I am unable to concur with the views expressed by a majority of the Court in the opinion prepared pursuant to rehearing. I adhere to the views expressed in my special concurring opinion filed herein with the original opinion. I agree to what is said in the opinion prepared pursuant to rehearing except that I cannot agree *Page 258 with the view that the city Registration Books may, at this late day after the recall petitions have been circulated and returned, be now corrected by the Clerk so as to make them show the names of the registered voters of Miami. The record shows that for more than twelve years there has been no pretense of keeping the Registration Books in the manner required by law. The record shows that the Clerk does not know and has no way of ascertaining what names should be stricken from the Registration Books; that if he attempts to correct the books he must rely on private memoranda made by a third party which has no evidentiary value. Even if the maker of that memoranda is available, such information as he could give the Clerk would be hearsay.
As stated in the majority opinion, the ordinance requires that whenever it should "come to the knowledge of the supervisor 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 is my view that the recall statute contemplates that the City Registration Book as it exists at the time of the circulation of and certainly at the time of the return to theClerk of the recall petitions shall be the exclusive controlling evidence of the sufficiency of the number of names on such petitions. If the Registration Books did not truly show the number of registered voters in the City of Miami at the time the affidavits and applications for recall petitions *Page 259 were filed, such Registration Books should have then been immediately corrected so as to truly show what they as public records purported to show, to the end that proponents and opponents of the recall would be advised by the record the minimum number of names required to authorize the calling of the Election. Without this, there existed no record by which the number of names required could be ascertained. See State v. Russell, 124 Wis. 548, 102 N.W. 1052.
The statute required the number of names to be 15% of the total number of names of registered voters as shown by the Registration Books of the City and did not authorize the calling of an election upon petitions being filed bearing the names of 15% of the total number of Registered voters of the City as might be shown by revising the Registration Books after the petitions should have been returned. Such provision would have opened the door wide for fraud and uncertainty and an adjudication that such procedure may be followed will have no less effect. Whether or not the fraud will in fact be practiced is not controlling. The fact that opportunity for the commission of fraud is afforded is sufficient to condemn such course.
If there is merit in the effort for recall, there can be no good reason why the proceedings to that end should not be regular in all respects and in conformity with the statutes. Everybody appears to agree that the proceedings have been markedly irregular and without conformity with statutory provisions relative to such matters.
ELLIS, C.J., concurs. *Page 260