Former Governor William B. Ross died October 2, 1924. The situation presented in connection with his successor was almost identical with the situation in this case and under substantially the same laws except the Soldier's Vote Act which does not change the principles or facts involved in so far as discussed in this opinion. Former Attorney General Howell rendered an opinion on October 9, 1924 (Reports and Official Opinions of Attorney General, 1923-1924, p. 222) as to what should be done to fill the vacancy. He held: First, as we now hold, — that under existing statutes original nominations cannot be made by state committees; second, that in emergencies such as existing at that time and was true this year, the time for filing nomination papers should be held not mandatory but directory, that is to say immaterial, provided only that opportunity be given to the people to vote (See 29 C.J.S. 208); third, that where a death of a state official occurs after the holding of the primaries (in a year when state officials are not ordinarily elected) and more than 25 days before the general election (Sec. 36-101 Rev. St. 1931) the major parties may hold a convention and thus lawfully nominate a candidate *Page 415 to fill the vacancy caused by the death of the state official. This opinion was accepted as correct and acted upon by both major political parties and a Governor was elected that year to fill the vacancy in accordance with the proceedings so had.
The present Attorney General agrees only with the first point above mentioned, and believes that the precedent established as to the other two points above mentioned by his predecessor in office, and which has stood unchallenged for twenty years, should not be followed. In other words, he contends that the time for filing nomination papers is mandatory and cannot be deviated from even on special occasions, and that such nomination papers must in any event be filed not less than 40 days previous to the election as provided by Sec. 36-515, Rev. St. 1931, which time is the same as the time which was fixed by statute in force in 1924; and he further contends that the major political parties cannot, on occasions like the present, nominate any person to office except only in pursuance of the primary election law; that the convention system cannot be used by them on an occasion like this, but that the law concerning conventions for such occasion is confined to minor political parties casting less than 10 per cent of the votes.
It is not necessary in this case for us to pass upon these contentions, but I think we should point out, at least for the benefit of the legislature, the conclusions to be drawn therefrom, if correct.
The election in the year 1924 was on November 4. The conventions by the major political parties were held on October 14, so that the nomination papers could not have been filed before that day, which was only 21 days before the general election. If, accordingly, former Attorney General Howell was wrong *Page 416 and the present Attorney General is right, Nellie Tayloe Ross should not have been elected Governor during that year, but the Secretary of State should have continued to perform the duties of that office. What happened then may happen again.
Again, if the time for filing nomination papers is mandatory as contended, it is clear that the provision of Sec. 36-101 that a vacancy occurring more than 25 days before a general election shall be filled at that election is, as to the 25 days, wholly meaningless, although that provision has never been, at least expressly, repealed. If it is meaningless, it ought not to be permitted to remain a part of our statutes.
Furthermore, even if it is true, as here contended, that the time for filing nomination papers is always mandatory, yet since the statute provides that a vacancy in a state office occurring before a general election shall be filled at that election, and since it is conceded that minor parties may nominate candidates by convention, and since the statute makes provisions for independents to file nomination papers (Sec. 36-510, Rev. St. 1931), and since nomination papers for a state office to be voted for at a primary election must be filed 30 days before such election as provided by Sec. 36-605, Rev. St. 1931 — assuming that the 40 days mentioned in Sec. 36-532, Rev. St. 1931, does not apply — then, if a vacancy in the office of Governor or other state office should occur in years similar to this in the period extending from 29 days prior to the primary election to a date which is 40 days prior to a general election — comprising a period of two months or more — it follows that if the present contention is correct and former Attorney General Howell was wrong, minor parties and independents could, during this period of about two months, have the names of their candidates placed on the election ballots to fill *Page 417 the vacancy, but the major political parties could not do so, but would be wholly excluded. Even if it be assumed that political committees could file a nomination for such vacancy occurring before the primary election, the period above mentioned would be reduced by only 14 days (Sec. 36-630, Rev. St. 1931, as amended). A vacancy during such period might not happen very often, yet the recent sad and sudden death of the late Secretary of State reminds us that it may happen.
It would, accordingly, seem that both major political parties are equally interested in having the coming legislature scrutinize the election laws of the State, to make such amendments and corrections as it may deem best, so as to leave no room hereafter for conflicting opinions.