Opinion
August 22, 1952.
Supreme Court of Florida Tallahassee 19 August 1952
The Honorable Fuller Warren Governor of the State of Florida Tallahassee, Florida
Dear Sir:
We have your request of August 18, 1952, for our opinion affecting your executive powers and duties as follows:
"August 18, 1952
"Honorable H.L. Sebring, Chief Justice, and the Justices of the Supreme Court of Florida,
Tallahassee, Florida
Re: The duty or authority of the Governor to call a special primary of Republican Party to nominate a candidate for the office of Justice of the Supreme Court of Florida.
Gentlemen:
Under Section 6, Article IV of the State Constitution, F.S.A., I am directed to take care that the laws of this State are faithfully executed, and under Section 13 of said Article IV, I am authorized to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the State Constitution upon any question affecting my executive duties and powers.
Section 24 of Article IV of the State Constitution provides that the State Treasurer shall disburse no funds except upon order of the Comptroller countersigned by the Governor.
Section 1 of Article IV of the State Constitution provides: "The Supreme Executive power of the State shall be vested in a Chief Magistrate, who shall be styled the Governor of Florida."
In your advisory opinion to me of August 13, 1952 [ 60 So.2d 285, 287] you gave as your opinion that Chapter 26870, Laws of Florida 1951, F.S.A. § 97.011 et seq., was a complete revision of the General Laws "in respect to elections including general, primary, and special elections."
You further advised that under Section 100.111(2)(c) Florida Statutes 1951, F.S.A., which is a part of Chapter 26870, Laws of Florida 1951, it was my duty to call "a special first primary and if necessary, seven days later, a special second primary for the purpose of filling the vacancy in nomination caused by the death of the Honorable Roy H. Chapman for the office of Justice of the Supreme Court of Florida for a full six-year term beginning the first Tuesday after the first Monday in January, 1953." The late Justice Chapman occupied two positions prior to his death. He held the elective office of Justice of the Supreme Court expiring on the first Tuesday after the first Monday in January, 1953. In addition to holding this elective office, he was also the nominee of the Democratic Party with the right to have his name placed upon the general election ballot in November for the full six-year term beginning the first Tuesday after the first Monday in January 1953.
The Republican Party is a recognized political party in the State of Florida. Section 99.061, Florida Statutes 1951, F.S.A., which is a part of Chapter 26870, General Laws of Florida 1951, provides as follows:
"(1) Candidates for nomination of any recognized political party for state offices of secretary of state, attorney general, state comptroller, state treasurer, state superintendent of public instruction, commissioner of agriculture, state senator, member of the house of representatives, supreme court judge, circuit judge, states attorney and candidates for the offices of representatives to congress and United States senate, are required to file their qualification papers, pay the qualification fees and party assessment, if any has been levied, to the secretary of state not later than noon of February first of the year in which any primary is held.
"(2) Candidates for nomination of any recognized political party for the office of governor and all other candidates for state offices are required to file their qualification papers and pay their qualification fees not later than noon March fifteenth of the year in which any primary is held."
No person qualified as a candidate for nomination as Justice of the Supreme Court of Florida in the recent Republican Primary so as to be eligible, if nominated, to have his name placed upon the general election ballot in November. There was no nomination by the Republican Party.
I recognized a clear distinction between a vacancy in office and a vacancy in nomination by a political party. I filled the vacancy in office for the unexpired term, caused by the death of the late Roy H. Chapman, as required by the Constitution, which ends on the first Tuesday after the first Monday in January, 1953.
Your advisory opinion made it plain to me that it was my duty to call a special primary of the Democratic Party for the purpose of filling the vacancy in nomination caused by the death of the late Roy H. Chapman for the office of Justice of the Supreme Court of Florida for a full six-year term. I, therefore, issued my proclamation calling a special first primary, and if necessary, seven days later a special second primary for the Democratic Party for the purpose of filling the vacancy in nomination which existed. I did not consider that any vacancy existed in nomination in the Republican Party because of the failure of any person to qualify as a candidate for nomination and because of the failure of said Republican Party to make a nomination.
There seems to be a sharp and divided conflict of opinion as to whether or not any vacancy exists in nomination by the Republican Party for the elective office of Justice of the Supreme Court of Florida for a full six-year term beginning the first Tuesday after the first Monday in January, 1953, and whether or not it is my duty to include in my call, or proclamation, or issue a special call or proclamation for a special primary of the Republican Party to fill such alleged vacancy in nomination.
