J.—While concurring in the opinion of the court, to the extent that it holds that an information to try the title to an office can only be tried,—unless by consent,—in the county in which the defendant resides, I do not concur in the view that there was such a want of jurisdiction in the court below, over the person of the defendant, as excuses this court from giving a statement in writing of each question arising in the record, and the decision of the court thereon.. Section 5, Art. 7, Const. The record discloses that the appellant was personally served with summons in Marion county, that he appeared in person and by counsel, and pleaded in abatement of the jurisdiction of the court. It, therefore, became at most a mixed question of law and fact, to be determined by the learned judge, whether or not jurisdiction of the defendant’s person had been acquired, either by the process of the court, or by the consent of the defendant. The court may have decided erroneously, but if it did, this was an error in no sense different from any other which occurs in the progress of a cause. As is said by a standard author: “There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. At common law the defendant was brought within the power of the court by service of the brevia, or original writ. In this country the same object is accomplished by service of summons, * * * or by the voluntary appearance of the defendant in person, or by his attorney. From the moment of the service of process, the court has such control over the litigants that all its subsequent proceedings, however erroneous, are not void. If there is any irregularity in the process, or in the manner of its service, the defendant must take advantage *89of such irregularity by some motion or proceeding in the court wherein the action is pending.” Freeman Judgments, section 126.
It can not, therefore, with propriety be said, that the court below had no jurisdiction over the person of the defendant. It decided upon inspection of its own process, that it had jurisdiction, and while it may be true, that upon the facts as-they appear, or may be hereafter shown, its jurisdiction may have been defectively obtained, and that the restraining order may well be for that reason dissolved, it does not follow that this court, because it finds one error, is thereby excused from giving its decision upon the real questions which the record presents.
Certainly no court has ever set up the unwarranted pretence that it could with propriety either give a decision, or intimate an opinion, in a case which involved a subject-matter over which it had no jurisdiction, or where it had no jurisdiction of the parties.
The record before us does not present such a case. If the court below had decided, as it very properly did, in the recent case of Smith v. Myers, ante, p. 1, that it had no jurisdiction of the subject-matter, the duty of this court would have terminated with the examination of that question. So, also, if after having acquired, through its process, jurisdiction of the-appellant’s person, it had decided that its jurisdiction was so imperfect as not to warrant it in proceeding further, the examination of that question would have ended our duty on this appeal. The court below, however, decided that it had jurisdiction of the person of the defendant, and proceeded to adjudge other questions which appear in the record. Precedents will be looked for in vain to support the proposition that an erroneous decision of a nisi prius court, on the subject of the completeness of its jurisdiction over the person of a litigant, renders it improper for an appellate court, after the? nisi prius court has-held its jurisdiction complete, to examine-*90•other questions subsequently decided by such court, and properly presented by the record.
The reasons why such questions should be passed upon is, that it is within the power of the parties, at any moment, to perfect the defective jurisdiction of the court below over their persons by consent. We can not say in advance, that they may not do so, especially if the decision of the court should be favorable to the party defectively served.
“ This is in accordance with the general line of judicial precedent, and is sanctioned by an example furnished by so illustrious a tribunal as that of the Supreme Court of the United States, under the presidency of Chief Justice Marshall, he himself delivering the opinion in the given case. Marbury v. Madison, 1 Cranch, 137. We can not greatly err in following the precedent set by so learned and pure a court.” State, ex rel., v. Allen, 21 Ind. 516.
The questions of chief concern to the parties, and which, by reason of the relation of the parties to the State, are of vital importance to the public, relate to the jurisdiction of the ■court over the subject-matter of the information. This subject also involves the validity of the election held in November, 1886, for Lieutenant-Governor.
These subjects concern-the second office in one of the departments of State. Between .the office in contest, and that of Chief Executive of the State, is interposed only the slender thread upon which hangs a single life. Should the Governor become disabled, the confusion which vexes the public service now would be transferred to, and turn into chaos, the office of the Chief Executive, to be settled by such means as •the contestants and their respective adherents might be able ■and willing to employ.
The question always properly first in order in every court is, whether it has jurisdiction over the subject-matter of the suit. This and cognate questions were elaborately argued by learned and eminent counsel on both sides. The exigencies ■of the public service demand that they should be settled.
