
    Beal v. Ray and Another.
    On September 28, 1861, A., who was the judge of the Court of Common Pleas for the 12th District of the State of Indiana, vacated said office, and on September 30, the vacation of said office became constructively known to the public, through the appointment of B. by tlie Executive of the State, as the successor in said office, and the entering of B. upon the duties of said office. On Tuesday, October 8, the general annual election for the State took place, and at such election votes were cast for B. and 0., 
      as follows, viz., for B. 3,799 votes, and for C. 4,189 votos. Suit by B. against O. and the Governor of the State, to enjoin the latter from issuing a commission to G. and the former from acting as judge of said Court.
    
      Held, that the first section of the act regulating general elections, &c., (1 11. S. 1852, p. 2G0,) which provides that existing vacancies in office shall be filled at the annual general election, is so limited by the second section of said act, which prescribes the notice to be given of a general election, that an election to fill a vacancy can .not legally be held where the vacancy did not occur long- enough before the day of election to enable the steps required by the statute, as to notice. &c., to bo taken.
    
      Held, also, that the courts could not aid by mandamus an officer illegally elected to got possession of the office to which lie claims to bo elected.
    
      Held, also, that acaso was not made entitling B. to a remedy by injunction to restrain the Executive from issuing a commission to O.
    
    APPEAL from the Marion, Circuit Court.
   Perkins, J.

Complaint lor an injunction. Injunction granted. Tlie facts of the case we assume to be these: On September 28, 1861, the Hon. John Coburn vacated the office of judge of the Court of Common Pleas for the Ikth District of the State of Indiana-, said district being composed of the counties of Marion, Hendricks and Boone. On Sptember 30, 1861, the vacation of said office by Judge Coburn became constructively known to the public, through the appointment, by the Executive of tlie State, of Ms successor, Charles A. Ray, Esq., and the entering, by said appointee, upon the duties of the office. On Tuesday, October 8,1861, tlie general annual election for the State of Indiana took place; and, at said election votes were cast for Charles A. Ray and John A. Bead-, as candidates for the office of judge of the Court of Common Pleas in and for said district, as follows, viz., for Charles A. Ray 3,T;>S) votes, and for John A. Beal 4,189, making, in all of tlie votes cast, 7,988. The number of votes cast in Marion, one of the counties of said district, at the presidential election of I860, was 9,056; so that, for aught that appears, the votes cast at this judicial election, may have been confined to Marion, county. Were such the fact, the election, under the circumstances in tlie case at bar, according to Marshall v. Kerns, 2 Swan’s (Tenn.) Rep. 70, would have been void for that reason. After the result of the election of October 8 was known, Mr. Ray, being tbe incumbent of the judgeship in question, by appointment, and holding the elecüon of October 8, 1861, void, commenced a suit in the Marion Circuit Court against Gov. Morton and Mr. Bea', to enjoin the former from commissioning the latter, and the latter from acting, as judge. The Circuit Court granted a perpetual injunction.-

Two questions are presented to this Court.

1. Was the judicial election involved in this case legal?

2. Has the proper remedy been adopted, supposing the election to have been illegal?

The Constitution of Indiana ordains, that all general elections shall be held on the second Tuesday in October; Art. 2, § 14; but it does not require that vacancies in office shall be filled at such elections.

Whether any, and if any, what vacancies shall be filled at such elections, depends upon statute. This fact puts out of the case, as an authority, that of The People v. Cowles, 3 Kernan, (N. Y.) 350.

Our statute, with its title, upon the subject is as follows:

“AN ACT regulating General Elections, and prescribing the duties of officers in relation thereto. [Approved Jane 7, 1852.]
“Section I. Be it enacted by the General Assembly of the State of Indiana, A general election shall be held annually on the second Tuesday in October, at which all existing vacancies in office, and all offices, the terms of which will expire' before the next general election thereafter shall be filled unless otherwise provided by law: Provided, the first election for members in Congress shall take place at the general election in October, 1852, and every second year thereafter.
“Sec. II. The clerk of the Circuit Court .shall, at least twenty days before such election, certify to the sheriff of his county, what officers are to be elected; and such sheriff shall give fifteen days’ notice thereof, by posting up at all usual places of holding such elections, a copy of such certificate and by publication thereof in some newspaper of his county if any there be, and by delivering a copy thereof to the cleric of each township within the county, if there be any in such township, who shall notify the trustees of such township thereof.” 1 R. S., chap. 31, Statutes, by Gavin & Hord, vol. 1, p. 306.

