OOrrOURRIUG OiTNIOH OE
MR. JUSTICE ALDREY.On July 19, 1924, Robert H. Todd presented to this court a petition for a writ of mandamus against Eduardo J. Sal-daña, Executive Secretary of Porto Rico, alleging in substance that on the 11th day of the same month he presented to Saldaña a certificate showing that at a convention held on June 28th and 29th, 1924, by the Porto Rican Republican Party he had been nominated as candidate for the office of Resident Commissioner to the United States in the general election which would be held in this Island in the month of November, 1924. The certificate is signed by Manuel F. *658Rossy and Femando Géigel who only acknowledged the genuineness of their signatures before a notary public. The petitioner prays for a rule against the said Saldaña requiring him to show cause why a writ of mandamus should not be issued against him ordering him to receive the nomination of Todd and send it to the Insular Board of Elections with instructions that his náme be placed on the electoral ballots for the election as the candidate of the Republican Party of Porto Rico, under the emblem of the said party — the eagle.
This court issued the rule prayed for, from which I dissented for the reasons that inasmuch as it was not alleged in that petition that Executive Secretary Saldaña had refused to receive the nomination of Todd, it was improper to take any action against him to compel him to perform an act which he was not alleged to have refused to perform, and that although‘it was said in the. petition that the petitioner had information that Saldaña would refuse to receive that nomination, I considered that this was not sufficient to authorize the mandamus proceeding, because it was not alleged expressly that the respondent refused to perform any act which the law obliges him to perform, the fact that a few days intervened between the presentation of the nomination and the petition in mandamus not being of itself a positive demonstration of a refusal of the Secretary.
On the day set by the court Saldaña appeared for the sole purpose of objecting to the jurisdiction of the court because he had not been summoned personally, and he presented his affidavit to the effect that the candidacy of Todd was not presented to him, as alleged in the petition, and that he had not refused to receive it, for on the dates referred to in the petition in mandamus he was absent in the United States on a vacation to terminate at the end of the month of July, when he would again take' charge of his office.
The court discharged the rule against Saldaña and on the 29th of July Todd presented an amended petition for a Ttfrit of mandamus. The court ordered that on the following *659day Saldaña should appear to show cause for not receiving and filing the nomination of the petitioner, as candidate of the Porto Rican Republican Party for the office of Resident Commissioner to the United States and for not sending that nomination to the Insular Board of Elections with instructions that it be included in the proper place on the electoral ballots as the candidate of the Porto Rican Republican Party, under its emblem — the eagle.
Saldaña again appeared before this court and presented an affidavit stating that he approved all of the acts of He-rrero, Acting Executive Secretary of Porto Rico, in relation to the question under consideration, alleging that from the said acts it is deduced that the certificate of the nomination of Robert H. Todd for Resident Commissioner to the United States was received in the office of the Executive Secretary of Porto Rico on the date of its presentation; that the said certificate is now in the files of the said office and forms a part of its official records, and that these facts are stated under oath by him in the affidavit exhibited and made a part of the record of the case. He also alleged in answer to the other point of the rule that according to section 41 of Act No. 79 of 1919 to establish the law of registration and elections, as amended on July 30, 1923, there has not been and is not at present any obligation or duty on the part of the respondent to send to the Insular Board of Election the name of any candidate whose nomination may have been filed in the office of the Executive Secretary of Porto Rico to be voted for at the election to be held on November 4th of this year; that such obligation will not exist until October 1, 1924, when it is the duty of the Executive Secretary to transmit to the said board certified lists of the names of all candidates on the same day, and that the respondent has no obligation finder the law to transmit separately to the Insular Board of Elections the name of any candidate for any office to be voted for at the next election. The respondent also alleged as a reason which bars absolutely the issuance of the writ of man-*660damns in this case that in the afternoon of July 29, 1924, there was delivered to him personally a certificate signed by José Tons Soto and Engenio Lecompte as president and secretary, respectively, of a convention held by the Porto Rican Republican Party in the City of San Jnan on the 25th of July showing that the said party nominated Hon. Félix Cór-dova Dávila as its candidate for the office of Resident Commissioner to the United States; that the said certificate of nomination, as well as the certificate presented in the name of Todd, was received in the office of the Executive Secretary .of Porto Rico and placed in its files, 'forming a part of the official records of the said office; that these facts are stated under oath in the affidavit exhibited and made a part of the record of the case; that inasmuch as the certificate of nomination presented in the name of Todd has been made in the name of the Porto Rican Republican Party, as appears from the accompanying certificate, and the certificate of nomination made in the name and favor of Hon. Félix Córdova Dávila appears also to be made in the name of the Porto Rican Republican Party, or the same party alleged to have nominated the petitioner in this case, the action of the Executive Secretary of Porto Rico is expressly and textually prescribed in section 36 of the Electoral Law of Porto Rico; that, according to the second paragraph of that section, after these two certificates of nomination are filed the action of the respondent under the present circumstances is limited to giving notice of this fact to the central committee of the party in whose name these two certificates of nomination have been presented, and that the authority of determining which of these certificates of nomination represents the official candidacy of the said party has been conferred expressly by said section 36 upon the said central committee. The respondent also alleged that as the certificate of nomination of Félix Córdova Dávila had been presented in his office on the day before, he had not had time to comply with the *661express provision of tlie law in such circumstances, but that he intended to comply with it strictly-as soon as possible.