*91The relator’s case proceeds upon the theory that an election for Lieutenant-Governor can only occur once in four years. His claim is, that in April,’1885, the Senate, of which body he was then and still is a member, elected him as its president pro tempore. By virtue of this election, he asserts that he became vested with a right to discharge the duties of the office of President of the Senate, on any occasion when the Lieutenant-Governor should thereafter be absent, until the Senate, in its pleasure, should • remove him. He alleges that the Senate, when it assembled in January, 1887, recognized his right, and re-elected him to the office. Thus he claims to have been incumbent in the office of President of the Senate by a title founded in the Constitution, at the time and before the election in 1886 occurred, and that he is now in the discharge of its duties under the authority of the Constitution.
Thus he asserts that the Constitution has prescribed a method for supplying any vacancy which may occur in the office in question during the period intervening quadrennial elections, and that by his election by the Senate, the office was supplied before the election in 1886 occurred. Hence, the argument is, there was no vacancy which authorized or required an election by the electors of the State, or which gave color of support to any of the subsequent steps in that connection, resulting finally in the declaration by the Speaker of the Plouse that the respondent had been elected to the office of Lieutenant-Governor.
The position of the respondent is, in effect, that if both the law and the fact be as claimed by the relator, yet the court can not so decide: First. Because the controversy involves a contest over the election of, and is, therefore, said to be a contested election for, Lieutenant-Governor. All such contests, it is argued, arc by the Constitution expressly committed to the final determination of the General Assembly. Second. Becaiise, even though this should not be considered •a case of contested election, since the subject of the informa*92tion involves the right to exercise an office which pertains to a co-ordinate branch of the State government, the contention is, that it is a matter exclusively of political, and not of judicial concern. Hence it is said the subject-matter is foreign to the jurisdiction of, and is not cognizable by, the courts.
The first question for consideration, therefore, is, do the facts presented' in the information make this a case of contested election, within the purview of section 6, article 5, of the Constitution, which reads as follows: “ Contested elections for Governor or Lieutenant-Governor shall be determined by the General Assembly, in such manner as maybe prescribed by law?”
Pursuant to this provision the General Assembly has enacted, in substance, that the election of any person declared elected by popular vote to any State office, may be contested by any elector entitled to vote for such person. Provision is made for the organization of a committee, to be selected from the members of both houses, before which the contest is to be carried on. The causes of contest are prescribed, and the mode of procedure marked out. The judgment of this committee is to be reported to each house separately, and is to be conclusive.
The causes for which an election may be contested are, (1) irregularity or malconduet; (2) ineligibility of the contestee; (3) infamous crime in the contestee; (4) illegal votes. Section 4756, R. S. 1881.
An examination of the Constitution and the legislation which has followed makes it manifest that all contested elections for Governor or Lieutenant-Governor are committed to the exclusive judgment of the General Assembly, to be determined by the committee for which provision is made, under the rules and regulations prescribed in the statute.
From the authorities and upon principle, these general conclusions may be deduced: 1. When the Constitution confers the power, and enjoins the duty, of determining eon-*93tested elections upon the General Assembly, its power in that respect is plenary, final and exclusive, in the specific cases mentioned. 2. When the Constitution confides to a legislative body the power to judge of the election and qualification of its own members, the exercise of that power belongs exclusively to the body to which it is so committed, and is not the subject of review in the courts or by any other body. State, ex rel., v. Baxter, 28 Ark. 129; State, ex rel., v. Marlow, 15 Ohio St. 114; State, ex rel., v. Tomlinson, 20 Kan. 692; People v. Mahaney, 13 Mich. 481; People v. Fitzgerald, 41 Mich. 2; Alter v. Simpson, 46 Mich. 138; State v. Gilmore, 20 Kan. 551 (27 Am. R. 189); O’Ferrall v. Colby, 2 Minn. 180; Cooley Const. Lim. 133; McCrary Elec., section 515; Hulseman v. Rems, 41 Pa. St. 396.
While it is undoubtedly true that every contested election involves the title to an office, it can not with propriety be said that every contest or litigation which involves the title to an office, is a contested election. If the relator had, as he assumes, a vested legal right in the office of President of the Senate, which had its inception, and attached to him prior to, and which is in no wise dependent upon, or connected with the election through which the respondent claims, it is not apparent how such right can become involved in a contested election. If, under the Constitution and law, the relator had a right anterior to the election, and if, as he further assumes, the election was unauthorized, then the mere holding of such election could not involve the pre-existing title in an election contest. The vested right could not have been annihilated by an unauthorized election, nor can the question of the existence of such a right, anterior to and independent of the election, be taken out of the cognizance of the judicial tribunals, by the mere fact of an election. Magruder v. Swann, 25 Md. 173.
