Opinion
August 13, 1952.
Supreme Court of Florida Tallahassee 12 August 1952
The Honorable Fuller Warren Governor of the State of Florida Tallahassee, Florida
Dear Sir:
We have your request of August 12, 1952, for our opinion affecting your executive powers and duties as follows:
"August 12, 1952
"Honorable H.L. Sebring Chief Justice, and the Justices of the Supreme Court of Florida Tallahassee, Florida
"Re: Special primary to fill vacancies in nomination for state offices.
"Gentlemen:
"Under section 6, article IV, of the state constitution, 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.
"On Friday, August 8, 1952, the Honorable Roy H. Chapman, a Justice of the Supreme Court of Florida, died. In the recent Democratic primary he was nominated for a full six-year term as a Justice of the Supreme Court, beginning on the first Tuesday after the first Monday in January, 1953. His death created a vacancy in nomination for this office.
"Section 102.48, Florida Statutes, 1949, provides that in the event of the death of any person nominated for office in the primary election between such primary election and the ensuing general election, the State Executive Committee shall call a primary election to provide for a nominee for such office. The 1951 Legislature enacted chapter 26870 creating an election code. In it, chapter 102.48, Florida Statutes, appears to have been amended or revised and the portion of said section which provided for the calling of a special primary by the State Executive Committee was deleted. In the said chapter 26870, Laws of Florida, 1951, which is carried forward in Florida Statutes 1951, there appears section 100.111 (2) (c) as follows:
"'When a vacancy occurs later than thirty days before the first primary and before forty days prior to the general election, it shall be subject to a special first primary and if necessary seven days later a special second primary to be called by the governor. Ten days shall be allowed from the time the vacancy occurs in which to specially qualify and the name of the person nominated in the special primary shall be placed on the general election ballot but in event the general election ballots have already been printed then a separate ballot shall be prepared.'
"The calling of a special primary election to fill the vacancy in nomination for Justice of the Supreme Court as hereinabove set forth will require the expenditure of a substantial sum of public funds and the expenditure of this money involves my constitutional power and duty to countersign warrants. I am extremely anxious that the legality of a special primary election be firmly established in order that there will be no question about the performance of my constitutional duty to countersign warrants for the expenditure of public funds.
"There seems to be considerable doubt whether I should call a special primary election to fill this vacancy or whether the State Democratic Executive Committee should call such election. Should the wrong official or body call such a special primary election it would be illegal and the expenditure of public funds for the holding of such primary election would be illegal.
"In view of the doubt which exists and which has been expressed, and in order to perform my official duty to see that the laws are faithfully executed, and to countersign warrants only for the legal expenditure of public funds, I have the honor to request your opinion of the following questions:
"1. Do I have the power and authority as Governor to call a special primary election to fill the vacancy in nomination of the late Roy H. Chapman for Justice of the Supreme Court of the state of Florida, for the full term of six years, beginning the first Tuesday after the first Monday in January, 1953?
"2. If I do have such authority, have I also the authority to fix the date for the first special primary election, and if necessary a second special primary election, so that the dates will be sufficient to insure the name of the nominee being printed upon the general election ballot, and if already printed, upon a separate ballot?
"Respectfully submitted, /s/ Fuller Warren Governor"
In answer to your question number one, we beg to advise that in 1951 the Legislature enacted Chapter 26870, General Laws 1951, a portion of which you have copied in your inquiry, and the title to which is as follows:
"Chapter 26870 — (No. 391) House Bill No. 300 An Act Creating the Election Code of 1951, Amending and Revising Chapters 97, 98, 99, 100, 101, 102, 103, 104 Relating to Qualification and Registration of Electors; Registration Officers and Procedures; Candidates, Campaign Expenses and Contesting Elections; Elections: General, Primary, Special, Bond, and Referendum; Voting; Conducting and Canvassing Results of Elections; Presidential Electors, Political Parties, Executive Committees and Members; Providing Penalties; and Repealing Chapters 105, 106 and 875."
In connection with the title it is significant to note that Section 9 of said Chapter 26870 prescribes as follows:
"Section 9. Chapters 105, 106 and 875, Florida Statutes, together with section or parts of sections of chapters 97, 98, 99, 100, 101, 102, 103 and 104 not revised or brought forward in this Act are hereby repealed."
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.
Manifestly there cannot be a legal election held unless a specific date therefor can be fixed beforehand. It will not be assumed that where the Legislature imposed upon the Chief Executive of the State a duty as important as the one of calling a special primary election to fill vacancies in nomination, the Legislature intended to impose upon the Chief Executive a duty impossible of performance because of the absence of authority to fix the date of such an election.
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.
Respectfully submitted,
/s/ HAROLD L. SEBRING Chief Justice. /s/ ELWYN THOMAS /s/ B.K. ROBERTS /s/ JOHN E. MATHEWS Justices