I am unable to agree with all that is said in the opinion by Mr. Chief Justice WHITFIELD or what is said in the opinion prepared by Mr. Justice DAVIS, or what is said in the opinion prepared by Mr. Justice BROWN. *Page 43
I am convinced that we committed error in the construction of paragraph 3 of Sec. 14, Chapter 13,761, Acts of 1929, when we construed the language "for any cause there is a vacancy in any nomination" to apply only to cases where there had been a nomination in a General Primary and for some reason the nomination thereafter and prior to the General Election became vacant. See State, ex rel. Chamberlin, v. Tyler, 100 Fla. 1112,130 So. 721; Moore v. Board of County Commissioners, Leon County, 96 Fla. 519, 118 So. 476; and State, ex rel. Summer, v. Mitchell, 118 Fla. 513, 159 So. 775.
I think that it was the legislative intent by the enactment of Chapter 13761 to provide for the nomination of party candidates under all conditions and the language in Section 14 of that chapter amending Section 354 R.G.S., 411 C.G.L.: "In the event of the death, resignation or removal of any person nominated for office in a primary election, between such primary election and the ensuing general election, or if for any cause there is a vacancy in any nomination and no method is otherwise provided herein for filling such vacancy, then and in that event the procedure shall be the same as is hereinbefore provided for the nomination of candidates in case no candidate receives a majority of the votes cast in the primary election and all such nominations shall have the same force and effect and shall entitle the nominees to all the rights and privileges that would accrue to them as if they had been nominated in the regular primary election," was intended to confer upon the respective governing committees the power to make a nomination of a party candidate to be voted for in the General Election whenever it shall appear that an elective Federal, State or county officer would be required to be elected in the ensuing General *Page 44 Election and no person had been nominated in the primary as the party candidate for that office.
My colleagues, however, do not agree with me in this regard and, therefore, the law is established contrary to the view which I now entertain and such view must yield to the construction of the statute as established by the enunciations in the cited opinions.
In State, ex rel. Summer, v. Mitchell, supra, it was held:
"Where, however, by reason of the death of an elective officer during a term and after a primary has already been held in a general election year, but before the date of the ensuing general election, no nomination can be made according to the usual lawsgoverning primary elections, the statutory limitations as toprinting names on the general election ballot does notnecessarily apply. Therefore, the political parties themselves, or their official representative committees may exercise their inherent party prerogative of selecting a candidate and certifying his name to be printed on the general election ballot where no intendment of the primary election law is to be circumvented or violated by so doing. And under Chapter 14657, Acts 1931, supra, nominees so selected, being nominees in fact of a party entitled to make and certify nominations of candidates for printing in general election ballots, are entitled to have their names printed on the general election ballots as candidates `Put in nomination' by the appropriate party executive committee despite the fact that they may not be entitled to claim title as nominees under the special statutory prerogatives of an official primary or committee nominee as the latter class of nominees is described in the terms of Section 14 of Chapter 13761, Acts 1929." (Emphasis supplied.)
*Page 45And, further, in that opinion we said:
"But when there has been no candidate nominated as the result of a primary election and it is clearly demonstrated that underno circumstances can there be a primary election nominationlegally made, because of the occurrence of a vacancy in officesubsequent to a primary and prior to the succeeding generalelection, it cannot be said that the terms of Chapter 12038,supra, should be so strictly construed as to inhibit the exercise of a party's traditional powers to nominate a candidate according to its own rules and regulations and have that candidate accepted and recognized as such for the purpose of having his name printed on the ballot under that Act, although his status as a nominee under such circumstances is not that of one having an exclusive right to have his name appear printed on the ballots of the general election. This is necessarily the rule because we can find nothing in our system of primary election laws which was intended to forbid customary party activities in cases where the subject matter is neither expressly nor impliedly regulated by statutory provisions."
So it is that to hold that a special primary election may be called by the governing committee of a recognized political party and thereupon be required to be held under the law applicable to general primary elections is to positively overrule what was said as above quoted in the Mitchell case.
It must also necessarily follow that: "The State Democratic Executive Committee could have called one set of special primaries to be held for the nomination of one candidate for the United States Senate in September and another set of special primaries for the nomination of another candidate for the United States Senate in October, and the State Republican Executive Committee could have likewise called two sets of special primaries for the nomination of *Page 46 two candidates for the United States Senate and the Secretary of State could be by mandamus coerced to function in regard to each of those four special primary elections in the manner in which he is sought to be coerced here, and then, if we happened to have some other political party which had shown sufficient voting strength to be recognized as a political party, such other political party through its State Executive Committee could call some additional Special Primaries to nominate its candidates and require same to be held at public expense." This conclusion was approved by Attorneys for the Relators at the bar of this Court.
Under the provisions of Chapter 6469, Acts of 1913, the several party committees are endowed with all the powers usually exercised by such committees. It must be conceded that the calling of a Special Primary election to nominate a party candidate for office was a power that had usually been exercised by such committee prior to the enactment of Chapter 6469, supra, and is within the inherent power of such committee unless such power is abrogated by statute. So we must now determine whether we will adhere to the enunciation contained in the Mitchell case hereinbefore quoted to the effect "that under no circumstances can there be a primary election nomination legally made because of the occurrence of a vacancy in office subsequent to a primary and prior to the succeeding general election," or, shall we overrule that holding and now hold that a State Executive Committee of a recognized political party may call a special primary under such circumstances as here exist and upon such special primary election having been called by such committee it becomes the duty of the State and county officers to function in all respects in connection with such special primary election in the same manner and to *Page 47 the same extent that they would function in connection with the holding and conducting of a general primary election specifically provided for in the statutes.
My view is that to hold the latter, and this we must do or not issue the writ, we must read and write into the statutes language which is not there either in terms or by implication. We must escape terming this "judicial legislation" by calling it "judicial interpretation" of the legal right of the State under existing statutes to regulate and police all primary elections, whether general or special, and whether held under the mandatory provisions of the statutes, or held pursuant to call therefor made by the governing committee of any political party recognized as such under the laws of this State and when made under conditions under which such Committees may lawfully call a special primary election to be held for the nomination of its candidates to be voted for in the general election.
The determination of the question does not involve the rights of life, liberty, property or the pursuit of happiness. It involves only the question of procedure as to how a party candidate may be nominated by the Democratic Party in Florida.
I am convinced that the usefulness of this Court, the respect in which it may be held and the confidence reposed in it by the people of the State, and the welfare of the State at large may be better served by my yielding some of my personal views in regard to the construction to be given existing statutes and joining with my colleagues who have approved the opinion which will mean ultimately the issuance of a peremptory writ of mandamus, unless the Secretary of State should make his return alleging compliance with the alternative writ, than by my adhering to my personal views and producing an equal division of the Court *Page 48 and thereby obstructing the procedure which has been undertaken, and thrusting back on the shoulders of the State Democratic Executive Committee the duty of nominating candidates for the Democratic Party to be voted for for the offices of United States Senator in the ensuing general election.
Therefore, I join in the Order issuing alternative writ of mandamus.