Telegram-herald. ([Grand Rapids, Mich.) 18??-1892, 1891-02-06

Is M. 4ls, Mod w. b2rsllng, IL ksne
les; sEzts W. eoods. Al n. j. L. 80
Bsal w. Aoxtoa. - led. S4es People Va
/ Grassy, vi n 4. slS; fonxy vs- hsffs,
KY S. n. K els; oxcoxd ". fo2kn'
"a Mica. -.
| ghlnk the true doctrine - as issd
down IA the text 81 AexShsRa Oh paslsS
officers ard oraess, as pa2es u.s. ies
zl74; That al eiscssoa 30 III vacancy
Of ghlca no notice MAS gsseas anu
which MAS IA tact knosa 10 bat few o.
| the voters, - VOID; bat, tnoa<A
| the oftcl4l notice MAS not gwen
or Il gwen, not II tae pre-
sersbed form, vet II rne election has
been heid, and tns great body u TIC
voters had notice M fact, Of the Va
eaaey, this. coupled with the fact that
they are presumed 10 know that liis
| Ian requires the vacancy 20 be filied 81
| the next election, Is sufficient, even
| though many fetgalned from voting be-
cause OF difference or the constfae-
I tioa of the an. See also jones va
| GI.dley, 20 Kansas 5s4; State vs.. sxiry-
| ing, 10 Nebraska 4s7s Foster rs. scarn.
/ Is OHIO 532; tom vs.. Smith, l32 Aassa-
chuselts 2sS, D.saon W. Smith, 10 Iowa
2ls.
| The question to be considered in these
| cases Is whether the wan. OF the statu-
| tory not &c has resulted In depriylng
| sufficient electors OF tho opportunity To
| exercise their franchise TO change the
! result OF the election; and the election
| should not be set aside when Is IS ap-
parent That the result would not have
| been different had all the electors voted.
| I'm the ease before US IL Is evident that
al the electors in the county OF Kent
had nearly, II not quite, as full notice
that an election for circuit judge was To
| take Ilace, as II such notice bad come
| through the official statutory notice. Ii
was notorious that the relator was a
candidate. That his party had noml-
mated and were supporting him for this
| office, claiming that under the constltu-
tion and laws Of this State a vacancy
| had occurred in this office, which WAS
| required to be filled at the election or
| November 4, 1890. The newspapers
| were full of his candidacy, and OF hlS
| attempts TO obtain official notice of the
| election. Every Democratic ticket bore
his name for the Office. printed by au-
| thority. Notices of the election were
| posted IN every voting precinct, unoffi-
cial it Is true, but yet bringing the fact
! home TO the electors that a large por-
! ton of the electors, comprising one OF
the principal political parties IN the
| country, were insisting that vacancy
| had occurred IN the office of such CIR
cult judge, that the law required such
vacancy to be filed ct that election,
and that they were supporting the re-
lator as candidate for such office.
1t is not to be inferred from the cir
cumstances surrounding and leading
up to this election, that the consider
able number OF the electors OF the
| county of Kent were unaware OF the
| candidacy OF relator, or thatan election
was being held tofill an alleged vacancy
| in the office of circuit judge. On the
contrary it clearly appears that the
| other political parties and the voters OF
such parties, refralned from taking
part IN such election under the belief
that the vacancy existed and that Act
No. 81 of the Public Acts of ls9, ex-
tending the term OF the respondent
until December 81, 1898, was CONSTITUTE
onal and valid.
| Upon the presentation and argument
of this application for mandamus was
strongly impressed with the idea that
| such electors were justified III relying
upon statute Of the abate, which had
not been declared invalid, and refrain
| ing from voting for candidate for this.
Office, and that, therefore, the election
could not be a legal one without the
official notice provided by the statute.
But on consideration and review of
| the authorities | have arrived at a dill
| ferent conclusion. An unconstitutional
| law is no law, and in no case can 1t be
l tt.,,t io, Ent n,,Sy
action or non action. The maxim that
all men are presumed to know the law
1 must prevail. And while there may be
cases where person will not be pun
| ished with costs for not asking action
| in opposition to a law appearing upon
the statute books before the same is de
clared unconstitutional, when such
| costs are in the discretion of the court,
| vet no rights can be founded upon such
| law; nor can any person or persons be
| deprived of any rights or privileges be-
| cause such law has been apparently
legally enacted and appears in the body
| OF our laws.
| If IN the present case but few had
| voted, and 1t appeared that the fact of
| the existence of a vacancy, or that this
| election was the proper and legal time
| TO fill i. was known TO but small por
| e.ou of the electors, so that holding the
| election valid would seem 10 be IL dis
| franchisement of large majority OF
| the electors, | should, under the rule
heretofore quoted from Meechem on
| Public Officers and Offices, be constrain-
ed to hold that no local election had
J occurred for this Office. And this, /
| think, would be in accordance with the
ruling of this court, III Secord VS..
| Foutch, "A Mich. 80, where Judge
Campbell says: ain the present case 1t
| is entirely clear that there could have
been 10 general idea that there was an
election tor justice of probate, was no
opposition candidate, and the number
OF votes is conclusive of the genera! un.
Outstanding. 1t IS q
necessary safeguard to popular cleo
tons that tho people be informed OF
what officers they are to vote for. They
may he expected to know what elec-
tons are to be made at the regular gen
eraI election, and as TO these in ordin-
airy cases it might be dangerous to allow
failure to give notice TO AVOID the
election. This would enable the popular
will to be defeated by the misconduct
of ministerial offices. But there can be
no such knowledge assumed concern
lag vacancies in oshce and without
GONE distinct and public notice OF some
sort. such an election could hardly fail
10 he capable of the worst kind OF
trIckery."
| But TINS j. not such case, and seems
to be governed by the case of the Poo
pie W. Hartweil, Il Michigan sos. The
constitution aud our laws plainly pro
/ v-5ds .nat vacancy erlsfed IN this of