Opinion to the Governor, In re

• Decision Date: 22 August 1952
• Citation: 60 So.2d 321
• Parties: In re OPINION TO THE GOVERNOR.
• Court: Florida Supreme Court

Page 321

60 So.2d 321

In re OPINION TO THE GOVERNOR.

Supreme Court of Florida, en Banc.

Aug. 22, 1952.

PER CURIAM.

Supreme Court of Florida

Tallahassee

19 August 1952

The Honorable Fuller Warren

Governor of the State of Florida

Tallahassee, Florida

Dear Sir:

We have your request of August 18, 1952, for our opinion affecting your executive powers and duties as follows:

'August 18, 1952

'Honorable H. L. Sebring, Chief Justice, and the Justices of the Supreme Court of Florida,

Tallahassee, Florida

Re: The duty or authority of the Governor to call a special primary of Republican Party to nominate a candidate for the office of Justice of the Supreme Court of Florida.

Gentlemen:

Under Section 6, Article IV of the State Constitution, F.S.A., I am directed to take care that the laws of this State are faithfully executed, and under Section 13 of said Article IV, I am authorized to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the State Constitution upon any question affecting my executive duties and powers.

'Section 24 of Article IV of the State Constitution provides that the State Treasurer shall disburse no funds except upon order of the Comptroller countersigned by the Governor.

Section 1 of Article IV of the State Constitution provides: 'The Supreme Executive power of the State shall be vested in a Chief Magistrate, who shall be styled the Governor of Florida.'

In your advisory opinion to me of August 13, 1952 you gave as your opinion that Chapter 26870, Laws of Florida 1951, F.S.A. § 97.011 et seq., was a complete revision of the General Laws 'in respect to elections including general, primary, and special elections.'

You further advised that under Section 100.111(2)(c) Florida Statutes 1951, F.S.A., which is a part of Chapter 26870, Laws of Florida 1951, it was my 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 six-year term beginning the first Tuesday after the first Monday in January, 1953.' The late Justice Chapman occupied two positions prior to his death. He held the elective office of Justice of the Supreme Court expiring on the first Tuesday after the first Monday in January, 1953. In addition to holding this elective office, he was also the nominee of the Democratic Party with the right to have his name placed upon the general election ballot in November for the full six-year term beginning the first Tuesday after the first Monday in January 1953.

The Republican Party is a recognized political party in the State of Florida. Section 99.061, Florida Statutes 1951, F.S.A., which is a part of Chapter 26870, General Laws of Florida 1951, provides as follows:

'(1) Candidates for nomination of any recognized political party for state offices of secretary of state, attorney general, state comptroller, state treasurer, state superintendent of public instruction, commissioner of agriculture, state senator, member of the house of representatives, supreme court judge, circuit judge, states attorney and candidates for the offices of representatives to congress and United States senate, are required to file their qualification papers, pay the qualification fees and party assessment, if any has been levied, to the secretary of state not later than noon of February first of the year in which any primary is held.

'(2) Candidates for nomination of any recognized political party for the office of governor and all other candidates for state offices are required to file their qualification papers and pay their qualification fees not later than noon March fifteenth of the year in which any primary is held.'

No person qualified as a candidate for nomination as Justice of the Supreme Court of Florida in the recent Republican Primary so as to be eligible, if nominated, to have his name placed upon the general election ballot in November. There was no nomination by the Republican Party.

I recognized a clear distinction between a vacancy in office and a vacancy in nomination by a political party. I filled the vacancy in office for the unexpired term, caused by the death of the late Roy H. Chapman, as required by the Constitution, which ends on the first Tuesday after the first Monday in January, 1953.

Your advisory opinion made it plain to me that it was my duty to call a special primary of the Democratic Party for the purpose of filling the vacancy in nomination caused by the death of the late Roy H. Chapman for the office of Justice of the Supreme Court of Florida for a full sixyear term. I, therefore, issued my proclamation calling a special first primary, and if necessary, seven days later a special second primary for the Democratic Party for the purpose of filling the vacancy in nomination which existed. I did not consider that any vacancy existed in nomination in the Republican Party because of the failure of any person to qualify as a candidate for nomination and because of the failure of said Republican Party to make a nomination.

There seems to be a sharp and divided conflict of opinion as to whether or not any vacancy exists in nomination by the Republican Party for the elective office of Justice of the Supreme Court of Florida for a full six-year term beginning the first Tuesday after the first Monday in January, 1953, and whether or not it is my duty to include in my call, or proclamation, or issue a special call or proclamation for a special primary of the Republican Party to fill such alleged vacancy in nomination.

'The question of whether or not such a vacancy exists in nomination and whether or not I should call such special primary for the Republication Party involves my constitutional duty to take care that the laws of this State be faithfully executed and that I countersign no warrant for the disbursement of public funds except as may be authorized by law. Should I call a special Republican Primary to fill a vacancy in nomination when there is no nomination, may act would be illegal, and should I fail to call such an election to fill a vacancy in nomination, when there exists a vacancy in nomination, I would have failed to perform may constitutional duty to take care that the laws of this State be faithfully executed. Should the call for a special Republican Party primary be illegal, expenditure of any public funds in connection therewith or for that purpose would be illegal.

In view of the doubt which exists and which has been expressed, I, therefore, have the honor to request your opinion: first, whether or not a vacancy exists in nomination of the Republican Party of a candidate whose name would otherwise have gone on the general election ballot in November; and, second, in compliance with my duty to take care that the laws be faithfully executed, is it my duty, or am I authorized, under the Constitution and laws enacted pursuant thereto, to call a special primary election of the Republican Party to fill such a vacancy in nomination?

Respectfully submitted,

/s/ Fuller Warren

Governor'

In our recent Advisory Opinion in answer to your Request of August 12, 1952, 60 So.2d 285, we construed the existing statutes governing elections as placing upon you the mandatory duty of calling a 'Special primary election' to fill the vacancy in nomination for the office of Justice of the Supreme Court of Florida created by the death of the late Justice Roy H. Chapman, who, at the time of his death, was the duly selected nominee of the Democratic Party. In connection with the discharge of such duty we advised you that you had the statutory authority to fix the date therefor. We understand from your latest request for an advisory opinion that we are now asked to advise you whether the 'Special primary election' which it is your duty to call should be restricted to the Democratic Party in Florida or should include the Republican Party, a 'recognized political party' in this state.

Prior to 1951, the statutes governing elections in Florida were contained in Chapters 97 to 106, inclusive, Florida Statutes 1949. In 1951 the Legislature enacted Chapter 26870, General Laws of Florida 1951, known as the Election Code of 1951, F.S.A. § 97.011 et seq., and by Section 9 thereof repealed Chapter 105, 106 and 875, Florida Statutes, and all sections or parts of sections of Chapters 97, 98, 99, 100, 101, 102, 103 and 104 not revised or brought forward in the Code. It is to the Election Code of 1951, therefore, and not to any statutory law existing prior thereto and repealed thereby, that the answer must be found to your inquiry. In our consideration of the pertinent provisions of the Election Code, reference will be made to the sections thereof as the same now appear in Florida Statutes 1951, F.S.A.

In order correctly to answer the questions propounded it becomes necessary to consider the various pertinent sections of the Election Code of 1951 as such sections may refer or relate to each other. For it is a cardinal rule of statutory construction that in respect to an act comprehending a whole subject matter no specific section will necessarily stand alone; and where a section refers to some other section or sections, or where some other section or sections may be applicable to a specific section, all must be considered and construed together, in order to ascertain legislative intent. See Bryan v. Landis, 106 Fla. 19, 142 So. 650.

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...