PER CURIAM.
A petition was presented to this court for an alternative writ of mandamus to require the Secretary of State to accept the oaths and filing fees tendered to him by the relators who desire to become candidates for nominations in a special primary election called by a party State executive committee to nominate party candidates to fill vacancies in the office of United States Senators from Florida, such vacancies having occurred too late for party candidates to be nominated in the general primary election held in June, 1936, and the Governor having issued "writs of election to fill such vacancies" at the next general election on November 3, 1936, pursuant to Article XVII of the Federal Constitution and Section 457 (392) C.G.L.
Four of the Justices of the Supreme Court concurred in ordering an alternative writ of mandamus to be issued as prayed by the petition. Two Justices dissented. Several opinions were filed giving the views of the Justices of the court upon the issue presented.
An alternative writ of mandamus was issued as prayed for, returnable July 30, 1936.
DAVIS, J.
Relators are each residents and citizens and qualified electors of the State of Florida and members of the Democratic Party of this State. The respondent is the duly elected, qualified and acting Secretary of State of the State of Florida.
Article 2, Chapter 1, Title IV, of the Compiled General Laws of Florida (Sections 299 to 362, both inclusive, Revised General Statutes of Florida), relates to and mandatorily requires the nomination of all candidates for elective State, Congressional and County offices, and for United States Senator, by political parties defined in said Article, to be made in primary elections to be held according to the regulating provisions of state law and not otherwise. Under Section 356 C.G.L., 300 R.G.S., the Democratic Party and the Republican Party having each polled the required percentage of the total vote cast at the 1932 General Election necessary to bring them within the terms of the primary election statutes are, at this time, the only political parties subject to the foregoing statutes. Other provisions of the primary laws constitute the Secretary of State the statutory filing officer to receive and file candidates' qualification papers in the case of any of the statutory primaries authorized to be held for the nomination of candidates for the office of United States Senator, or other elective state offices voted for in more than one county.
On May 8, 1936, the Honorable Park Trammell died, leaving a vacancy in the office of junior United States Senator from Florida. On June 17, 1936, the Honorable Duncan U. Fletcher died, leaving a vacancy in the office of senior United States Senator from Florida. The laws of Florida required the holding of general primary elections in the year 1936 consisting of a first primary held June 2, 1936, and a second primary held June 23, 1936. Under the circumstances related, the death of the Honorable Park Trammell and the death of the Honorable Duncan U. Fletcher, each occurred at a time when it was too late under the laws of the State of Florida for a candidate for the Democratic nomination for the vacant offices of the United States Senate to become candidate for such nomination by the Democratic Party in the general primary elections heretofore held June 2nd and June 23rd, 1936, respectively.
In consequence of the situation aforesaid, the State Democratic Executive Committee, at a meeting duly convened and held on June 30, 1936, adopted a resolution calling special primary elections to be held on August 11, 1936, and on September 1, 1936, respectively, for the purpose of nominating candidates of the Democratic Party to be voted upon in the general election in November, 1936, to succeed the Honorable Park Trammell and the Honorable Duncan U. Fletcher, pursuant to certain writs of election that had been issued by the Governor of the State in compliance with the 17th Amendment to the Federal Constitution. Such writs of election provide for choosing, at the November, 1936, General Election, two United States Senators to fill the respective vacancies caused by the aforesaid deaths of the two United States Senators from Florida.
Acting pursuant to the said resolution of the State Democratic Executive Committee, which had been duly certified to and filed with the Secretary of State, and proceeding according to law, as they each allege in their petition for mandamus to this Court, the several relators who brought this proceeding, each tendered to the respondent, Secretary of State, their filing fees of 3% of the annual salary of the office of United States Senator, and otherwise conformed to all other requirements of the statutes of the state essential to be complied with as a condition precedent to qualification as candidates for the Democratic nomination for the office of United States Senator to be voted on at the said primaries of August 11th and September 1, 1936.