The logic of the adverse contention is, conceding all that the relator claims in respect to his antecedent right, as well ns the invalidity of the election, that the title of the relator, *94has nevertheless become so involved in and confused by the form of an election, that there is now no power to ascertain and declare the title, except by resolving the controversy into a case of contested election, and by sending it to the General Assembly. By this method of reasoning, the jurisdiction of the court over the subject-matter is sought to be defeated.
This view of the situation is not, in my opinion, maintainable either in reason or upon authority.
The right in dispute is cognizable only by judicial authority. All the judicial power of the State, except such as is specifically conferred upon other departments of the government,, is committed to the courts. The authorities support the proposition that where one department of the government is, in special cases, authorized to exercise power which belongs in general to another department, the exercise of such power will be limited strictly to the subjects specially enumerated. To declare what the law is, is a judicial function. Kilbourn v. Thompson, 103 U. S. 168; Marbury v. Madison, supra; People v. Keeler, 99 N. Y. 463 (52 Am. R. 49).
The judicial power committed to the General Assembly is,, in respect to the subject now under consideration, only such as strictly pertains to cases of contested elections for Gov-ernor and Lieutenant-Governor. The causes for such contest are specifically enumerated in the statute. These causes are only such as arise out of, and pertain to, an election.
Before there can be a contested election, an election must ■have been held. An election implies the choice of a qualified person to an office, by an electoral body, at the time, and substantially in the manner and with the safeguards provided by law. The electoral body may manifest its choice in a manner which leaves no doubt of the fact of choice, yet, if such choice be manifested at a time, or under conditions, unknown to the law, the fact of choice, however unmistakable, goes for nothing. Under a government such as ours, the people derive their power to elect officers from the written law, which they themselves have prescribed. It is-*95not inherent, to be exercised upon any and every occasion when they may assemble together. The force and efficacy of the ballot are derived from the Constitution and laws, and no one can predicate title to an office upon a popular vote, unless such vote was cast at a time when the Constitution and laws authorized an election for that office to be holden. People v. Weller, 11 Cal. 49; Foster v. Scarff, 15 Ohio St. 532; Sawyer v. Haydon, 1 Nev. 75; Biddle v. Willard, 10 Ind. 62; Commonwealth v. Meeser, 44 Pa. St. 341; State v. Stauffer, 11 Neb. 173; State v. Whittemore, 11 Neb. 175; State v. Buck, 13 Neb. 273; State v. Hedlund, 16 Neb. 566; McCrary Elec., section 109; Cooley Const. Lim. (5th ed.) p. 747.
If, by the Constitution, the electors had surrendered to-.others, chosen by themselves, the power to supply the office, the title to which is in dispute, by electing another to perform the duties of the office, they may not, without changing the fundamental law, resume such power at their pleasure. The adverse argument is, in effect, that because there has been an election in form, the court may not inquire whether there has been an election in law. Because a title to an office is asserted as the result of an election, the pre-existing title of an incumbent in the same office becomes merged in the form of such election, and is hence no longer a subject of judicial inquiry in the courts.
Having assumed the point in dispute, viz., that there has been an election, the definition of the word “contest” is made the basis for the conclusion that this is a case of contested election.
But, i't is said, even if this be not a case of contested election, the subject of the right or office in dispute is cognizable solely by the political department of the State government. Plence, it is said the court below has, and had, no jurisdiction to entertain the subject of the information. Whatever the determination of the General Assembly may be, even though, as in the case now under consideration, one branch of the *96Assembly determines in favor of one claimant, and the other branch in favor of the other, it is said the judgment of the ■General Assembly is conclusive on the courts, and the people, in a case like this. The argument is, that an exposition by the courts of the law of the case would be to subordinate the supreme will of the Legislature,—would be an encroachment upon its prerogative.
The argument addressed to this feature of the case derives its force mainly from the alleged impotency of the court. Whatever its judgment may eventually be, it is said, it possesses no power to enforce its mandate, and hence its jurisdiction would be futile. The assumption is, that under our system of government, official station may be of such quality and degree that ail inquiry into the title or pretence of one who asserts a right or claim to such station, is denied the judicial department.
