State v. Gray

I concur with what is said in the opinion by Mr. Justice SEBRING except in the conclusion that the petition is sufficient to show that it is the clear legal duty of the Respondent to issue a certificate of nomination to the relator as a candidate for the appointive office of County Solicitor of Dade County, Florida.

Relator bases his alleged right and the existence of Respondent's alleged duty on the provisions of Sections 102.29, 102.31 Florida Statutes 1941 (same FSA) in connection with the provisions of Section 102.67 Fla. Stat. Cumulative Supplement 1943. Without the provisions of Sec. 102.67, supra, there would be no color of authority for the contentions made by Relator. So it is if the provisions of Sec. 102.67, supra, are unconditional and therefore totally invalid there is no duty resting on Relator to perform the act sought to be coerced.

The sole purpose and intent of Sec. 102.67, supra, is to provide a method to coerce the Governor in the exercise of the power of appointment under Section 27 of Article III of the Constitution. By this Act the legislature has attempted to authorize and put in motion the machinery to coerce the Governor to appoint the particular person who is to be selected by others or by the applicant himself if he should be the only person to meet the terms of the statute. It is no answer to this to say that the statute does not in terms require the Governor to respect the nomination made under the statute. The well known fact remains that the coercion is there. It must necessarily be recognized that this one thing is the purpose of the statute because there is absolutely no other reason for its existence and no other purpose within its purview.

Now it is too well settled to require citation of authorities that the legislature cannot do by indirection that which it cannot do directly. If to this statute the legislature had added the words "and the Governor shall appoint the nominee to such office" such words would have added nothing to the force and effect of the statute but I dare say that no one would have been heard to contend that any part of the section 102.67 supra, could be held valid. That which the legislature did not command the Governor to do was left to be accomplished by the lash of the political party whip.

In State ex rel. v. Daniel 87 Fla. 270, 99 So. 804, we said:

"The legislature cannot under our Constitution authorize any other person or authority to participate in selecting or to hamper the exercise of executive judgment in making selections for appointments to office. See Westlake v. Merritt, 85 Fla. 27,95 South. Rep. 662; State v. Washburn 167 Mo. 680,67 S.W. 592, 90 Am. St. Rep. 430; State ex rel. Harvey v. Wright,251 Mo. 325, 158 S.W. 823, Ann. Cas. 1915-A 588; 12 C.J. 837."

We cannot refuse to see and adjudicate the question because the parties to this suit have not raised the question. This is true because we must in giving judgment for the Relator determine that there is a clear legal duty resting on the Respondent to perform the Act sought to be coerced and when the purported legislative act requiring the Act to be performed is patently contrary to the provisions of the Constitution no clear legal duty to perform the Act is made to appear.

In State ex rel. v. Hilderbrand 124 Fla. 363, 168 So. 531, we held:

"Peremptory writ of mandamus should not issue where relator plainly demonstrates on face of his pleadings in first instance clear lack of legal right to particular relief sought to be compelled."

So, the peremptory writ should not issue.