The question of whether or not such a vacancy exists in nomination and whether or not I should call such special primary for the Republican Party involves my constitutional duty to take care that the laws of this State be faithfully executed and that I countersign no warrant for the disbursement of public funds except as may be authorized by law. Should I call a special Republican Primary to fill a vacancy in nomination when there is no nomination, my act would be illegal, and should I fail to call such an election to fill a vacancy in nomination, when there exists a vacancy in nomination, I would have failed to perform my constitutional duty to take care that the laws of this State be faithfully executed. Should the call for a special Republican Party primary be illegal, expenditure of any public funds in connection therewith or for that purpose would be illegal.
In view of the doubt which exists and which has been expressed, I, therefore, have the honor to request your opinion: first, whether or not a vacancy exists in nomination of the Republican Party of a candidate whose name would otherwise have gone on the general election ballot in November; and, second, in compliance with my duty to take care that the laws be faithfully executed, is it my duty, or am I authorized, under the Constitution and laws enacted pursuant thereto, to call a special primary election of the Republican Party to fill such a vacancy in nomination?
Respectfully submitted, /s/ Fuller Warren
Governor"
In our recent Advisory Opinion in answer to your Request of August 12, 1952, 60 So.2d 285, we construed the existing statutes governing elections as placing upon you the mandatory duty of calling a "Special primary election" to fill the vacancy in nomination for the office of Justice of the Supreme Court of Florida created by the death of the late Justice Roy H. Chapman, who, at the time of his death, was the duly selected nominee of the Democratic Party. In connection with the discharge of such duty we advised you that you had the statutory authority to fix the date therefor. We understand from your latest request for an advisory opinion that we are now asked to advise you whether the "Special primary election" which it is your duty to call should be restricted to the Democratic Party in Florida or should include the Republican Party, a "recognized political party" in this state.
Prior to 1951, the statutes governing elections in Florida were contained in Chapters 97 to 106, inclusive, Florida Statutes 1949. In 1951 the Legislature enacted Chapter 26870, General Laws of Florida 1951, known as the Election Code of 1951, F.S.A. § 97.011 et seq., and by Section 9 thereof repealed Chapter 105, 106 and 875, Florida Statutes, and all sections or parts of sections of Chapters 97, 98, 99, 100, 101, 102, 103 and 104 not revised or brought forward in the Code. It is to the Election Code of 1951, therefore, and not to any statutory law existing prior thereto and repealed thereby, that the answer must be found to your inquiry. In our consideration of the pertinent provisions of the Election Code, reference will be made to the sections thereof as the same now appear in Florida Statutes 1951, F.S.A.
In order correctly to answer the questions propounded it becomes necessary to consider the various pertinent sections of the Election Code of 1951 as such sections may refer or relate to each other. For it is a cardinal rule of statutory construction that in respect to an act comprehending a whole subject matter no specific section will necessarily stand alone; and where a section refers to some other section or sections, or where some other section or sections may be applicable to a specific section, all must be considered and construed together, in order to ascertain legislative intent. See Bryan v. Landis, 106 Fla. 19, 142 So. 650.
Section 97.021, Florida Statutes 1951, F.S.A., contains many definitions pertinent to the inquiry.
Subsection (1) thereof defines a "primary election" to be an election "held preceding the general election, for the purpose of nominating a party nominee to be voted for in the general election to fill a national, state or county office". As stated in the subsection, "The first primary is a nomination or elimination election, the second primary is a nominating election only"; and, as made plain in Section 100.061, Florida Statutes 1951, F.S.A., "A first primary election is held on the first Tuesday after the first Monday in May of every year in which a general election is held for nomination of candidates of political parties * * *. A second primary election is held on the fourth Tuesday after the first Monday in May of every year in which a general election is held for the nomination of candidates of political parties for state and county offices for which nominations were not made in first primary election * * *."
A "Special primary election" is quite a different thing. As defined in Section 97.021(3), a "Special primary election" is "a special called nomination election designated by the governor, for the purpose of nominating a party nominee to be voted on in a general or special general election."
Subsection (6) of Section 97.021 defines a political party to be a "group of citizens" organized for the general purpose of electing to office "qualified persons, and the determination of public issues under the accepted democratic processes of the United States of America"; and Subsection (6) provides that "Any such group may be recognized as a political party which on January 1 preceding a primary election has registered to vote as members more than five percent of the total registered electors of the state." Subsection (6) provides, further, that "Such political party shall nominate its candidates for elective offices to be voted for in the next general election, in the primary and in no other manner except to fill vacancies in nomination as otherwise provided."