It is duly alleged that each of the relators is legally qualified under the Constitution and laws of the State of Florida, and of the United States, to hold the office for which each relator desires to be nominated, and that each of them has filed with the respondent Secretary of State a proper oath to that effect, as provided by statute.
It is thereupon alleged that notwithstanding the matters and things aforesaid, all of which have been duly alleged in relators' petition for an alternative writ of mandamus, that respondent Secretary of State has declined and refuses to accept the filing fee and qualification oath tendered by each of the relators on the ground that there is no clear legal duty upon said respondent to accept such filing fees from relators, nor any proper legal function on respondent's part to participate in the performance of duties incident to the holding of special primary elections called solely upon the purported authority of a resolution of the State Democratic Executive Committee without there being any specific sanction of law to be found in the statutes authorizing the calling and holding of such special primary elections under the general primary laws of the state.
Because of the importance of the matter to the people of Florida and by reason of the grave doubts entertained by members of the Court as to the right of the relators to coerce the respondent in the particulars commanded in the proposed alternative writ sought, this Court adopted the strict procedure of the common law and issued its rule nisi in mandamus directed to the respondent, requiring him to show cause why the alternative writ of mandamus as prayed for should not be issued. Ferriss Extraordinary Legal Remedies, page 279. A motion to discharge the rule and a demurrer to the same raise the questions of law which have been argued at length before the Court en banc, and which will be hereinafter discussed.
The issuance of a rule nisi in a mandamus proceeding directed to a respondent requiring him to show caus e why an alternative writ prayed for should not be issued, is the procedure of the common law and is applicable in this state. 38 C.J. 908. While in ordinary cases the Florida courts have abandoned the rule nisi and have adopted the practice of issuing an alternative writ upon an ex parte hearing of a petition for such writ, yet in particular cases suggesting doubt as to the propriety of the court's acting at all in the special situation complained of, this Court adheres to the strict common law procedure of a rule nisi when it appears that such practice best serves the ends of justice by permitting interested parties other than the respondent to appear and be heard in opposition to the issuance of an alternative writ in a case where a mandamus may not be an appropriate remedy. The proper response to such a rule nisi is a motion to discharge or demurrer. Such was the procedure adopted and followed by the respondent in this case.
Sections 383, 385 and 386, C.G.L., 326, 328 and 329 R.G.S., require a candidate for nomination for the office of United States Senator in primary elections to file with the Secretary of State a qualification oath and to pay to him a prescribed qualification fee. According to the response to the rule nisi issued in this case, the reason advanced by the respondent for his refusal to comply with the terms of the aforesaid statutes in this particular instance is that there is no statute of the State of Florida authorizing the calling of special primary elections on dates specified solely by the State Democratic Executive Committee, nor any authority of statutory law sanctioning the holding of any such primary elections when called, and that therefore the ministerial duties imposed on the Secretary of State by these Sections must be restricted in their application to the regular statutory general primary elections required to be held in June of the General Election years pursuant to Section 2 of Chapter 13761, Laws of Florida, Acts of 1929.
In the case of State, ex rel. Summer, v. Mitchell, 118 Fla. 513, 150 Sou. Rep. 775, this Court distinguished between a vacancy in nomination and a vacancy in office insofar as the statutory power of a Democratic Committee to fill one or the other kinds of such vacancies was concerned. The holding in that case was, since the general primary laws of the state could not ex necessitate rei apply to and govern nominations to fill vacancies in office as distinguished from vacancies in nomination, in cases when the vacancy in office occurred too late to be filled by a nomination at one of the general primary elections provided by law, that choice as to the method of making a party nomination in such an emergency inherently devolved upon the appropriate Executive Committee and that therefore such appropriate Executive Committee of the political party affected was not without its ordinary party authority to nominate a candidate for the vacancy in office to be voted on at the next ensuing general election, even though no specific provisions of the primary statutes in terms purported to authorize such a course of action as would govern such a situation.
