Baker v. State ex rel. Caldwell, 1986

• Decision Date: 05 August 1960
• Docket Number: No. 1986,1986
• Citation: 122 So.2d 816
• Parties: Katherine L. BAKER, as Supervisor of Registration for Lake County, Florida, Appellant, v. STATE of Florida ex rel. Roy CALDWELL, Appellee.
• Court: Florida District Court of Appeals

Page 816

122 So.2d 816

Katherine L. BAKER, as Supervisor of Registration for Lake County, Florida, Appellant, v. STATE of Florida ex rel. Roy CALDWELL, Appellee.

No. 1986.

District Court of Appeal of Florida, Second District.

Aug. 5, 1960.

Rehearing Denied Aug. 23, 1960.

C. E. Duncan, Tavares, and J. Lewis Hall; Hall, Hartwell & Douglass, Tallahassee, for appellant.

P. C. Gorman, R. E. Davis, Z. D. Giles, H. L. Pringle, Leesburg, Harry E. Gaylord, Neal D. Huebsch, Eustis, W. B. Hunter, Tavares, Wm. E. Lee, Clermont, and C. O. Andrews, Jr., Orlando, for appellee.

ALLEN, Chief Judge.

This is an appeal from a judgment of the Circuit Court in and for Lake County commanding Katherine L. Baker, as supervisor of Registration for Lake County, to execute and deliver to the relator, Roy Caldwell, a certificate showing the said relator to be the Democratic nominee for the office of County Judge for Lake County.

W. Troy Hall, Jr., and W. A. 'Bill' Milton, Jr., qualified in the Democratic primary for election to the office of County Judge of Lake County. A certificate of nomination was issued to W. Troy Hall, Jr., after the first primary of May 3, 1960. W. Troy Hall, Jr., withdrew from said nomination since he had also qualified as a candidate for Circuit Judge of the Fifth Judicial Circuit and had received the Democratic nomination for this position.

Immediately thereafter, R. A. Gray, Secretary of State, set the period between May 6, 1960, and noon of May 11, 1960, for all Democratic candidates to qualify for the office of County Judge of Lake County, Florida.

Roy Caldwell, W. A. Milton, Jr., and Fred Reedy qualified as such candidates and at the second regular primary election held on May 24, 1960, Caldwell received 5,384 votes, Milton received 5,050 votes and Fred Reedy received 1,289 votes. No candidate received a majority of the votes cast.

Caldwell requested from the Supervisor of Registration a certificate showing him to be the Democratic nominee for the office of County Judge of Lake County, which was refused by the Supervisor. This resulted in Roy Caldwell bringing a mandamus action against Katherine L. Baker to require the issuance of a certificate to him as the duly elected nominee of the Democratic Party for the office of County Judge of Lake County.

The circuit court, in effect, held, under the present election laws, that since there had been a vacancy in nomination between the first and second regular primaries, that there was no necessity for a special primary to be held to fill the vacancy in nomination and that the Secretary of State was authorized to set a new qualifying date for the filling of such vacancy in nomination during the regular called second primary and that such nomination could be had without a candidate receiving a majority of the votes cast. Since neither of the three candidates received a majority vote, the court issued a peremptory writ, holding that Roy Caldwell was the Democratic nominee and that it was not necessary to hold a special secondary primary.

The circuit judge, in his order, stated that relative positions of the relator and the respondent to be that the respondent contended that it was necessary for a special primary election to be held which could only be called by the Governor; and, even if it be contended that the primary held on May 24, 1960, was a regular election that the relator would not be entitled to a certificate of nomination since he did not receive a majority of the votes cast, and that under such circumstances, it would be the duty of the Governor to call a second primary to determine which of the two high candidates, the relator Roy Caldwell, or W. A. 'Bill' Milton, Jr., should be the Democratic nominee for County Judge of Lake County at the general election in November, 1960.

The contention of the relator was that where the vacancy in nomination occurs between the first and second primaries, the duty devolved upon the Secretary of State to designate and set the period for all Democratic candidates to qualify for the vacancy in nomination and that since the relator received a plurality of the votes at the second primary election, he should be designated as the Democratic nominee without the necessity of a run-off election.