With that answer were exhibited as a part of it several affidavits to prove the facts alleged, among them that the nomination of Todd was received in the office of the Executive Secretary of Porto Rico and is among the documents of its records; that receipt was acknowledged to Todd of his candidacy; that on July 14, 1924, José Tous Soto, as president of the Porto Rican Republican Party, delivered in the same office an affidavit stating that the said Porto Ri-can Republican Party had held no convention up to that date for nominating candidates for the election of this year, and that on July 21st the Executive Secretary requested Todd in writing to submit proof that the convention which nominated him was properly assembled. None of the facts stated in those affidavits have been denied by the petitioner.
Section 36 of the Electoral Law, as amended on July 30, 1923, provides that any political party which shall have cast more than twenty per cent of the total vote of the Island for Commissioner to Washington at the last general election shall be entitled to nominate candidates by duly called conventions which shall be held not later than September fifth, and that the president and secretary of such conventions shall certify to the Executive Secretary, not later than twelve o’clock noon on September tenth, the names of all candidates nominated by the convention.
In this case the certificate of nomination of the petitioner was presented to the Acting Executive Secretary of Porto Rico on July 11, 1924, and as the respondent, Secretary Sal-daña, alleges under oath that the said certificate was received in his office on the date of its presentation and that it appears in the files of the office and forms a part of its official records, a writ of mandamus should not issue to compel him to do what he acknowledges and- admits that he has done, that is, to receive and file with the other official documents of his office the petition of Todd, the receipt and filing of *662which appears more clearly from the affidavit exhibited with his answer; therefore, in view of these facts admitted by the respondent secretary, this court has not to pass upon the action of the acting secretary in requesting Todd to submit proof of Ms nomination.' The demand of the petitioner that the Executive Secretary send his name to the Insular Board of Elections to be printed on the official ballots as the candidate of the Porto Rican Republican Party for the office of Commissioner to "Washington is contrary to the law, for its section 41 provides that on the first day of October the Executive Secretary shall transmit to the Insular Board of Elections certified lists of the names of all candidates filed in his office, and as that day has not arrived, the petitioner can not require or compel the respondent to send the name of the petitioner as such candidate to the said Insular Board of Elections. Furthermore, the secretary is under no obligation to transmit separately to the board the names of candidates as they are presented, but is required to send lists of all of the candidates on the first day of October.
The petition for a writ of mandamus should be denied also because the second paragraph of said section 36 provides that no political party shall file more than one nomination for each office and as certificates of nomination may be presented until the tenth day of September, the secretary can not know until that date whether the nomination which has been presented to him is that which he must certify to the Insular Board of Elections on the first day of October to figure in the electoral ballots, for as our law foresaw in the second paragraph of said section 36 that there might be presented more than one nomination as candidates agreed upon by two or more conventions of the same party, as in this case in which two candidates of the Porto Rican Republican Party for Resident Commissioner to the United States have been presented, it provides that in a case like the present case the Executive Secretary shall notify the central committee of said party, which committee shall be *663empowered to determine which is the official nomination of the party, and its decision shall he filed with the Executive Secretary before twelve o’clock noon on September twentieth, and that the Executive Secretary shall be governed by said decision unless on or before September thirtieth a court of justice shall have ordered otherwise.. It also provides that if the central committee of the interested party should fail to file its decision before twelve o’clock noon on September twentieth, the nomination first filed with the Executive Secretary shall be considered as the official nomination of said party and all other nominations of the same party for the same office shall be deemed null and void.
Inasmuch as our law forbids that there shall be more than one candidate of each political party; inasmuch as it has foreseen the case in which two or more candidates may be presented as of the same party and has prescribed clearly what shall be done in such a case, and inasmuch as the secretary-declares under oath that he is disposed to comply with the law as soon as possible and it has not been determined which of the two nominations presented is the official one, this Court can not order the Executive Secretary to consider that of the petitioner as the official nomination which must figure in the electoral ballots. That is what the statute provides and we are not legislators to change it and establish something to the contrary or distinct from the provisions of the statute.
It is true that the Supreme Court of Nebraska in the case of Phelps v. Piper, 48 Neb. 724, and the Supreme Court of Michigan in the case of Stephenson v. Board of Elections, 118 Mich. 396, held that in case of two candidates of the same party both should figure in the electoral ballots, but those decisions are not applicable to the case here under consideration because both are based on the fact that the legislatures of those States had not provided for what should be done in such a situation, and in the former case it was said that “the legislature has not provided any means for determining *664such controversies.” In the latter case the court said: “Here we have to deal with two conventions, each claiming the light to represent the same political party. The act itself will be searched in vain for any provision for such a contingency. It was not contemplated by the Legislature, and therefore not provided for. It should not be a matter of surprise that the act as originally passed is not perfect in all particulars.”
Our Legislature foresaw the case which was not contemplated by these two- States and consequently the secretary must follow the course marked out by it and is so disposed.
For the reasons stated the petition for a writ of mandamus should be denied and I concur in the decision of the court only in so far as it refused to issue the writ.