The mandamus prayed for in the present case is predicated upon the same rationale of decision.
Here the contention is, not that the State Democratic Executive Committee does not have the inherent party power to nominate Democratic candidates for the vacant offices of United States Senator, but that it has no choice of methods in doing so. That is to say, that it has no choice, through its own Executive Committee to take action providing for special primary elections to be called and held under the sanction of the primary election statutes, simply by virtue of a resolution adopted and filed by it with the Secretary of State to that effect. And in this connection it is well to reiterate at this point that under the controlling ratio decidendi of the Mitchell case, supra, we have no doubt that it is entirely within the province of the State Democratic Executive Committee (or of the Republican State Executive Committee, as the case may be) to select its own committee nominees for the vacant offices here involved without necessarily resorting to the calling and holding of special primary elections for making nominations of the Democratic candidates for the vacant offices of United States Senator now existent, unless it is so desired.
So in this case the major proposition required to be considered is whether or not the party committee authority is still recognized under the statutes of the State of Florida by means of which the appropriate Executive Committee of a political party subject to and required to be governed by our primary statutes, may, at its option, call and hold special primary elections for the purpose of nominating party candidates for vacancies in the office of United States Senator that are shown to have occurred subsequent to the general primaries already held, but prior to the succeeding general election, in a situation where the Committee, by its resolution, has decided and determined that it is in the public interest that nominees for such vacancies in office be elected by the party electors at special primaries, instead of being chosen solely by the action of the Executive Committee on its own responsibility?
As a corollary to the foregoing proposition another may be stated as follows: Assuming that it is still within the inherent political party authority of the appropriate Executive Committee of one of the major political parties subject to the general primary laws of the state to call and hold special primaries for the purpose of nominating its party candidates for vacancies in elective offices that have occurred subsequent to the general primary already held, but prior to the preceding general election, do the special primaries so ordered solely by action of the party executive committee ipso facto fall within the governing and regulating sanction of the general primary laws that have been enacted to govern that same party's general primary elections mandatorily required to be held by it according to state law at stated statutory intervals?
It is our view that the Florida Primary Laws do contemplate that when vacancies in elective offices occur subsequent to a general primary, but prior to the succeeding general election, that special primaries may be, but are not mandatorily required to be, called by the appropriate executive committee of political parties subject to the primary statute and that when the option to so call and hold same has been exercised by the appropriate committee and a resolution evidencing the call has been duly filed with the respondent officer with whom candidates in such primaries are required by statute to qualify for the general primary elections, that thereupon the general machinery of the law for the regulation of primary elections generally, and the declaration of the results thereof, are thereby set in motion and thereupon such special primary elections are to be considered as governed and regulated in all particulars as if the same were general primary elections held on one of the statutory dates prescribed therefor by law. This conclusion is reached and expressed upon what we regard is consistent with the intent and spirit of the primary laws themselves, the express language used therein, the implications necessarily flowing therefrom, a consideration of the evils sought to be renedied thereby, and the trend of the decisions of this Court heretofore rendered by us by which our primary laws have been considered and construed.
A primary election is the initial step in our system of elections looking to the nomination of candidates whose names are to find a place on the official general election ballot. The purpose of a primary election is to give vitality to the constitutional guaranty of a free and untrammeled ballot by affording freedom of choice of candidates to the individual party voter who may be expected to support the party nominees at the ensuing general election. The honest conduct of a primary election is therefore not less important than freedom in expression of choice as between candidates on the final election is generally regarded as indispensable. Indeed the voting strength and solidarity of the dominant political party in a state like the State of Florida is such that the contest for nomination of candidates of such dominant party is universally regarded as equivalent to a general election.
