The petition for the alternative writ of mandamus in this case alleges that in the primary election held in Duval County on June 5, 1934, there were eight candidates for member of State Executive Committee, of the Democratic Party, who duly qualified and their names were printed on the ballots. The two condidates receiving the largest number of votes were Albert E. Barrs and Ion L. Farris, the former receiving more votes than the latter, but neither Barrs nor Farris received a majority of all the votes *Page 581 cast. The relator prayed for an alternative writ of mandamus, directed to the members of the Board of County Commissioners of Duval County, commanding them to provide ballots to be issued in the primary election of the Democratic party to be held on June 26, 1934, upon which ballots shall be printed the name of said Albert E. Barrs and relator as candidates for member of the State Executive Committee of the Democratic Party for Duval County. Alternative writ was issued by this Court as prayed and the respondents have filed a motion to quash said writ upon the ground that it affirmatively appears from the allegations therein contained that Albert E. Barrs was dulyelected in the primary election of the Democratic Party held on June 5, 1934, and that the alternative writ fails to show any breach of duty imposed by law on respondents.
The question thus raised has been ruled upon adversely to the contentions of the relator, both by the present Attorney General, Hon. CARY D. LANDIS, and by his predecessor, Hon. FRED H. DAVIS, the present Chief Justice of this Court, in an opinion written by the latter on June 9, 1930, and appearing in the Biennial Report of the Attorney General for the years 1929-1930, at page 319.
We have not before us a copy of the opinion of the present Attorney General, but we have the printed record of the opinion of his predecessor, which reads in part as follows:
"June 9, 1930.
"Dear Sir:
"Complying with request for my opinion as to whether or not Section 3 of Chapter 13761, Acts of 1929, contemplates the election of members of the party Executive Committee therein mentioned by a plurality or majority vote, I beg to advise as follows: *Page 582
"Section 361 of the Compiled General Laws, as amended by Section 3 of Chapter 13761, Acts of 1929, provides for State, County and Congressional Executive Committee members and refers to their election in the Primary (note the use of the singular word Primary) held in the year 1914 and every two years thereafter. At the time Section 361 of the Compiled General Laws was originally enacted, only one Primary was contemplated by the law. In reenacting Section 361 as a part of the 1929 Primary law, the Legislature uses the word "Primary" and not the word "Primaries," as it evidently would have done had the statute contemplated that candidates for election to Committee membership should be subject to both the first and second Primary, which were brought back into effect by the 1929 Act. Section 18 of Chapter 13761, Acts of 1929, provides that the election required by the 1929 Act shall be held and conducted in accordance with the General election laws of the State of Florida.
"Section 3 of Chapter 13761 provides for theelection, not nomination, of members of State, County and Congressional Committees. Section 14 of the Act, in requiring that candidates must receive a majority vote in the first Primary or run over again in the second Primary, makes particular reference to nominated and not elected candidates. Section 347 of the Compiled General Laws, which is a part of the General Election laws of the State provides that where a person is to be elected, that person who shall receive the highest number of votes cast for an office shall be deemed elected to such office.
"Construing Section 347 of the Compiled General Laws in connection with Section 361 of the Compiled General Laws as amended by Section 3 of Chapter 13761, Acts of 1929, as well as Section 18 of the same Act, it appears to *Page 583 me that insofar as members of State, County and Congressional Executive Committee of political parties are concerned, the person who shall receive the highest number of votes cast for such position in the first primary are to be deemedelected as Committee members, and consequently no second primary is necessary, even though the person who receives the highest number of votes for such Committee position did not receive a majority of the votes cast therefor.
"Both the Chairman of the Democratic Executive Committee of the State of Florida and the Chairman of the Republican Executive Committee of the State of Florida, these being the only political parties at present governed by the Florida Primary law, take the position that a plurality vote in the first Primary is all that is required to elect members of party Executive Committees under the 1929 Primary law. I consequently see no reason why their opinions in the matter should not be given the great weight and respect to which they are entitled as indicated by the Supreme Court in a recent case where the Court held that a practical construction placed upon a statute by those who were affected by it, should be followed where not wholly inconsistent with an otherwise clearly expressed intent. (Italics supplied.)
In the case of State, ex rel. Landis, Attorney General, v. Pryor, 151 So. 392, which was an action of quo warranto against R. E. L. Pryor to determine by what authority he claimed the right to exercise the office and powers of member and Chairman of the Republican Executive Committee of the State of Florida. In the opinion in that case, which was written by Mr. Justice ELLIS, attention is directed to the fact, among others, that the plea of the respondent alleged that in the primary election he had received a plurality of the votes cast for the position he sought. This fact is *Page 584 not emphasized in the opinion, but the demurrer to the respondent's plea, alleging this fact among others, was overruled and the sufficiency of the plea upheld. The last paragraph of the opinion closes with this statement:
"The applicability of Section 8180, Comp. Gen. Laws 1927, is not apparent. That section prescribes a penalty for willfully violating any provision of the primary law and is a criminal statute. The penalties and forfeitures prescribed follow upon a conviction of the offense. Under Section 361, Comp. Gen. Laws 1927, the selection of a committeeman at a primary election constitutes an election of such person and not a nomination."
While the question here presented is not free from difficulty, we are disposed to follow the reasoning in the above quoted opinion of the then Attorney General and to hold that under the facts alleged in the petition and in the alternative writ, Mr. Barrs was duly elected as the Duval County member of the State Democratic Executive Committee in the primary election held on June 5th and therefore the motion to quash the alternative writ should be granted.
ELLIS, J., and JOHNSON, Circuit Judge, concur.
WHITFIELD, TERRELL and BUFORD, J. J., dissent.