Section 99.061(1), Florida Statutes 1951, F.S.A., prescribes that "Candidates for nomination of any recognized political party for state offices of * * * supreme court judge * * * are required to file their qualification papers, pay the qualification fees and party assessment, if any has been levied, to the secretary of state not later than noon of February first of the year in which any primary is held."
Section 99.131 provides for the printing of names of candidates on the general election ballot. After making provision for the nominees of each political party which have been nominated in the primary, it provides that there must be printed on the ballots the names of candidates of political parties "nominated or selected to fill vacancies in nomination or vacancies in office in the manner and within the time provided by chapter 100." This Section also provides for blank lines under each office to be balloted on.
Section 101.25, Florida Statutes 1951, F.S.A., is a revision of Section 102.01, Florida Statutes 1949, and provides, among other things, that "The name of no person nominated shall be placed upon the official ballot to be voted at the general election as a candidate for any office, unless the person has been nominated for the office under the provisions of this code."
Section 100.051, Florida Statutes 1951, F.S.A., is essentially the same as former Section 102.50, Florida Statutes 1949, and was brought forward into the Election Code as follows: "The board of county commissioners of each county shall print on ballots to be used in their county at the next general election the names of candidates who have been nominated and qualified."
Section 100.111, Florida Statutes 1951, F.S.A., is a revision of former Section 102.48, Florida Statutes 1949, and when reference is made to Section 97.021(3), (5), and (6), and Sections 99.061, 99.131, and 101.25, Florida Statutes 1951, F.S.A., this section plainly and unmistakably requires special primaries to fill a "vacancy in nomination" as well as special primaries for the selection of a nominee to fill a "vacancy in office."
From the foregoing it is clear that the purpose of a "primary election" is to nominate a party nominee in May of every year in which a general election is held for nomination of candidates of political parties; that a "special primary election" is a specially called nomination election "designated by the governor for the purpose of nominating a party nominee to be voted on in a general or special general election"; that the Republican Party in this state is "recognized as a political party"; and we take judicial notice of the fact that in May, 1952, it held a primary election as required and authorized by law.
Because of the mandatory provisions of the Election Code, the Republican Party candidates for elective offices to be voted for in the general election were required to be nominated in the primary election of 1952 "and in no other manner except to fill vacancies in nomination as otherwise provided"; and candidates for nomination of the Republican Party for Supreme Court Judge were required "to file their qualification papers, pay the qualification fees and party assessment * * * not later than noon of February first of the year" 1951. No person qualified in the Republican Party primary as a candidate for nomination for Justice of the Supreme Court of Florida for the six-year term beginning the first Tuesday after the first Monday in January, 1953, as required by the statute, and no one was nominated by the Republican Party for such office, although the office was open to such party for such nomination.
As to printing names of candidates on the general election ballot, the requirements of the Election Code are that not only the nominees of the party in the primary election shall appear, but also in addition thereto" candidates of political parties nominated or selected to fill vacancies in nomination or vacancies in office in the manner * * provided by chapter 100" shall be printed thereon; and that the name of no person shall be placed upon the official ballot to be voted at the general election as a candidate for any office unless the person has been nominated for the office "under the provisions of [the Election Code]."
Because of the fact that Section 97.021(3) places upon the Governor the duty of calling "Special primary elections" for the purpose "of nominating a party nominee to be voted on in a general or special general election"; and because of the requirement of Section 99.131 that there must be printed on the general election ballot the names of candidates of political parties "nominated or selected to fill vacancies in nomination * * * in the manner and within the time provided by chapter 100", it becomes necessary to consider the provisions of Chapter 100 in order to ascertain the manner provided.
Chapter 100, Florida Statutes 1951, F.S.A., contains Section 100.111 (2)(c), which reads as follows:
"When a vacancy occurs later than thirty days before the first primary and before forty days prior to the general election, it shall be subject to a special first primary and if necessary seven days later a special second primary to be called by the governor. Ten days shall be allowed from the time the vacancy occurs in which to specially qualify and the name of the person nominated in the special primary shall be placed on the general election ballot but in event the general election ballots have already been printed then a separate ballot shall be prepared."
No section of Chapter 100, other than Section 100.111, deals with the question of calling special primary elections for the purpose of filling vacancies; hence, it must be concluded that Section 100.111 is the only section that can be looked to in order to determine the manner in which special primary elections may be called for the purpose of filling vacancies in nomination.