Therefore, because of the public importance of securing proper party nominations, the regulation of party primary elections, and the institution of official state controlled primaries to be conducted and held at public expense, and under the eye of public officials, are universally held to be proper subjects for legislative action. And a statute providing for primary elections by political parties that cast a prescribed percentage of the votes polled at the last general election is not rendered violative of the Constitution of this state, nor of the 14th Amendment to the Constitution of the United States, because it commits to the controlling party committee the power to prescribe the purpose, time, manner and conditions of the holding of such primary elections and the party qualifications of the electors eligible to participate therein as members of the party holding such election, while at the same time requiring the primary elections so called to be paid for out of public funds. State, ex rel. Webber, v. Felton, 75 Ohio 554, 84 N.E. Rep. 85, 12 Ann. Cas. 65. In such cases, says the Supreme Court of Ohio: "There is no delegation of legislative power, but only regulation of a power already possessed by the party" to call and hold its primaries at such times it may desire in the absence of state law providing a statutory date. The fixing of a time for calling and holding party primaries for making party nominations of candidates of political parties has been a party prerogative from time immemorial and absent restrictive legislation requiring the holding of such primaries on a statutory day or days, the choice of dates is a matter for the party affected to decide.
Thus, while there has been a marked change brought about by our state primary statutes in the matter of nominating candidates for public office, it must not be assumed that because the Legislature has intervened and adopted a general primary election law that is supreme over the party will in the field in which it is designed to operate, that it has thereby removed all the power that once vested in the party organization, through its appropriate convention or party executive committee, to control its affairs and actions in particulars whereon the Legislature has not spoken.
Prior to the adoption of our primary election laws, the regulatory power of the dominant political party of this state was inherently vested in its convention or appropriate party executive committee, which, as an incident to the organization of its membership into a political party, became thereby possessed of the self-governing power to prescribe the purpose, time, manner and conditions for holding party primary elections and determining qualifications of its own membership in all cases where such plan of nomination was an essential tenet of party policy. It is only because the statutes of the State of Florida constituting the body of our primary laws have specifically undertaken to regulate particular matters formerly controlled only according to party law, that many of the inherent powers of political party committees and conventions subject to such primary laws have been curtailed and made subordinate to the legislative procedure prescribed by authority of the state under Section 26 of Article III, Constitution of Florida, in the interest of honesty and fair play.
The present primary law was passed in 1913 as Chapter 6469, General Laws of that year. It became popularly known as the "Bryan Primary Law," and the principal difference between that Act and the original 1901 primary law (Chapter 5014, Laws of 1901) insofar as governmental policy is concerned was that the 1913 law provides for compulsory primaries on dates fixed by the Legislature, whereas the 1901 law left the determination as to whether or not primaries should be held to the option of the affected political parties whose inherent prerogative such option was admitted to be in the absence of a mandatory provision of statute providing for compulsory primaries, fixing their dates and regulating same.
The 1913 Act abolished the option of the major political parties of this state to proceed or not, as they saw fit, to make their nominations by way of primaries instead of some other method by making it compulsory upon the political parties affected by its terms to nominate candidates by primary election, and by no other method, in ordinary cases. See Section 355 C.G.L., 299 R.G.S.
When Chapter 6469, Laws of 1913, providing for compulsory primaries was enacted, the pre-existing primary law, Chapter 5014, Laws of 1901, was not thereby expressly repealed. Therefore, the terms of the earlier Act acknowledging in political parties the possession of their inherent party rights to call or not to call primary elections as they might see fit, in cases where mandatory elections were not expressly provided for, may be said to have been brought forward into, and re-enacted in the 1913 Act in the language of Section 361 C.G.L., 305 R.G.S., as amended by Chapter 13751, Acts of 1929, insofar as such subsequent law provides that: "Each committee and its officers shall have the powers usually exercised by such committees and by the officers thereof not inconsistent with provisions of this article." So it is that all ordinary party powers that were recognized as the prerogative of party executive committees under the 1901 Act, are continued in force by the express recognition thereof in the terms of the 1913 Act and Acts amendatory thereof, insofar as the implied existence of such original powers may not be inconsistent with and repugnant to the express or implied provisions of the "Bryan Primary Law" and its amendments.
