Respondent.

Page 879

139 So.2d 879

94 A.L.R.2d 550

STATE of Florida ex rel. Jim FAIR, Relator, v. Tom ADAMS, as Secretary of State of the State of Florida, Respondent.

No. 31436.

Supreme Court of Florida.

April 11, 1962.

Jim Fair, relator, in pro. per.

William J. Roberts, Tallahassee, for respondent.

ROBERTS, Chief Justice.

The instant case is before us upon an original petition for writ of mandamus, wherein the relator, Jim Fair, complains that the respondent, Secretary of State of the State of Florida, has refused to accept and file two sets of candidate qualification papers which relator attempted to file.

From the petition it appears that the relator duly qualified as a candidate in the 1962 Democratic Party primary for the state office of Railroad and Public Utilities Commissioner, Group 2, by filing the requisite qualification papers and fees with the respondent. Without first withdrawing this qualification for candidacy, the relator attempted to qualify in the 1962 Democratic Party primary as a candidate for State Senator of the 34th District, and as a candidate for State Representative, Hillsborough County, Group 1. Respondent refused to accept and file the latter two sets of documents and as a consequence of said refusal this controversy arose.

The controlling question presented herein is, may a person submit his candidacy in the same primary election for more than one office in this state?

An examination of the constitution, as well as the statutory and case law, of Florida reveals no definitive answer to this query. However, Article XVI, Section 15 of the Constitution of the State of Florida, F.S.A., and Section 99.021(1)(f), Florida Statutes, F.S.A., do form a basis for the ultimate conclusion that multiple candidacies are not consistent with the public policy of this state.

Article XVI, Section 15, of the Florida Constitution provides in pertinent part, '* * * no person shall hold, or perform the functions of, more than one office under the government of this State at the same time;'. (Exceptions not here involved.)

Relator agrees that Article XVI, Section 15 of our constitution would prevent him from holding more than one of the offices to which he aspires, nevertheless, he contends that neither the constitution nor the statutory law precludes a man from seeking multiple offices.

In addition to the constitutional prohibition against holding multiple offices in the government of this state, Section 99.021, Florida Statutes, F.S.A., which sets forth the form of oath a candidate must make, provides in part:

'(1) Every candidate for nomination to any office is required to take and subscribe to an oath or affirmation in writing, in which he shall state

* * *

* * *

'(f) That he is qualified under the laws of Florida to hold office for which he desires to be nominated;'.

In his argument before this court, relator contended that if an elector cannot lawfully qualify for a political party's nomination as a candidate to run for more than one office, then it must follow that an elected official cannot qualify for his party's nomination to become a candidate for another office so long as his incumbency continues.

It becomes necessary, in order to point out the fallacy of relator's position, for us to divert our attention, for the moment, from the real question presented herein.

This court held in Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41:

'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. [sic] v. Haskill, 72 Fla. 176, 72 So. 651.' (Emphasis supplied.)

This construction of Section 99.021(1)(f), Florida Statutes, F.S.A., disposes of relator's contention with reference to an incumbent's becoming a candidate for another office, if the term of office which he is filling expires before the term of office, attendant upon the position which he seeks, begins.

The question then arises, can an office holder become a candidate for another office if the 'term' of that office begins before the 'term' of the office which he holds expires?

It is not difficult to answer this query. An incumbent may qualify as a candidate for an office other than the one he is currently holding because he can make a truthful oath as required of him by Section 99.021(1)(f), Florida Statutes, F.S.A., by resigning before entering upon the duties of the office to which he might be elected. He would make only one oath, for he would be seeking only one party nomination and one office. Consequently no confusion would be created in the minds of the electors as would be the case were he soliciting multiple nominations.

It must be borne in mind that we are dealing herein with the right of an elector to qualify for nomination by a political party as its candidate for multiple offices. The pivotal point in the instant suit arises by virtue of the fact that relator wishes to seek multiple nomination for offices and apparently is willing to make oath that he will be qualified to fill all the offices to which he might be elected, knowing full well that he could hold but one of such offices.

It is our opinion that a candidate who can, if nominated and elected, fill but one state office at a time, cannot make a truthful oath on every application to become a candidate for nomination to several state offices to the composite effect that he is qualified to hold them all.

This court cannot sanction any such inconsistent statements. It might be said that relator could fail to take the oath of office in, or repudiate, all but one position to which he had been elected and thus become eligible to fill the one of such offices which he might choose to accept. Such procedure would not, however, render truthful those oaths which were impossible of performance when they were taken. Moreover, they would be misleading to the electors and productive of vain effort and fruitless labor, by supporters and campaign workers.

We believe that the observations and conclusions thus far made and reached herein are sufficient to dispose of relator's specious, although ingenious, argument.

Because of the absence of any constitutional provision, statute or case law in this state dealing directly with the question presented here, we must turn for assistance to the decisions of courts in some of our sister states and consider their conclusions and the reasons given therefor.

The courts of final appellate jurisdiction in the states of New York, Oklahoma and Texas have held that a person may not be a candidate in the same primary election for more than one office.

A brief analysis of such decisions is helpful:

Riley v. Cordell, 1948, 200 Okl. 390, 194 P.2d 857.

Supreme Court of Oklahoma, although finding no statute expressly forbidding an elector from becoming a candidate for more than one office at the same primary election, held that statute requiring elector becoming a candidate for office to file declaration containing stipulation that candidate will accept such nomination and will qualify for office, precluded an elector from becoming a candidate for nomination for Justice of Supreme Court and for United States Senator. The court further held that the filing by the elector of a verified notification and declaration of candidacy, in due form, for nomination for office of U.S. Senator had effect of withdrawing his prior notification and declaration of candidacy for office of Justice of the Supreme Court, and that mandamus would lie to compel recognition by state election board of the second filing.

Burns v. Wiltse, 1951, 303 N.Y. 319, 102 N.E.2d 569.

New York Court of Appeals, although finding no specific constitutional or statutory authority prohibiting or permitting nomination of same person as a candidate for office of District Attorney and County Judge at same election, held that spirit and intent of election law prohibited such dual nomination particularly where candidates may not, if elected, take and hold both offices. The court pointed out that election machinery, which is run at great public expense, is for the purpose of doing useful and not useless things, and therefore an eligible nominee should be one qualified to take and hold office if elected.

Williams v. Huntress, 1954, 153 Tex. 443, 272 S.W.2d 87.

Supreme Court of Texas held that nominee could not be the party candidate for both the County Court of Law and for Judge of the District Court. (Note--Constitution and election laws of state prohibited holding more than one office.)

It is noteworthy that the Supreme Court of Oklahoma, supra, ruled that a candidate might, during the period allowed for qualification, file papers required of him to become a candidate for a party nomination for a different office than the one for which he had previously qualified but that upon the filing of the second application his first qualification would be considered as withdrawn and hence...