On a former habeas corpus proceeding sued out by this same petitioner, the writer felt compelled to dissent from the views of his associates on the main question then presented, because in his opinion Chapter 9169 (Sections 8424-8431 C. G. L.) conflicted with Section 27 of Art. III of the Constitution, in that it invested the Superintendent of the State Prison with the powers and functions of an officer, without providing for his election by the people or appointment by the Governor. That question was settled by the majority of the Court, in the decision cited in the foregoing opinion, both on the original hearing and on rehearing, adversely to the contention of the petitioner, and to the opinion of the writer (100 Fla. 1242,1247; 132 So. 2d 474, 476) and is not presented by the petitioner in the instant case. But the writer has not yet been able to change his views on the question formerly presented. However, this case merely involves the construction of the intent and effect of the statute, and the sentence of the Court, in certain particulars. Again, I regret to say, *Page 287 I am not able to fully concur in the present opinion as written. I can agree to the view that the statute (Section 8430 C. G. L.) makes the Superintendent of the State Prison the executioner, and the sheriff of the county in which the conviction was had the deputy executioner, but to my mind the statute does not make it clear that in the absence, death or disability of the Superintendent of the Prison either theSheriff or his deputy shall perform the execution. It is nowhere plainly stated by the statute, nor necessarily and clearly implied by the language used, as I read it, that the sheriff shall in any case personally perform the execution, much less his deputy. As, with reference to the subject matter of Section 8430, the sheriff is himself a deputy, has he any authority to appoint a deputy to act in his place in the particular matter dealt with by this particular statute? I seriously doubt that he has such authority. This Court has held that a deputy sheriff cannot himself appoint a deputy. Guarantee Trust Co. v. Buddington, 23 Fla. 514, 2 So. 2d 885. Why then can a deputy executioner appoint a deputy? The statute says the sheriff "Shall be present at the execution unless he is prevented by sickness or other disability." It does not say that if he is prevented from being present by sickness or other disability, his place can be supplied by a deputy sheriff. No provision is made for this. Can the general provisions of Section 4578 C. G. L. supply this omission in a statute such as this, dealing with a particular matter, of great delicacy and solemn importance? I do not think so. Again, the statute says that: "All executions shall be carried out by the executioner, deputy executioner and such deputies, electricians and assistants as he may require to be present to assist," etc. It will be noticed that the disjunctive, "or," is not used, after the word "executioner," thus indicating that the executioner, *Page 288 the prison superintendent, must perform all executions, with only the assistance of the others named.

Therefore that portion of the sentence of the Court which says, "Or one of his authorized deputies," is not supported by the statute, and should be disregarded as surplusage.

For these reasons I must dissent.