The legal effect of the Florida Primary Election Statutes is to make the State Executive Committee of the dominant political parties subject to them, the respective representatives of such parties when acting in lawful assembly and thereby to extend recognition to such Executive Committee as the organs of expression of such parties for the declaration of their party principles, and the formulation of party policies, with like effect as if such State Executive Committees were regularly called party convention, since such State Executive Committees are required to be elected directly by the party voters at the prescribed party primaries.
In the case of State, ex rel. Summer, v. Mitchell, 118 Fla. 513, supra, it was distinctively pointed out that where there is a vacancy in an elective office occurring after the time for candidates to qualify at the general primary elections but prior to the subsequent general election, that the mandatory provisions of the general primary laws requiring candidates of the Democratic Party in this state to be nominated in the compulsory party primary elections in order to have their names as such printed on the general election ballots under Amended Section 312 C.G.L., 256 R.G.S., do not control. Accordingly it was held to be simply a matter of customary party activity for the party executive committees to make their own nominations in cases where the subject matter of party action was neither expressly or impliedly regulated by statutory provisions to the contrary. There was no intimation intended in that case to the effect that the committee method of making nominations was to be deemed and held to be the exclusive "customary party activity" that had to be resorted to in order to have the name of the party nominee printed on the ensuing general election ballots under amended Section 312 C.G.L., supra (Chapter 14657, Acts of 1931), in a case where, because of a vacancy in office occurring after the opportunity to nominate in the general primaries has elapsed, but before the succeeding general election, no nominees of the affected major political party could be had through the general primary elections held on the statutory dates.
Only when one of the major political parties of this state subject to the primary election laws has had the statutory opportunity to lawfully make its nominations for offices capable of being voted for in the regularly established June primaries, and has failed and neglected to do so as provided and required by such primary election laws, does such party forfeit its inherent party right to seasonably make executive committee nominations, or, at its option to call and hold special primary elections, in order to have the names of its nominees for such offices as selected by it, printed on the ensuing general election ballots in accordance with Amended Section 312 C.G.L., supra, as party candidates of such major political parties for the offices required to be filled at such ensuing general election. See: State, ex rel. Chamberlain, v. Tyler, 100 Fla. 1112, 130 Sou. Rep. 721; State, ex rel. Summer v. Mitchell, 118 Fla. 513, 159 Sou. Rep. 775.
Specific references to "special primary" elections as well as "general primary" elections are to be found in the statutes of this state. See Section 267, 381, 8140 C.G.L., 324 and 5877 R.G.S. Ten references are contained in the statutes to "general" primary elections, as distinguished from the so called "special" primary elections. See Sections 355, 363, 364, 365, 366, 369, 382, 383, 8140 C.G.L., 299, 307, 308, 309, 310, 312, 325, 326, and 5877 R.G.S. Construing these references in connection with the acknowledged powers of party executive committees that were "usually exercised" by such committees at the time the Bryan Primary Law (Chapter 6469, Acts 1913) was enacted, and which that statute purports to preserve and continue unimpaired by virtue of Section 361 C.G.L., 305 R.G.S. (as amended by Section 3 of Chapter 13761, Acts 1929), it follows as a logical conclusion that the choice of the method of making party nominations, whether by the committee itself, or by means of special primaries, to nominate candidates for elective state offices that have become vacant too late to be voted on at the general June Primary elections, but which are contemplated to be filled at the ensuing general election that will intervene before another general June Primary election can be held in the ordinary course of law, is a prerogative of the appropriate executive committee and constitutes the enjoyment of a power usually exercised by such committee within the purview of amended Section 361 C.G.L., supra. Hence, where a special primary is selected as a method of nomination in such instances, the special primary so called, becomes a political activity of one of the major political parties subject to the control of the primary statutes of this state, and such special primary elections when so called and held must be considered the making of the involved party nominations in primaries conducted and held under state supervision, and at public expense "in the manner provided in this Article (Sections 355 C.G.L., 299 R.G.S., et seq.) and not otherwise." This in turn makes it the clear legal duty of the responsible state and county offices to perform the statutory functions and to take the prescribed legal steps necessary to be taken to render the execution of the primary statutes effective as to such special primaries when so called and provided to be held in such special instances.