The question then, whether the judicial election held on Ootoler 8, last, was authorized by law or not, depends upon the meaning of the above copied statute.

The first section, taken by itself, authorized the election; but the first section was not all of the statute. There were subsequent sections which, in ascertaining the meaning of the statute, were to be considered and reconciled with the first; or, if that could not be done, to be allowed to modify or repeal it, so far as repugnant.

The first section authorized, generally, vacancies to be filled; but the second, and a later section, required that before “ such elections,” as authorized in first section, shall take place, the clerk should certify, &c., twenty days, and the sheriff should notify fifteen days, &c. Now, this section is just as obligatory, just as much law, as the first section; and so limits the first as to preclude elections under it to fill vacancies where the vacancies do not occur long enough before the day of election to enable the steps required by the statute to be taken. This must have been the intention of the Legislature, and is the legal interpretation and construction, the meaning, in short, of the law, as a whole.

Public policy may require that officers shall not have it in their power, by neglect of duty, to defeat elections.

We do not therefore intimate that where the vacancy had occurred such length of time before the election, the failure of the officers to certify and notify would vitiate an election1 held. Such then, as above interpreted, we deem to be the statute itself on this subject. And that this construction is in accordance with public policy, and the rights and interests of the people, there can be no doubt.

It secures to them time to examine the qualifications of volunteer candidates, to bring out others of their own volition, if desirable, and to ascertain precisely what the voters have to do, and to secure some concert of movement, some concentration of public opinion and action, so as to prevent a few persons near the public offices from imposing officers, for long periods, upon the people.

This, in popular governments, is a matter of the utmost importance. See Biddle v. Willard, 10 Ind. 62; Carson v. McPhetridge, 15 id. 327.

It remains to consider the question of the remedy.

It is contended that proceedings for an injunction to arrest the progress of one claiming to have been elected to an office, while taking the steps necessary to possess himself of the office, can hot be upheld; that the officer, must be permitted to enter into the qffice, must, indeed, be aided by the courts in getting into it, and then be ousted again by the courts, if he is not rightfully in, by information in the nature of quo warranto. The case of Brower v. O'Brien, 2 Ind. 423, to some extent favors this position; and such is the common law. See 3 Blacks. Comm., Shars. Ed., note to p. 265. But the case of Collins v. The State, 8 Ind. 344, which is approved in Gulick v. New, 14 Ind. 93, is inconsistent with’ the proposition stated, and' inaugurates a different practice, to this extent, that the courts will not aid, by mandamus, an officer illegally elected to get possession of the office to wrhich he claims to be elected. In this case, had the Governor refused to commission Mr. Beal, the Court, being satisfied of the illegality of his election, would have refused a mandamus if it followed the above cited case. To this extent the new practice may be reasonable; but the granting of an injunction to restrain the Executive-is a different thing, and we do not think the principles or practice of the law will justify it, unless in some special case that might be made. Here, no irreparable injury calls for the interposition by injunction. Mr. Bead would be a de facto judge. The public would not suffer from his acts. The salary is not large enough to put very great pecuniary interests at stake, while the proper legal remedy by information, in the nature of quo warranto, might be pending. Indeed, it is not alleged that the Governor threatens to commission Mr. Beal. See Markle v. Wright, 13 Ind. 548.

We come, then, to the conclusion that a case is not made entitling the plaintiff to the remedy he has adopted; and, hence, we might have avoided expressing an opinion on the question of the legality of the election, the main question between the parties; but we thought the public interest might be served, and litigation be prevented, by following the precedent set by the Supreme Court of the United States, in Marbury v. Madison, 1 Cranch’s Rep. p. 137, and we have done so.

J. L. Eetcham, J. E. McDonald, B. L. Walpole and D. Caven, for the appellants.

J. Morrison, J. D. Howland, H. C. Newcomb and T. A. Hendricks, for the appellee.

Per Curiam. — The judgment is reversed, with costs. Cause remanded, &c.  