"`Only the names of candidates who have been put in nomination by primary election or the appropriate executive committee of a political party' can lawfully be printed on the general election ballots; and that the statutes permit a nomination of a political party candidate by the appropriate executive committee of the party, to be printed on the official election ballots, only when the party had candidates for the office in the preceding primary election and no candidate of the party received a majority of the votes cast for a nominee of the party for the office at the primary election; or when the appropriate committee duly nominates a candidate to fill a vacancy in a party nomination that had been made in a primary election."
The Justice also said: "The filing in the office of the Secretary of State a certificate of the nominations made by a political party as was done in this case, and the right to vote for candidates on blank lines on the election ballots, enable the members of any political party to make a record of nominations of candidates for office made by their party, and to vote for such candidates at the general election; since if such nominations cannot legally be certified and printed on the election ballots, the members of such party, if they are duly qualified electors, may vote for the names of their *Page 449 choice by writing the names and placing X mark opposite the names on the blank lines printed under the offices on the ballots at the election. Conveniences for so voting supplied under the statute. Sec. 324 (268) Comp. Gen. Laws 1927.
"In this way the votes duly cast for these persons who are candidates of a political party as such candidates are shown by the certificate of the party officials on file in the office of the Secretary of State, may be credited to that political party in determining whether the party has polled the requisite percentages of the entire vote cast, to be classed as a political party under the statutes of the State so as to entitle such party to make nominations of candidates by primary election and to have the names of its duly nominated candidates printed on the general election ballots at the expense of the public."
The Justice further said: "It is not * * * perceived how the statutory provisions complained of violate Sections 1 and 6 of the Declaration of Rights, or abridge the privileges or immunities of citizens of the United States, or disturb `domestic tranquility.'"
In the case of State, ex rel. Sunday, v. Richards, 50 Fla. 284, text 288, 39 Sou. Rep. 152, it was said:
"A writ of mandamus may in the exercise of a sound judicial discretion of the court be issued to enforce the performance of a legal duty imposed by law upon a ministerial officer where such duty does not involve the exercise of discretion of judgment by the officer and the relator has a clear legal right to have such duty performed, and there is no other adequate remedy provided by law. Towle v. State, ex rel. Fisher, Sheriff, 3 Fla. 202; State v. Crawford, 28 Fla. 441, 10 South. Rep. 119." See also Bigham v. State, ex rel. Ocala Brick Tile Co., 115 Fla. 852, text 867,156 South. Rep. 246. *Page 450
In the case of State, ex rel. Barnett, v. Gray, supra, it was held as follows:
"As the law now is, the candidates nominated for office whose names are required to be certified by the Secretary of State and to be printed on the official general election ballots by the County Commissioners, are only the names of those candidates who have been nominated as defined by Section 1 of Chapter 14657, Acts of 1931, amending Section 312 (256) Compiled General Laws of 1927, interpreted in connection with Section 14, Chapter 13761, Acts of 1929, amending Section 411 (354) Compiled General Laws, 1927" (4th headnote).
The constitutionality of the two chapters, 13761, Laws of 1929, and 14657, Laws of 1931, is therefore not involved in this proceeding because even if the purpose of the Legislature, in defining a political party as being one which polled at the last general election thirty per cent. of the total votes cast, is unreasonable and violates all of the provisions of the State and Federal Constitutions, as contended by relators, there is left no provision of the statute which requires the Secretary of State to certify the names of the relators to the various Boards of County Commissioners to be printed on the ballot to be used in the general election as candidates for the offices to which they aspire.
Should we agree with counsel for relators in the excellent brief filed by him and the oral argument made as to the purpose of the Legislature by such enactments to confine the politics of this State to one organized party, called the Democratic Party, it would be useless for us to extend that argument by way of advice to the Legislature, and we therefore abstain from doing so.
The motion to discharge the rule nisi and the demurrer to same are hereby sustained and the alternative writ denied. *Page 451
WHITFIELD, C.J., and TERRELL, BROWN, BUFORD and DAVIS, J.J., concur.