The appeal in this case was taken May 10, 1938, from an order and decree entered by one of the Judges of the Circuit Court for Dade County, in Chancery sitting, denying a temporary injunction prayed for by the appellant, Williams, said order being dated May 9, 1938. The appeal from said order, together with transcript of record, was filed in this Court on May 11, 1938. The prayer for injunction was predicated upon the allegations in a bill in equity which had been filed by the appellant in the court below and prayed that the defendant, Kelly, as City Clerk of the City of Miami, be enjoined until the further order of the court from certifying that "the purported recall petition" had been or was signed by at least fifteen per cent. of the total number of registered voters of the said city, as shown by the city registration books of said city, and from certifying that the said purported recall petition had been signed by the requisite number of registered voters of said city, and from certifying that said purported *Page 252 recall petition was sufficient," and from taking any step or action of any kind pertaining to the said purported recall petition; and that upon final hearing the temporary restraining order be made permanent. From the order denying said temporary injunction as above prayed from this appeal, as above stated, was taken and lodged in this Court on May 11th. On that date, after notice and hearing accorded both appellant and appellees, this Court, in order to preserve the status quo until the appeal could be decided, granted a constitutional writ preventing the said city clerk from taking any of the steps thus sought to be enjoined, concerning or pertaining to said recall petition, "until the further order of this Court." Three days later this Court rendered its opinion and decision and reversed the order denying the temporary injunction and remanded the cause for "appropriate proceedings," meaning of course proceedings not inconsistent with the views expressed in the opinion.
In the Court's opinion thus rendered, the questions raised by the appeal, which the Court deemed material, were all discussed. After due consideration upon rehearing of all the questions raised and ably argued by counsel for the respective parties, the Court does not see fit to depart from the opinion already rendered, but as the parties on both sides have asked for a rehearing, and have apparently placed different constructions upon the meaning of the language used in the opinion with regard to the proper test for correctly ascertaining the registered voters of the city by the clerk, and also as to whether or not the constitutional writ, commanding the clerk to take no further action pertaining to the recall proceedings, had been definitely set aside by the opinion and decision of the Court rendered May 14th, the Court has decided to restate its position so as to remove any misunderstanding. That part *Page 253 of the opinion which counsel deemed should be clarified by the Court on this rehearing, reads as follows:
"The statute provided that the recall petition `shall be signed by registered voters of the City to the number of at least fifteen per cent. (15%) of the total number of registered voters of the City as shown by the City registration books.'"
"Nothing in the terms or intendments of the statute forbid the use of card indices or other appropriate means or instrumentalities for correctly ascertaining the `registered voters of the City'; but the ultimate factor to be used in determining whether recall petitions are signed by at least fifteen per cent. (15%) of the total number of the registered voters of the City is `the total number of registered voters of the City as shown by the City registration books.' Of course, the City registration books must be so kept as to show only the qualified registered voters of the City at the time such registration books are being used as the statutory means to show `the total number of registered voters of the City.'
"In further proceedings it may be shown whether, in this respect, the statute has been obeyed as it must be.
"It does not appear that a more extended discussion of the allegations of the bill of complaint is essential to the further progress of this cause.
"The order appealed from is reversed and the cause is remanded for appropriate proceedings."
It appears from the allegations of the bill of complaint filed by the appellant, Williams, that the total number of registered voters of the city as shown by the registration books was in excess of fifty-five thousand, fifteen per cent. of which would be eight thousand, two hundred and fifty; whereas the clerk had found that the petition had been *Page 254 signed by five thousand, two hundred and sixty persons, as shown by his card index of voters and the purported typewritten copies of the registration books, which he testified showed that there were only thirty-six thousand, three hundred and fifty-seven qualified electors of the City of Miami.
As we stated in our former opinion, there is nothing in the statute (the Charter Act) which forbids the use by the clerk of card indices as a means or aid in carrying out his statutory duty of correctly ascertaining the registered voters of the city, but it is perfectly apparent that such card indices are mere private records; that they are not mentioned in or required to be kept by the statute, and are not, therefore, public records upon which official action can be based. On the other hand, the statute plainly says that in ascertaining whether a petition for recall has been signed by the requisite proportion of registered voters, it must be ascertained and certified by the clerk that the petition has been signed by "at least fifteen per cent. of the total number of registered voters of the city" as shown by the registration books." This language is perfectly plain, and is clearly mandatory, and therefore we stated in our previous opinion that "the ultimate factor to be used in determining whether recall petitions are signed by at least fifteen per cent. of the total number of registered voters of the City is the total number of registered voters of the City as shown by the City registration books"; and we observed that the registration books "must be so kept as to show only the qualified registered voters of the city at the time such registration books are being used as the statutory means to show the total number of registered voters of the City."