The fact that our primary election laws have been so framed as to make it possible for the Democratic and Republican Parties, as the major recognized political parties of this state, to have called and held, with respect to the existing vacancies in the two offices of United States Senator from Florida, four separate primaries on divergent dates, thereby forcing the carrying out at public expense of two separate series of first and second primary elections, goes to the policy and wisdom, not to the applicability or enforceability of the primary election statutes as they were intended to be given force and effect as a design to police, supervise and regulate the political activities of such major parties because of their invidious effect on the public welfare if not so regulated.
In this connection it is pertinent to observe that it would hardly be contended that a like situation would not prevail should the Legislature intentionally or inadvertently repeal Section 2 of Chapter 13761, Acts of 1929, fixing the dates for holding the regular primary elections. But in such circumstances could it be argued that the deletion of said Section 2 of said Chapter 13761, supra, would render inoperative or invalid the remainder of the primary election laws that would remain after such deletion? The legislative casus omissus as to a method of fixing one and the same series of dates for holding special primaries where the two separate parties may be involved, can be easily remedied by the Legislature's authorizing the Governor to fix one set of dates for such special primaries in cases when both parties exercise their option to have primaries and they cannot agree on the same days for holding such primaries.fn_
At the bar the suggestion was made that to hold as we have held in this opinion with respect to the validity of the special primaries here in controversy, could only be accomplished as an act of judicial legislation on the part of the Justices of this Court. But eminent authority is to the contrary. It is always inherently within the scope of judicial process itself for the judges to so interpret the sense of our statutory laws evidenced by legislative acts, codes, ordinances, and the like, as to supplement the intendments of the positive words, fill in the vacant spaces, and by the same methods and processes that have built up all of our customary law in the past, correct uncertainties and harmonize results with justice through a method of judicial decision that looks through the transitory particulars of a scheme expressed in a statute, and perceives the permanent intent and policy of the law that lurks behind the mere words of a statutory enactment.
Such pragmatic vitalizing of the judicial process has been best expressed by Mr. Justice CARDOZO, now of the United States Supreme Court in his excellent series of lectures entitled "The Nature of the Judicial Process," which is now an accepted text-book authority on that subject, approved by all first class law schools, as follows (pages 14-16):
"Where does the judge find the law which he embodies in his judgment? There are times when the source is obvious. The rule that fits the case may be supplied by the Constitution or by statute. If this is so, the judge looks no farther. The correspondence ascertained, his duty is to obey. The Constitution overrides a statute, but a statute, if consistent with the Constitution, overrides the law of judges. In this sense, judge- made law is secondary and subordinate to the law that is made by legislators. It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are doubts and ambiguities to be cleared. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however obscure and latent, had none the less a real and ascertainable pre-existence in the legislator's mind. The process is, indeed, that at times, but it is often more. The ascertainment of intention may be the least of a judge's troubles in ascribing meaning to a statute. `The fact is,' says Gray in his lectures on the `Nature and Sources of the Law,' `that the difficulties of so-called interpretation arise when the Legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the Legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present.' So Brutt: `One weighty task of the system of the application of law consists then in this, to make more profound the discovery of the latent meaning of positive law. Much more important, however, is the second task which the system serves, namely the filling of the gaps which are found in every positive law in greater or less measure.' You may call this process legislation, if you will. In any event, no system of jus scriptum has been able to escape the need of it. Today a great school of continental jurists is pleading for a still wider freedom of adoption and construction. The statute, they say, is often fragmentary and ill-considered and unjust. The judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision `libre recherche scientifique.'"