It must be freely admitted that if we were allowed to consider Section 100.111 in isolation the conclusion would have to be reached that Section 100.111 is limited to the narrow purpose of authorizing the calling of a special primary election only to fill "a vacancy in office." But when it is considered that Section 99.131 requires nominations of candidates of political parties to fill "vacancies in nomination" to be made in the manner provided by Chapter 100, it must be plain that the Legislature did not intend that Section 100.111 should be applicable only in cases of nominations to fill "vacancies in office", but that that section should be given the same effect in connection with the provisions of Section 99.131 as though written into the latter statute; and that when so construed it should control the manner of filling "vacancies in nomination".
The word "manner" has a definite meaning. It may be defined as "the way of performing or executing; the method by which a thing is executed." See Ballentine's Law Dictionary, 2nd ed. Other definitions may be found, as follows:
"The word 'manner' in the Australian ballot law, regulating the 'manner' of holding elections, has the ordinary meaning of mode, method, way of effecting a result. Getty v. Holcomb, 79 Kan. 224, 99 P. 218, 219.
* * * * * *
"The word 'manner' has a broader meaning than 'method'; it derives from Latin manus, the hand, and is literally the handling of a thing, and has a wider sense, embracing both method and mode. Pitcher v. Board of Trade of City of Chicago, 20 Ill. App. 319. * * *
"Statute creating county public hospital and providing for trustees, three of whom were to serve for two years and two for four years, and at subsequent general election offices of trustees whose terms were to expire should be filled by nomination and election in same 'manner' as other county officers are elected, held to require clerk to designate candidates for long and short term of office of trustees at primary and general elections; word 'manner' meaning mode of procedure or way. * * * Comp. Laws 1929, Sec. 2226. State ex rel. Robinson v. Beemer, 55 Nev. 363, 35 P.2d 301, 302."
See Vol. 26 Words and Phrases, pages 354, 356.
As we understand the precise factual situation which gives rise to your inquiry, the late Justice Chapman departed this life on a date "later than thirty days before the first primary and before forty days prior to the general election" to be held in November, 1952. At the time of his death he held the office of a Justice of the Supreme Court of Florida for the term ending the first Tuesday after the first Monday in January, 1953. He was also, at the time, the duly selected nominee of the Democratic Party, not for any "vacancy in office" but for the six-year term which would begin the first Tuesday after the first Monday in January, 1953. His untimely death, therefore, created two vacancies, namely, a "vacancy in office" and a "vacancy in nomination" as the successful and unopposed nominee of the Democratic Party.
The "vacancy in office" for the unexpired term was filled by Your Excellency under the provisions of Section 100.111(1), Florida Statutes 1951, F.S.A., and Section 6, Article XVIII of the Florida Constitution, which provides for the Governor to fill a vacancy in an elective office for a term ending "the first Tuesday after the first Monday in January next after the election and qualification of a successor."
As to the "vacancy in nomination" for the six-year term, which was created by the death of the incumbent, it is plain that had Mr. Justice Chapman's term of office expired in January, 1955, rather than in January, 1953, the power of the Governor to fill the vacancy in office would have authorized an appointment to extend only to the first Tuesday after the first Monday in January, 1953; and that it would have been the Governor's duty, by virtue of the provisions of Section 100.111(2)(c), Florida Statutes 1951, F.S.A., to call a "Special primary election" open to all recognized political parties in the State for the purpose of nominating candidates to be voted on in the general election of November, 1952, to fill the balance of the unexpired term beginning on the first Tuesday after the first Monday in January, 1953, and ending on the first Tuesday after the first Monday in 1955.
But as has been noticed, the above situation is not present in this case. There is no "vacancy in office" for any portion of a term extending beyond the first Tuesday after the first Monday in January, 1953. There is only a "vacancy in nomination," and that solely as to a nominee of the Democratic Party.
A situation similar to the one before us now arose in 1930 in State ex rel. Chamberlin v. Tyler, 100 Fla. 1112, 130 So. 721. The only real difference between the applicable primary and general election laws as they existed in 1930 and Section 100.111 (2)(c), Florida Statutes 1951, F.S.A., is that Section 14, Chapter 13761, Acts of 1929, the then applicable law, provided for the filling of a "vacancy in nomination" by the County Executive Committee of a political party where the nomination of a county office was involved, and by the State Executive Committee where the "vacancy in nomination" was in respect to a state office.
