I am unable to concur in the foregoing opinion. The exigencies of the case will not permit me to state the reasons for my dissent at length, hence I must content myself by merely giving an outline of them.
(1.) In my opinion, the resignation of Judge Oswald, and the acceptance by the governor of that resignation, notwithstanding both were sooner announced, took effect as of September 1, 1926. There was therefore no vacancy in the office of judge at the time the declarations of candidacy for the office were filed, and no vacancy at the time the auditor certified to the list of candidates. The filings were therefore mere nullities, entitled to no consideration whatsoever, and the county auditor was in error in certifying to them as lawful filings. For this reason, the names of the declarants were wrongfully upon the primary ballots, and to say, as the majority in effect do say, that they may now, because of their wrongful act and the wrongful act of the auditor, obtain a place on the official ballot at the coming general election as regularly nominated candidates for the office, is to allow them to take an undue advantage of their own wrong.
(2.) Since there is now a vacancy in the office of judge, the office is open to be filled by the electors at the coming general election. But the field is open. The electors should be permitted to choose whom they please, unhampered by any printed names on the general election ballot.
(3.) I cannot conceive that the case on which the majority rely is here controlling. In that case the candidate *Page 524 was entitled to a place on the official ballot. The sole question was whether he was thereon under a proper designation, and the court could well say that this was a question to be settled before the general election was held, since to give effect to the charge after the election would deprive the electors of their right to choose their officers. But the sole purpose of a primary election is to determine who shall be entitled to a place on the official ballot as the nominee for an office. It is not an election of an officer, and to say that a person wrongfully nominated shall not profit by it, is not to deny the right of the electors to choose their officers; it is but to say that they may choose their officers unhampered by the wrongs and mistakes of the election officers. Certainly, it seems to me, an elector interested in the event of the general election at which officers are to be chosen, may question the lawfulness of a nomination, if he acts in time so as not to delay or hinder the election officers in the performance of their duties. In this instance the relator has so acted. He has proceeded before the general election is held.
(4.) The relator is not entitled to the specific relief he asks. He is no more entitled to have his name printed on the general election ballot than is any of the other candidates for the office. But he prays for general relief, and this should be granted. The officers preparing the election ballot should be directed to designate thereon that there is an office of judge to be filled, but should not print thereon the name of any candidate. *Page 525