DISSENTING OPINION. The appellant, mayor of the city of New Albany, and president of its common council, refused to appoint a board of election commissioners as required by Acts 1921, ch. 218, § 4, § 10191 Burns 1926, to hold an election on the question of whether the city of New Albany should adopt a city-manager form of government, for the reason that he believed Acts 1921, ch. 218, which provides for the city-manager and commission forms of government, to be unconstitutional and void. This was after a petition requesting the election signed by 2,353 voters of the *Page 132 city, constituting a number greater than 20 per cent of the 10,774 voters at the last municipal election, had been presented to the common council and an election had been ordered by the council.
The prevailing opinion holds that appellee, who is a resident, elector and voter in the city of New Albany and was a petitioner for the election, cannot by a mandatory injunction compel the mayor to appoint election commissioners to hold such election because he has no personal interest in the litigation different from that of the general public and will not suffer any special or private injury to his property rights, and has the legal remedy of mandamus if appellant's refusal to act is wrongful, and because no bond was filed to secure appellant against damages and costs.
We cannot agree with this decision for the following reasons: (1) The complaint alleges and the record shows that the legal remedy of mandamus is not adequate. (A suit in mandamus was brought and was pending at the time this action was filed, and appellant unsuccessfully attempted to file a plea in abatement based on such fact.) Although a party may have a legal remedy, injunctive relief may be granted, if such legal remedy is not as practicable, efficient and adequate as that afforded by equity,Fisher v. Carey (1918), 67 Ind. App. 438, 119 N.E. 376, and cases cited, and while mandamus is the usual remedy to compel officers, charged with the conduct of elections, to perform specific ministerial duties imposed upon them by law, it is not the exclusive remedy, and an injunction will lie to compel performance where mandamus would be too slow or otherwise insufficient or ineffective to afford adequate relief. 32 C.J. 257; Potter v. Campbell (1913), 155 Ky. 784, 160 S.W. 763;Mason v. Byrley (1904), 26 Ky. Law Rep. 487, 84 S.W. 767. See, also, Bourke v. Olcott Water Co. (1911), 84 Vt. 121, 78 A. 715, 33 L.R.A. *Page 133 (N.S.) 1015, Ann. Cas. 1912d 108; Boyce v. Grundy (1830), 3 Pet. (U.S.) 210, 7 L.Ed. 655. If the slow processes of an action at law (mandate) are not adequate and effective to compel a ministerial officer to perform the duties essential to an election imposed by law upon him and which he refuses to perform immediately prior to the time of the election, the rights of the electorate should not, by reason of that fact, be completely defeated and the election made impossible.
(2) Citizens and voters are, or should be, vitally interested in their government, and they have a right to have an election that has been provided for by law (if that law is valid) to determine the form of their local city government. This right is more of a personal right than a property right, although the form of local government may materially affect the voters' property rights. In recent years, personal rights have assumed a more important and recognized place in the field of law, and while the courts have usually discovered at least a nominal property right on which to base the granting of equitable relief (as inEllingham v. Dye [1912], 178 Ind. 336, 99 N.E. 1, Ann. Cas. 1915C 200), the doctrine is now recognized that personal rights as well as property rights deserve adequate protection in equity. See note in 14 A.L.R. 295.
(3) Appellant's reason for not appointing commissioners and holding the election, viz., that Acts 1921, ch. 48, is unconstitutional, was not a valid and sufficient reason. All his contentions to support his claim that this act is unconstitutional were considered at length and adversely to his contentions in Sarlls, City Clerk, v. State, ex rel. (1929),ante 88, 166 N.E. 270.
The judgment should be affirmed. *Page 134