The Florida Supreme Court held, In re Advisory Opinion to the Governor, Fla.1952, 60 So.2d 285, 287, that the Governor had authority to call a special primary election to fill a vacancy in nomination for the office of a Justice of the Supreme Court caused by the death of such nominee, and to fix the date of such primary election. The Court, in its opinion, said:

'It is plainly apparent from the title of the Act and section 9 thereof, that the Legislature intended Chapter 26870 to be a complete revision of the general laws in respect to elections, including general, primary and special elections; and that the portion of Section 102.48, Florida Statutes, 1949, F.S.A., with respect to the power and duty of the State Executive Committee to call a special primary election to fill a vacancy in nomination was eliminated or deleted and is not now a part of the election code of the State.

'You have quoted Section 100.111(2)(c), Florida Statutes, 1951, F.S.A., which is a part of Chapter 26870, Laws of Florida 1951. In respect to the first question posed, this statute is plain and unambiguous and does not admit of any construction different from that conveyed by its clear language. As the statute states, it is your duty to call 'a special first primary and if necessary seven days later a special second primary' for the purpose of filling the vacancy in nomination caused by the death of the Honorable Roy H. Chapman, for the office of Justice of the Supreme Court of Florida for a full 6-year term beginning the first Tuesday after the first Monday in January, 1953.

'In answer to your question numbered two, the applicable statute quoted by you imposes upon the Governor the mandatory duty of calling a special first primary election, where a vacancy occurs in nomination for an elective state office later than 30 days before a first primary election and before 40 days prior to the general election. While the statute does not specifically provide, in terms, that the Governor may fix the date on which the special primary election shall be held, it is settled in this jurisdiction that if a statute imposes a duty upon a public officer to accomplish a stated governmental purpose, it also confers by implication every particular power necessary or proper for complete exercise or performance of the duty that is not in violation of law or public policy. See State ex rel. Smith v. Burbridge, 24 Fla. 112, 3 So. 869; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789.

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'We advise you, therefore, in respect to the second question, that inasmuch as the statute makes it your clear mandatory duty to call a first primary election, it also imposes upon you the duty of fixing in your call the date of such first primary election. The date for such primary election should be so fixed as to allow for a second primary within seven days after the first primary, if the same should be necessary in order to determine a nominee; and at all events the first primary election date should be so fixed that the name of the nominee can be known and certified in such sufficient time as to allow it to be placed upon the general election ballots, or upon a separate ballot in the event the general ballots have already been prepared.'

Subsequent to the above opinion by the Supreme Court, the Governor propounded another question to the Justices, In re Opinion to the Governor, Fla.1952, 60 So.2d 321, 324, with reference to the duty or authority of the Governor to call a special primary of the Republican party to also nominate a candidate to the office of Justice of the Supreme Court of Florida. The Supreme Court, in its opinion to the Governor elaborated on its previous opinion with reference to a special primary to fill a vacancy in nomination, saying:

'Section 97.021, Florida Statutes 1951, F.S.A., contains many definitions pertinent to the inquiry.

'Subsection (1) thereof defines a 'primary election' to be an election 'held preceding the general election, for the purpose of nominating a party nominee to be voted for in the general election to fill a national, state or county office'. As stated in the subsection, 'The first primary is a nomination or elimination election, the second primary is a nominating election only'; and, as made plain in Section 100.061, Florida Statutes 1951, F.S.A., 'A first primary election is held on the first Tuesday after the first Monday in May or every year in which a general election is held for nomination of candidates of political parties * * *. A second primary election is held on the fourth Tuesday after the first Monday in May of every year in which a general election is held for the nomination of candidates of political parties for state and county offices for which nominations were not made in first primary election * * *.'

'A 'Special primary election' is quite a different thing. As defined in Section 97.021(3), a 'Special primary election' is 'a special called nomination election designated by the governor, for the purpose of nominating a party nominee to be voted on in a general or special general election.'

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'Section 99.131 provides for the printing of names of candidates on the general election ballot. After making provision for the nominees of each political party which have been nominated in the primary, it provides that there must be printed on the ballots the names of candidates of political parties 'nominated or selected to fill vacancies in nomination or vacancies in office in the manner and within the time provided by chapter 100.' This Section also provides for blank lines under each office to be balloted on.

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'Section 100.111, Florida Statutes 1951, F.S.A., is a revision of former...