State Ex Rel. Vining v. Gray

PER CURIAM: This cause is before us on petition for alternative writ of mandamus whereby it is sought by relator to have this Court enter its judgment requiring R. A. Gray as Secretary of State to direct the election officials of the Thirteenth Senatorial District to place the name of the relator on the Democratic primary election ballots to be used in the primary election of May 2nd 1944, in said District as a candidate for the office of state senator when one D. C. Coleman had theretofore qualified as a candidate for such office subject to the action of the Democratic primary election. The petition shows that relator waited until after 12:00 o’clock noon on Tuesday the first day of February, 1944, before starting or initiating the transportation of his application, oath of qualification and money required to pay fees for qualification as a candidate for such office to the Secretary of State at Tallahassee. The petition also shows that relator then used what he thought was, and probably was, the fastest available method to have such documents transported to Tallahassee and to the office of the Secretary of State. It is also shown that had the transportation company to which the documents were delivered for transportation, used the maximum of diligence .in and about such transportation, it could have delivered the said documents to relator’s special agent at the air port in Tallahassee who could and would have delivered the said documents to the office of the Secretary of State in Tallahassee before 12:00 o’clock midnight February 1, 1944. *257 Thus, it is shown that relator just took the risk of waiting until too late for starting the necessary documents on the way to the office of the Secretary of State, with the result that such documents reached the Secretary of State at his home after 1:00 o’clock a. m. February 2, 1944, and because of such delivery after the first day of February had expired the Secretary of State declined to enter and certify relator’s name as a candidate for the office under consideration. • Section 1 of Chapter 21851, Acts of 1943, provides: “Section 1. Nominations for election to the office of State Senator shall be had by a political party in a primary election pursuant to law. ■ Candidates for nomination for election to such office in a primary election shall be required to file their sworn statement and pay their.filing fee to the Secretary of State not later than the first day of February previous to the first primary election, and to pay or file receipt with the Secretary of State, in like manner as other candidates, for their party committee assessment, if any has been levied, not later than March thirty-first following.” Sections 102.31, 102.32, 102.33 and 102.34 F.S. 1941, (same F.S.A.) provide as follows: “102.31. Filing fee of candidate.— “Each candidate for nomination for any office herein provided for, shall be required to pay a filing fee at the time of filing the sworn statement provided for in No. 102.29. The amount of said filing fee shall be three per cent of the annual salary or compensation of the office sought by, the candidate; provided, that no filing fee shall be required of any candidate for any office to the holder of which no salary or compensation is required to be paid. “102.32. Certain Candidate’s sworn statement, receipts and filing fee.— “Each candidate for nomination, except Justices of the Supreme Court and any other class of officers expressly provided for by law, for an office to be voted for by the electors of more than one county shall file his sworn statement and receipt for committee assessment if any has been levied and paid to the proper committee, and pay his filing fee as herein required to the Secretary of State not less than forty-five *258 days previous to the day of the first primary election;, provided that any candidate may pay such assessment as has been levied by the committee to the Secretary of State, who may accept the same result and remit to the appropriate committee entitled thereto. Candidates for nomination to the office of Justice of the Supreme Court shall be required to file their sworn statement and pay ]their filing fee to the Secretary of State not later than the first day of February previous to the first primary election, and to pay or file' receipt in like manner as other candidates for their party committee assessment, if any has been levied not later than March thirty-first following. “102.33. County office candidate’s sworn statement, receipt and filing fee. — Each candidate for nomination for an office to be voted for wholly within a single county shall file his sworn statement and. receipt for committee assessment if any has been levied, with, and pay his filing fee as herein required, to the clerk of the circuit court of • said county, who shall receive the same in his capacity as clerk of the board of county commissioners of said county, not less than forty-five days previous to the day of the primary election. “102.34. Candidates entitled to have their names printed on official ballot. Each person who shall have filed his sworn statement and paid his filing fee and committee assessment, if any, as herein required, shall be entitled to have his name printed on the official primary election ballot; provided, that whenever the number of candidates of any political party for any office or position shall not exceed the number required to be nominated or elected to said office or position, the names of such candidates shall not be printed on the official primary election ballot, but such candidates are declared to be nominated for such office, or elected to such position.” These sections must necessarily be read in pari materia with the Act of 1943, supra. The oath of qualification and the fee required were not filed with or tendered to the Secretary of State until later than the first day of February, 1944. This is an action in mandamus, not a suit in equity. In mandamus the burden is on relator to show clearly that the *259 legal duty devolves upon the respondent to perform the act sought to be coerced. We hold that relator has failed to meet such burden and, therefore, the alternative writ should be denied. So ordered. BUFORD, C. J., BROWN, THOMAS, SEBRING and ADAMS, JJ., concur. TERRELL and CHAPMAN, JJ., dissent.