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STATE EX REL. CHERRY v. STONE
265 So.2d 56 (1972)
District Court of Appeal of Florida, First District.
August 4, 1972.
The duties that fall within the scope of mandamus are legal duties of a specific, imperative, and ministerial character as distinguished from those that are discretionary. In the case at bar, the duty sought to be coerced is the removal of respondent Wright's name from the list of candidates to be certified to the Board of County Commissioners as qualifying to run for House District 106 because Wright is said to be in violation of the Resign-to-Run-Law. Yet relator does not cite any law nor have we found any in our research which places a duty upon or empowers the Secretary of State to conduct an independent inquiry with respect to circumstances or facts dehors the qualifying papers which touch upon the qualifications of a candidate. In Davis ex rel. Taylor v. Crawford, 116 So. 41, the Supreme Court resolved the
matter of respondent's duty in the premises in the following manner: "The law does not give the secretary of state any power or authority to inquire into or pass upon the eligibility of a candidate to hold office for the nomination for which he is running... ." In State ex rel. Hall v. Hildebrand, 124 Fla. 363, 168 So. 531, 532, in an analogous situation the court said: "... it is true that the clerk of the circuit court has neither the responsibility nor the authority to pass judgment upon the supposed ineligibility of candidates for office who properly comply with the form of the primary laws governing their becoming a candidate for nomination in primary elections... ." In the case at bar, it appears from the exhibits attached to the petition that the relator's contention that respondent Wright is in violation of the Resign-to-Run Law, Section 99.012(2), Florida Statutes, is not without merit. The appointive office from which Wright allegedly did not resign appears not unlike the offices considered by the court in Orange County v. Gillespie, 239 So.2d 132 (Fla.App. 1970), and Ballard v. Cowart, 238 So.2d 484 (Fla.App. 1970), in which the courts held that the Resign-to-Run Law applies to an appointed member of the East Central Florida Regional Planning Council and an appointed member of the Hospital District Board of Hardee County. Both of these actions were for declaratory judgments, not mandamus. Nonetheless, under the decisions in Davis ex rel. Taylor v. Crawford, supra, and State ex rel. Hall v. Hildebrand, supra, the Secretary of State is without authority to pass judgment on questions dehors the filing instruments concerning the qualifications of candidates. That is a question that can only be decided by a court of competent jurisdiction. Since the Secretary not only has no clear legal duty to determine whether Wright has complied with the Resign-to-Run Law, but even if he were so inclined would be without authority to do so, we cannot issue a writ commanding him to do that which he is powerless to do.
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