It appears that the City ordinance required that the clerk should be the supervisor of registration and the custodian of the registration book for each election precinct, and that "whenever it should come to the knowledge of the supervisor *Page 255 of registration that any elector has died or become disqualified to vote for any reason whatever, or that his right to vote has become affected in any way since his registration, it shall be the duty of the supervisor of registration to make a note of such fact on the proper registration book opposite the name of such person, and to mark off the names of such persons as have so ceased to be qualified electors by running a pen through the names of such persons on such books, and said supervisor of registration shall carefully note on said books the date of such erasure and the cause thereof."
It appears from allegations of the bill and from the testimony of the clerk taken at the time of hearing on application for temporary injunction that this provision, as to the striking from the registration books of the names of voters who have died or become disqualified, as set forth in the above ordinance, has never been complied with by the present clerk or his predecessors, but that the custom and practice has been to keep track of the disqualification of voters by the use of a card index system. There was nothing in the statute to prevent the use of a card index system for the convenience of the clerk as supervisor of registration in carrying out the plain intent and command of the ordinance, but the keeping of such card index system did not relieve the supervisor of registration from the duty of carrying out the command of said ordinance with regard to the striking of names from the registration books, so that the registration books themselves would correctly reflect the number of the qualified and registered voters of the city. But as the statute, the Charter Act of the City, requires the clerk to ascertain the required proportion of the names signing a recall petition to be based upon "the total number of registered voters of the City as shown by the registration books," the card index system cannot be used *Page 256 as such basis. As we stated in our former opinion "the City registration books must be so kept as to show only the qualified registered voters of the City at the time such registration books are being used as the statutory means to show the total number of registered voters of the City." It follows, therefore, that although the registration books as they stood at the time this bill was filed may show the names of all the qualified voters of the City, it appears from the testimony of the clerk that no names have been stricken from said books since 1925, and that according to his card index system there are somewhere in the neighborhood of nineteen thousand names appearing on the registration books who have died or moved away or otherwise become disqualified.
In our former opinion we also stated that: "In further proceedings it may be shown whether, in this respect, the statute has been observed as it must be."
In making this statement the Court contemplated that the clerk should correct the registration books by striking therefrom in the manner required by the controlling ordinance, those names which are commanded to be stricken by the City ordinance so that said books shall show as of the date the petition was presented to the Clerk for Certification, only the qualified registered voters of the City at the time such registration books are being used as a statutory means showing "the total number of registered voters of the City."
Thus the language of the Court in its former opinion contemplated that the court below should grant the temporary injunction as prayed for by the appellant to the extent of restraining the clerk from certifying the recall petition until he shall have corrected the registration books as above outlined, in such form and manner as to comply with the City ordinance above referred to, so that the registration *Page 257 books will themselves show only the qualified registered votersof the City, in order that such registration books might then be fairly and correctly used as the statutory means of ascertaining whether or not the petitions and supplemental petitions for recall, referred to in our previous opinion, were signed by the requisite fifteen per cent. of the "total number of registered voters of the City as shown by the City registration books." Until this is done, the clerk cannot lawfully make the certificate as provided for by the plain language of the statute.
In reversing the order denying the temporary injunction and remanding the cause for appropriate proceedings, the Court impliedly vacated the constitutional writ which had been granted on May 11th to hold the case in status quo until this Court could render its decision. But inasmuch as there has been some misunderstanding on this point, the Court does now expressly adjudge that the said constitutional writ issued herein on May 11th is hereby set aside, and that the previous judgment of this Court that the order appealed from be reversed and the cause remanded for appropriate proceedings is hereby, on this rehearing, reaffirmed, with instructions that the mandate go down to the trial court forthwith.
Original judgment of reversal and remandment for further appropriate proceedings, reaffirmed on rehearing.
WHITFIELD, BROWN and CHAPMAN, J.J., concur.
ELLIS, C.J., and BUFORD, J., dissent.