What has been said is sufficient to demonstrate the propriety of issuing the alternative writ of mandamus sought in this case, so the motion to discharge the rule nisi is denied and the demurrer to same overruled with directions that the alternative writ of mandamus do issue as prayed, returnable on an early date to be specified therein by the Clerk of this Court.
Let an order be entered accordingly.
WHITFIELD, C.J., concur.
BROWN, J., concurs specially.
BUFORD, J., joins in the order to issue alternative writ but does not concur in opinion.
ELLIS, P.J., and TERRELL, J., dissent.
BUFORD, J. (joining in the order awarding alternative writ of mandamus).
I am unable to agree with all that is said in the opinion by Mr. Chief Justice WHITFIELD or what is said in the opinion prepared by Mr. Justice DAVIS, or what is said in the opinion prepared by Mr. Justice BROWN.
I am convinced that we committed error in the construction of paragraph 3 of Sec. 14, Chapter 13,761, Acts of 1929, when we construed the language "for any cause there is a vacancy in any nomination" to apply only to cases where there had been a nomination in a General Primary and for some reason the nomination thereafter and prior to the General Election became vacant. See State, ex rel. Chamberlin, v. Tyler, 100 Fla. 1112, 130 So. 721; Moore v. Board of County Commissioners, Leon County, 96 Fla. 519, 118 So. 476; and State, ex rel. Summer, v. Mitchell, 118 Fla. 513, 159 So. 775.
I think that it was the legislative intent by the enactment of Chapter 13761 to provide for the nomination of party candidates under all conditions and the language in Section 14 of that chapter amending Section 354 R.G.S., 411 C.G.L.: "In the event of the death, resignation or removal of any person nominated for office in a primary election, between such primary election and the ensuing general election, or if for any cause there is a vacancy in any nomination and no method is otherwise provided herein for filling such vacancy, then and in that event the procedure shall be the same as is hereinbefore provided for the nomination of candidates in case no candidate receives a majority of the votes cast in the primary election and all such nominations shall have the same force and effect and shall entitle the nominees to all the rights and privileges that would accrue to them as if they had been nominated in the regular primary election," was intended to confer upon the respective governing committees the power to make a nomination of a party candidate to be voted for in the General Election whenever it shall appear that an elective Federal, State or county officer would be required to be elected in the ensuing General Election and no person had been nominated in the primary as the party candidate for that office.
My colleagues, however, do not agree with me in this regard and, therefore, the law is established contrary to the view which I now entertain and such view must yield to the construction of the statute as established by the enunciations in the cited opinions.
In State, ex rel. Summer, v. Mitchell, supra, it was held:
"Where, however, by reason of the death of an elective officer during a term and after a primary has already been held in a general election year, but before the date of the ensuing general election, no nomination can be made according to the usual laws governing primary elections, the statutory limitations as to printing names on the general election ballot does not necessarily apply. Therefore, the political parties themselves, or their official representative committees may exercise their inherent party prerogative of selecting a candidate and certifying his name to be printed on the general election ballot where no intendment of the primary election law is to be circumvented or violated by so doing. And under Chapter 14657, Acts 1931, supra, nominees so selected, being nominees in fact of a party entitled to make and certify nominations of candidates for printing in general election ballots, are entitled to have their names printed on the general election ballots as candidates `Put in nomination' by the appropriate party executive committee despite the fact that they may not be entitled to claim title as nominees under the special statutory prerogatives of an official primary or committee nominee as the latter class of nominees is described in the terms of Section 14 of Chapter 13761, Acts 1929." (Emphasis supplied.)
