The statement of the case before us is presented in the opinion prepared by Mr. Justice BROWN.
We can not concur in the conclusion reached by Mr. Justice BROWN. Sec. 299, R. G. S., was in part as follows:
"Nomination to be Made in Primary Election. — The nomination of all candidates for all elective State, Congressional and County offices, for United States Senator, and for the election of members of the State, Congressional and County Executive committees, by all political parties as defined by this Article, shall be made in the manner provided in this Article, and not otherwise."
This section was not changed by Chapter 13761, Acts of 1929.
Section 305, R. G. S., which was Section 7 of Chapter 6469, Acts of 1913, provides as follows:
"Organization of Committees; Powers, Proxies allowed. *Page 578 — The State Executive Committee shall consist of one member from each county in the State, who shall be elected for two years at the primary held in the year 1914, and every two years thereafter. The members of said Executive committee shall, within thirty days after their election, meet and organize by electing from among their number a chairman and such other officers as they may deem necessary or expedient. The outgoing Chairman of the State Executive committee of each party shall, not less than ten days before the first meeting, notify each newly elected member of said committee of the time and place of said meeting."
Now, the purpose of Chapter 6469, supra, was to effectuate a nomination or election, or, in other words, the selections of the party in a single election instead of in a primary consisting of two elections.
When Chapter 6469, supra, was amended by Chapter 13761, Acts of 1929, the language as above quoted from Section 305, R. G. S., was reenacted without change.
It is clear from the language used in Chapter 6469 that the word "nomination" was meant to include and mean "election" where applicable as such. Otherwise, there is no provision in the Act for qualification, placing the names on ticket or for canvass of ballots and return of result of election of candidates for election to the positions of committeemen. See Sec. 326, R. G. S., 383 C. G. L.; 351 R. G. S., 408 C. G. L.; Sec. 354, R G. S., 411 C. G. L. See also Sec. 12, Chapter 13761, supra, which is identical in this respect with Sec. 351, R. G. S.
Section 18 of Chapter 13761, supra, provides as follows:
"The primary election required by this Act, except as herein otherwise provided, shall be held and conducted in accordance with the provisions of Article 1, Chapter 1, of Title 4, First Division of Compiled General Laws of Florida, *Page 579 1927; provided, however, that County Commissioners and members of the Board of Public Instruction shall be nominated by the several districts of the county instead of by the county at large."
It is contended that Section 17, Chapter 13761,supra, is conclusive of the legislative intent that committeemen should be elected in the first primary election. We do not think it has any reference to election or selection of committeemen. The purpose of this section was to require that all those things theretofore required to be done antecedent or subsequent to the primary should be done antecedent or subsequent to the first primary election, unless otherwise provided by the Act. It had no relation to the vote required to effectuate the party selection.
Now, Section 356, R. G. S., 412 C. G. L., provides:
"In the event more than one candidate is to be nominated for the same office and there are more candidates than should be nominated therefor, there shall be as many groups of candidates for that particular office as there are candidates to be nominated, and each candidate for such office, in addition to the sworn statement required by Sec. 326, shall indicate therein the group in which he desires his name to appear on the ballot, and said groups shall be numerically designated; Provided, however, that candidates for delegates to the national conventions shall not be nominated by groups, but by a plurality vote."
This was not changed by Chapter 13761, supra.
So it is that it appears to us quite clear that Chapter 13761 provided for a second or run-off election to take the place of the second-choice vote which had been provided for under Chapter 6469, Acts of 1913, and nothing more.
Under the provisions of Chapter 6469, supra, if there were more than two candidates for the position of State committeeman *Page 580 and neither received a majority of the first-choice votes, then the second-choice votes which appeared on ballots where first-choice vote was for one not one of the two high men but which second-choice vote was for one of the two high men, were tabulated and counted as a vote for the candidate designated and thus, by a combination of first and second-choice votes cast respectively for the two high men, the result was determined.
The legislative Act of 1929 indicates no intent on the part of the Legislature to direct the election of committeemen by first-choice or first-election votes, unless a majority vote is reflected in such first election.
It is insisted that to issue the alternative writ of mandamus will cause confusion. That is true, but not to issue it will deprive the people of the sacred right to select their political party representatives in the manner provided by law. The question has been presented to us in orderly procedure. It is our duty to enunciate the law as we find it.
Motion to quash should be denied and the cause dismissed without prejudice.
WHITFIELD and TERRELL, J. J., concur.
ELLIS and BROWN, J. J., and JOHNSON, Circuit Judge, dissent.
DAVIS, C. J., disqualified.