This original action for mandate and prohibition arises out of the assumption of jurisdiction under the provisions of the Indiana Election Code (Acts 1945, ch. 208, Art. 27), §§29-5401 to 29-5417, Burns’ 1949 Replacement, by the Martin Circuit Court and the Judge thereof of a primary election recount and contest proceedings, and the ordering of a recount and appointing commissioners to recount the votes cast in Martin County, Indiana, in the primary election held on May 6, 1952 for the nomination on the Democratic ticket for the office of joint representative in the Indiana General Assembly of and from Dubois and Martin Counties.
The proceedings in the trial court were instituted by one Frank J. Seng who, according to the certificate of the canvassing board, received a lesser number of votes for said nomination than did the relator herein who was certified by said board as the nominee. Upon the petition of relator we issued a temporary writ prohibiting further proceedings and ordering respondents to show cause why said temporary writ should not be made permanent.
*116The sole question presented is: Are the recount sections of the Indiana Election Code (Acts 1945, ch. 208, Art. 27, supra) in so far as they purport to authorize a recount of the votes cast in the primary election for the nomination of joint representative in the General Assembly of Indiana unconstitutional in that they violate Art. 4, §10 of the Indiana Constitution?—i.e., Can the Legislature confer upon the courts jurisdiction of a recount and contest proceeding in a primary election, involving candidates for nomination for the Indiana General Assembly ?
By instituting the recount proceedings in the court below, the petitioner Seng sought the intervention and invoked the jurisdiction and authority of the judicial branch of the government. State ex rel. Watson v. Pigg, Judge (1943), 221 Ind. 23, 46 N. E. 2d 232; State ex rel. Claffey v. Goett (1946), 224 Ind. 391, 68 N. E. 2d 497.
Art 4, §10 of the Indiana Constitution provides in relevant part as follows: “Each House, when assembled, shall . . . judge the elections, qualifications, and returns of its own members. . . .” Said article does not provide or say that each House, when assembled, shall judge the nomination, election, qualifications, and returns of its own members, or the qualifications and returns of nominees for members of the Legislature.
An examination of the Debates in Indiana Convention 1850 fails to disclose any mention of primary elections or nominations in discussions or resolutions pertaining to the election and seating of members of the General Assembly. It seems clear to us that the word “election” as used in said Art. 4, §10, refers only to “general” and not “primary” elections.
*117*116There can be no question of eligibility, qualifications, or returns of a member before the Legislature for de*117termination until a nominee, who was duly elected in the general election, presents himself for admission to one of its bodies.
This is not an action to determine either the election, eligibility, qualifications, or returns of relator as a member of the Legislature. The sole question here presented is the right of the petitioner Seng to have the court, through the appointment of recount commissioners, determine his rights, if any, to the nomination on his party’s ticket for the office of joint representative from Dubois and Martin Counties.
This is not, as in State ex rel. Acker v. Reeves (1951), 229 Ind. 126, 95 N. E. 2d 838, and in State ex rel. Beaman v. C. Ct. Pike Co.; Gibson Co. (1951), 229 Ind. 190, 96 N. E. 2d 671, a proceeding to test the title to an office but is one to test the right to be a candidate (nominee) for an office—the right to stand for election.
The primary election is the initial step in our election system looking to the nomination of candidates whose names are to appear on the official ballot in the general election. It takes the place of party nominating conventions. 18 Am. Jur., Elections, §146, pp. 275, 276. It is a separate and distinct step (election) to determine the nominees of political parties for various offices to be voted for in the general election. The results of the primary election as finally determined are final and conclusive in the determination of this question.
Nomination in a primary election is in no sense an election to an office. Martin v. Schulte (1933), 204 Ind. 431, 182 N. E. 703. Relator herein is not yet elected a member of the Legislature. If nominated he is then only placed in a position to be elected as a member if he gets the required number of votes in the November (general) election.
*118A successful prosecution of the proceedings in the trial court would result in the substitution of Seng’s name for that of relator on the ballot in the general election, but it would not result in his being seated as a member of the House of Representatives in the Indiana General Assembly unless he is subsequently duly elected in the general election, and his election, qualifications, and returns are approved by the House when he presents himself for admission thereto. These circumstances sufficiently establish the fact that in passing upon the recount petition filed herein the trial court is not attempting to judge the election, qualifications, or returns of a member of the Legislature. This can only be done by the Legislature.
State ex rel. Acker v. Reeves (1951), 229 Ind. 126, 95 N. E. 2d 838, supra; State ex rel. Beaman v. C. Ct. Pike Co.; Gibson Co. (1951), 229 Ind. 190, 96 N. E. 2d 671, supra.
All the court is asked and required to do in the proceeding herein, is to determine which of two persons was nominated as the candidate of a political party for the office of joint representative. It is not requested or required to judge or pass upon the election, qualifications or returns of a member of the Legislature, and any judgment rendered by the trial court herein would be a binding judgment, finally fixing the rights between the relator and Seng as to which of the two was nominated and as to whose name should appear on the ballot to be voted for in the general election.
Seng does not, and could not, seek an order of the court directing the House to recognize him as the duly elected member of that body. He seeks only a determination of his rights to have his name placed upon the ballot in lieu of relator’s in order that he might stand for election in the general election to be held in No*119vember, and the procedure which he has undertaken to follow is his only available remedy. The Legislature has properly provided this remedy and the trial court should be permitted to exercise its jurisdiction to administer it.
A “primary election” is the statutory vehicle for choosing candidates by political parties, for the various offices to be filled in the general election, and, while an integral part of our election system, is not an “election” within the meaning of Art. 4, §10, of the Indiana Constitution. The Legislature may, therefore, confer upon the courts jurisdiction of recounts and contests involving nomination for members of the Legislature in primary elections. Kelso v. Cook (1916), 184 Ind. 173, 110 N. E. 987; Leu v. Montgomery (1914), 31 N. D. 1, 148 N. W. 662; State ex rel. Cloud v. Election Board (1934), 169 Okla. 363, 36 P. 2d 20, 94 A. L. R. 1007. See also: Davis v. Stahl (1941), 287 Ky. 629, 154 S. W. 2d 736; People ex rel. Lindstrand v. Emmerson (1929), 333 Ill. 606, 165 N. E. 217, 62 A. L. R. 912; Tucker v. Bagby (1932), Tex. Civ. App., 52 S. W. 2d 801.
Relator relies upon the cases of Lucas v. McAfee (1940), 217 Ind. 534, 29 N. E. 2d 403, 588; State ex rel. Acker v. Reeves, supra; and State ex rel. Beaman v. C. Ct. Pike Co.; Gibson Co., supra, in support of his contention that the trial court is without jurisdiction to entertain a petition for recount of votes involving the nomination in a primary election for the office of a member of the General Assembly. These cases correctly state the law as it applies to questions involving the election, qualifications, and returns of members of the Legislature when such questions arise out of general elections. The Acker and Beaman cases were concerned only with this question and are clearly dis*120tinguishable from the case at bar. For the reasons above stated, the doctrine of the Lucas case, wherein the trial court was prohibited from considering the qualifications of a candidate for nomination for State Senator, should not be extended to prohibit a recount of votes for the nomination for a legislative office in the primary election.
The temporary writ of prohibition is dissolved and a permanent writ denied.
Draper, J., dissents with opinion, in which Gilkison, J., concurs.