After mature consideration, I find that I am unable to fully agree with the majority opinion. I fully agree with the views expressed by Mr. Chief Justice ELLIS.

I can follow the majority opinion down to and through the sixth paragraph, but no further. I can concur in the judgment which is proposed by Mr. Chief Justice ELLIS, though it is made by the majority opinion to appear to violate *Page 452 that principle that "in order to maintain the right to the extraordinary writ of mandamus, the relator must show something more than a duty on the part of the respondent." And that relator must also show that he has the legal right to demand performance of that duty by the respondent, and also "the writ will never be granted in cases when if issued it would prove unavailing or when in compliance with it would be nugatory in its effects, or would be without beneficial results and fruitless to the relator."

Conceding that these principles appy to this case; the question involved is one of party politics and should be determined by the exercise of the lawful discretion of the party officials. The party officials are the members composing the party executive committee. The relator shows that he has been accepted as a candidate for nomination by the party executive committee and has then done that which the statute requires to procure the performance of the physical act of having his name placed on the party ballot. He thereby has brought himself within the purview of the above stated principles.

A statement in any opinion in this case that the relator is eligible for election at the next general election to the office of Governor would (in the event the relator should receive the high vote in the general election), as has been stated by Mr. Chief Justice ELLIS, not be binding upon the candidate of any other party in that election who might come into this Court to contest the validity of the election of the relator on account of his ineligibility because of the ground sought to be presented and attempted to be adjudicated in this case. But, if his eligibility for election in the ensuing general election was a question for determination here I could not then follow the conclusions reached by the majority opinion. *Page 453

Reverting to the question of the relator's eligibilityvel non to be elected to the office of Governor, as is stated by Mr. Justice BROWN in the majority opinion, "this obviously depends upon the construction which should be placed upon Section 5 of Article III of the Constitution, the language of which is:

"No Senator or Member of the House of Representatives shall, during the time for which he was elected, be appointed or elected to any civil office under the Constitution of this State, that has been created or the emoluments whereof shall have been increased, during such time."

"It appears from the pleadings that the relator, Senator Taylor, was elected as a Senator on November 4th, 1924, and that the Legislature of 1925, of which he was a member, provided for an increase in the Governor's salary. He seeks to qualify as a candidate for the nomination as the Democratic party's candidate for Governor in the primary election to be held on June 5th, 1928, so that, if nominated, he may be qualified as the party's nominee for the Governorship in the general election to be held on November 6th, 1928."

If we look for the purpose and result sought to be accomplished by the foregoing quoted provision of our Constitution, we must first concede that the language was written in the Constitution with some particular and definite salutary end in view and it appears inescapable that the only purpose for which this language was written into our Constitution was to prevent existence of the temptation to vote for and encourage the creation of an office or for the increase of the emoluments of an office for one's own personal benefit and gain.

It is a matter of common knowledge of which this Court may well take judicial cognizance, that candidates for the State offices are usually developed and often begin their *Page 454 campaigns during the regular sessions of the Legislature. These sessions of the Legislature do not occur in election years. They occur in the odd numbered years.

It appears to me inescapable that the Constitution, having provided for the appointment by the Governor of some State officers and having provided that all others should be elected, and having also provided that in case of vacancy in elective offices the Governor shall appoint incumbents only to the next general election, had the provision here under consideration embraced therein, with the purpose and intent that its inhibitions should apply to general elections occurring at the close of the term of office for which Senators and/or Members of the House of Representatives were elected. It appears to me that any other construction would mean to say that insofar as elections are concerned, this provision of the Constitution never applies to any member of the House of Representatives and only applies to one-half of the membership of the Senate for one period of two years and to the other one-half of that membership for the next period of two years.

The construction placed upon this provision of the Constitution by the majority opinion means that members of the Legislature may without violating the Constitution vote to create offices and to increase the emoluments of offices for the purpose of immediately then and there beginning a campaign, and carry it through, to acquire that office which they have so created, or the emoluments of which they have so raised, and themselves immediately reap the benefits of their legislative action.

It appears to me that the framers of the Constitution intended that this inhibition should reach to and cover elections occurring at the next general election at which successors of Senators and/or Representatives should occur after the creation of an office or the increasing of emoluments *Page 455 of an office occurs and that, therefore, the relator in this case is not eligible for election to the office of Governor at the general election in 1928.

Aside from this view, I entertain the further view that the election of a Governor will occur at the general election in 1928 and that election will occur within the term or within the time for which the relator was elected as Senator and during which term at the regular session of the Legislature of 1925 the emoluments of the office of Governor were increased. The term of office of the relator will not end until the general election of 1928 shall have been completely held. That election will be held on Tuesday, the 6th day of November. If the Governor should call an extraordinary session of the Legislature to be convened at Tallahassee, the capital, on Thursday, the 1st day of November, and such extraordinary session of the Legislature should remain in session for a period of ten days, the relator would unquestionably be entitled to occupy his seat in the State Senate and to function in his office as a State Senator during the entire day of Tuesday, the 6th day of November, and during that day the election would be held and consummated, resulting in his election to the office of Governor (if he should receive the requisite number of votes). It certainly could not be said that that election occurred after the expiration of his term. If this provision of the Constitution is to be given any force and effect, if it is to accomplish that good purpose for which it was evidently intended, it appears to me that this construction must be placed upon its language. Believing that this is the proper and logical construction to be given this provision of the Constitution, it is my view that the relator, both according to the spirit and the letter of the Constitution, is ineligible for election to the office of Governor at the next general election to be held November 6th, 1928, *Page 456 but, as hereinbefore stated, the respondent is not clothed with the power or authority to determine his eligibility for election and the party executive committee, having by its official action accepted him as a candidate for the party nomination, it is not within the province of the courts to say that the party shall not have him as a candidate. As to whom any political party will accept as its candidate for office is a purely political question which courts should not assume to adjudicate; but when an election shall have been held and it happens that a candidate ineligible for election has apparently received the high vote, the opposing candidate in that election may then appeal to the courts to determine which of the two is eligible and shall have been lawfully elected to hold the office. Therefore, I maintain that the question of the eligibility of the relator for election to the office of Governor at a general election to be held on November 6th, 1928, was not one which the Secretary of State can assume to determine and that, therefore, that question is not involved in the determination of this suit. That the relator having been accepted by the proper party officials as a party candidate, and having produced before the Secretary of State proof of such acceptance, he was thereupon entitled to have the Secretary of State receive his fee and place his name on the official ballot.

The peremptory writ should issue. *Page 457