In the case which arose as an original proceeding in this court a writ of mandamus was sought to command the County Commissioners of Volusia County to place the name of the relator upon the official election ballot as the nominee of the Republican Party for the office of member of the Board of Public Instruction, upon the following factual situation: The Republican Party had held a primary election pursuant to law, in which there was no candidate for nomination to the office involved. After the primary election but before the general election, the Republican Executive Committee of the county attempted to designate the relator as the party nominee, pursuant to Section 14 of Chapter 13761, Acts of 1929, to fill a supposed "vacancy in nomination". It is plain that had there been a "vacancy in nomination" the County Republican Executive Committee would have had full and complete authority to select a nominee to fill such "vacancy in nomination". It was urged by the relator that because no candidate had been selected by the Republican Party at the primary, a "vacancy in nomination" existed within the meaning of the applicable statute, and that the County Executive Committee of the Republican Party had the power to fill it.
It was urged on behalf of the respondents that "no vacancy in nomination" could exist within the contemplation of the statute, unless a nominee had been selected in the regular primary election, and for one of the assigned reasons was no longer the nominee of the Party.
This Court speaking through the then Justice Strum, later United States District Judge for the Southern District of Florida, and now Judge of the United States Circuit Court of Appeals for the Fifth Circuit, in a unanimous opinion in plain, clear, and unambiguous language, said [ 100 Fla. 1112, 130 So. 724.]:
"A 'vacancy in nomination' is to be distinguished from a failure or omission to nominate at the primaries. There can be no 'vacancy in a nomination' until there has first been a nomination. When no nomination has been made, there may be a vacancy on the party ticket for the general election, but there is no vacancy 'in any nomination,' for there has been no nomination. The statute does not provide that, 'if for any cause there is a failure or omission by any political party to designate a nominee in the primary,' then the executive committee may designate a nominee. If such had been the legislative intent, it would have been very easy to so provide. * * * The language of our statute is that the executive committee may designate the nominee when 'for any cause there is a vacancy in any nomination' — not 'when there has been no nomination,' nor 'where no person shall offer himself as a candidate in the primary.'
"We must construe the statutory language as we find it. Doing so, we hold that the phrase found in section 14 of chapter 13761, supra, 'or if for any cause there is a vacancy in any nomination,' does not authorize a party executive committee to make an original nomination. The authority of the party executive committee to nominate under that statute is contingent upon a prior primary nomination followed by a vacancy in that nomination. Where, as here, a primary has been held in which there were no candidates for nomination for the office in question, the condition of the statute has not been fulfilled, and the executive committee is without authority to act under the statute in question. No 'vacancy in any nomination' has occurred here. The situation is that there has been no nomination. * * *"
It appears, therefore, that the question as to what facts and circumstances create, or do not create, "a vacancy in nomination" of a political party in this state has been well settled for more than 20 years.
The holding in State ex rel. Chamberlin v. Tyler, supra, has been cited with approval and reaffirmed by this Court in the case of State ex rel. Barnett v. Gray, 1932, 107 Fla. 73, 144 So. 349, in an opinion written by the then Justice Whitfield and concurred in by the then Justices Buford, Brown and Davis, and in the case of State ex rel. Summer v. Mitchell, 1935, 118 Fla. 513, 159 So. 775, in a unanimous opinion by the then Chief Justice Whitfield and concurred in by Mr. Justice Terrell and the then Justices Davis, Ellis and Buford. It may be well to note that the then Justices Whitfield, Brown, Davis, Ellis and Buford are no longer members of this Court; Justices Whitfield, Brown, Davis and Ellis having died, and Justice Buford having retired. These opinions were written or concurred in by eminent and highly respected jurists, who have left their indelible impression upon the history of our times, long before the present controversy arose. It thus appears that there is nothing new, novel or uncertain about the meaning of the words "vacancy in nomination" of a political party.
From the authorities we have cited, we reach the conclusion that the Election Code of 1951 places upon you the duty of calling a "Special primary election" to fill the "vacancy in nomination" caused by the death of the duly selected nominee of the Democratic Party for the office of Justice of the Supreme Court for the full six-year term beginning on the first Tuesday after the first Monday in January, 1953.
Inasmuch as your authority to call a "Special primary election" to fill a "vacancy in nomination" must necessarily be predicated upon the existence of such a vacancy, and inasmuch as there was and is no "vacancy in nomination" in the Republican Party for the office of Justice of the Supreme Court of Florida, it follows that you have no duty or authority to call a "Special primary election" of the Republican Party to fill a "vacancy in nomination" which does not exist.
Respectfully submitted,
SEBRING Chief Justice. THOMAS ROBERTS MATHEWS Justices.