And, further, in that opinion we said:
"But when there has been no candidate nominated as the result of a primary election and it is clearly demonstrated that under no circumstances can there be a primary election nomination legally made, because of the occurrence of a vacancy in office subsequent to a primary and prior to the succeeding general election, it cannot be said that the terms of Chapter 12038, supra, should be so strictly construed as to inhibit the exercise of a party's traditional powers to nominate a candidate according to its own rules and regulations and have that candidate accepted and recognized as such for the purpose of having his name printed on the ballot under that Act, although his status as a nominee under such circumstances is not that of one having an exclusive right to have his name appear printed on the ballots of the general election. This is necessarily the rule because we can find nothing in our system of primary election laws which was intended to forbid customary party activities in cases where the subject matter is neither expressly nor impliedly regulated by statutory provisions."
So it is that to hold that a special primary election may be called by the governing committee of a recognized political party and thereupon be required to be held under the law applicable to general primary elections is to positively overrule what was said as above quoted in the Mitchell case.
It must also necessarily follow that: "The State Democratic Executive Committee could have called one set of special primaries to be held for the nomination of one candidate for the United States Senate in September and another set of special primaries for the nomination of another candidate for the United States Senate in October, and the State Republican Executive Committee could have likewise called two sets of special primaries for the nomination of two candidates for the United States Senate and the Secretary of State could be by mandamus coerced to function in regard to each of those four special primary elections in the manner in which he is sought to be coerced here, and then, if we happened to have some other political party which had shown sufficient voting strength to be recognized as a political party, such other political party through its State Executive Committee could call some additional Special Primaries to nominate its candidates and require same to be held at public expense." This conclusion was approved by Attorneys for the Relators at the bar of this Court.
Under the provisions of Chapter 6469, Acts of 1913, the several party committees are endowed with all the powers usually exercised by such committees. It must be conceded that the calling of a Special Primary election to nominate a party candidate for office was a power that had usually been exercised by such committee prior to the enactment of Chapter 6469, supra, and is within the inherent power of such committee unless such power is abrogated by statute. So we must now determine whether we will adhere to the enunciation contained in the Mitchell case hereinbefore quoted to the effect "that under no circumstances can there be a primary election nomination legally made because of the occurrence of a vacancy in office subsequent to a primary and prior to the succeeding general election," or, shall we overrule that holding and now hold that a State Executive Committee of a recognized political party may call a special primary under such circumstances as here exist and upon such special primary election having been called by such committee it becomes the duty of the State and county officers to function in all respects in connection with such special primary election in the same manner and to the same extent that they would function in connection with the holding and conducting of a general primary election specifically provided for in the statutes.
My view is that to hold the latter, and this we must do or not issue the writ, we must read and write into the statutes language which is not there either in terms or by implication. We must escape terming this "judicial legislation" by calling it "judicial interpretation" of the legal right of the State under existing statutes to regulate and police all primary elections, whether general or special, and whether held under the mandatory provisions of the statutes, or held pursuant to call therefor made by the governing committee of any political party recognized as such under the laws of this State and when made under conditions under which such Committees may lawfully call a special primary election to be held for the nomination of its candidates to be voted for in the general election.
The determination of the question does not involve the rights of life, liberty, property or the pursuit of happiness. It involves only the question of procedure as to how a party candidate may be nominated by the Democratic Party in Florida.
I am convinced that the usefulness of this Court, the respect in which it may be held and the confidence reposed in it by the people of the State, and the welfare of the State at large may be better served by my yielding some of my personal views in regard to the construction to be given existing statutes and joining with my colleagues who have approved the opinion which will mean ultimately the issuance of a peremptory writ of mandamus, unless the Secretary of State should make his return alleging compliance with the alternative writ, than by my adhering to my personal views and producing an equal division of the Court and thereby obstructing the procedure which has been undertaken, and thrusting back on the shoulders of the State Democratic Executive Committee the duty of nominating candidates for the Democratic Party to be voted for for the offices of United States Senator in the ensuing general election.
Therefore, I join in the Order issuing alternative writ of mandamus.