In respect to this assumption, an author, distinguished for his learning, has said : “ There is a basis of truth in this argument : the executive of the State can not be subordinated to ■the judiciary, and may, in general, refuse obedience to writs by which this may be attempted. But when the question is, who is the executive of the State, the judges have functions to perform, which are at least as important as those of any other citizens, and the fact that they are judges can never be a reason why they should submit to a usurpation. A successful usurpation of the executive office can only be accomplished with the acquiescence of the other departments; and the Judges, for the determination of their own course, must, in some form, inquire into or take notice of the facts.” Cooley Const. Lim. 786. High Extraordinary Legal Remedies, section 634; Kerr v. Trego, 47 Pa. St. 292.
It has been contended, in effect, that this is an application to the court to determine who shall jDreside over the Senate, •and that because that body is a branch of an independent department of the State government, it has the inherent and .exclusive right to determine that question for itself. That *97if it determines that the relator has the right, it is possessed -of ample power, without the aid of the court, to protect him in its enjoyment, and if it is the pleasure of the Senate that the respondent should preside, it is not in the power of the court to subordinate its will. The argument is specious, but it rests on a misapprehension of the case as it appears upon the record. The court is not asked to confer a right upon, or create a title in, the relator; nor is it asked to determine who shall preside over the Senate. The case proceeds upon the theory that the Senate, in the exercise of its constitutional prerogative, has conferred the right upon the relator, ■and that the respondent is unlawfully interfering with the right so conferred, and still recognized as existing, by the body which conferred, and had the power to confer, the right. 'The judgment of the court in this, as in all other controversies concerning the rights of parties, can not create the right in.one, or destroy it in the other. The rights of each are fixed by the Constitution, and the jurisdiction of the courtis invoked, as the mere instrument of the Constitution, to ascertain and declare their rights as they are.
The office of the court in all controversies is, not to create rights, but to ascertain and enforce them when ascertained. In this respect the case "is not different from any other controversy between parties, involving rights of property. Nor is the jurisdiction of the court to be determined by the situation of the parties, or their ability to enforce their respective rights, without the aid of the court. Because a controversy has arisen between two individuals, involving the right or franchise to preside over the Senate, in no legal sense involves the Senate, as a legislative body, further than such controversy may affect the dignity and decorum which should attend its sessions. The Senate has no more power to adjudicate, except provisionally, upon an existing legal right or title of its presiding officer, than it has upon the legal rights •of any other individual. Grant that the Senate has the *98power, as it doubtless has, to refuse to permit its chamber to-be made the arena in which to settle the disputed right or-title, by such means as may seem available to the parties, does it follow that either party is forever precluded from invoking the judgment of the law upon the right in dispute?' The General Assembly can not, nor can either branch of it, act judicially upon the right in dispute. Suppose it be true, as is claimed on the one hand, that the relator is presiding, over the Senate without authority of law and in open defiance of the lawfully expressed will of the people, will it be said that because he does so with the concurrence of the Senate, and under the protection of its officers, the respondent’s right is destroyed, unless he establish it by force? Must the right be forever abandoned without judicial examination ? Or suppose it be true, as is asserted on the other hand, that the respondent, in defiance of law, being supported by the House, intrudes into, and interferes with the-constitutional rights of the relatox’, are the parties without other means of settling their rights under the law, except it, be to set their respective supporters in array ?
The x’iglxt must remain in perpetual dispute until some tribunal, which has authority to pronounce judgment on the case, declares in favor of one party or the other. The law is without force or efficiency until vitality is breathed into it through the judgment and process of the court. Until the court speaks the judgment of the law, the contest must proceed by methods extx’a-judicial, unless one party or the other-abandon his claim. Shall the court, the exjronent of the law, though formally invoked, refuse to speak, while the unseemly contest goes on ? Or must it first inquire whether the party against whom it may declare, will obey the voice of the law before it makes response?
It can not be admitted or shown that the parties are reduced to this extremity. The same Constitution which conferred the right, wherever it may be lodged, has provided the-remedy for its protection. That instrument requires that. *99“All courts shall be open; and every man, for injury done to him in his person, property, or reputation shall have remedy by due course of law.” Authority to adjudge the disputed claim having been lodged in no other tribunal, the courts must declare the law, and then it becomes the duty of the Chief Executive, under the sanction of his oath, to “ take care that the laws be faithfully executed.”
Whenever it becomes a question whether or not there was a vacancy to be filled by an election or appointment, or where the question is, did the law authorize the election or appointment in a given case, it is universally held that the courts have jurisdiction to determine the law of the case. There is no authority which holds to the contrary. Commonwealth v. Meeser, 44 Pa. St. 341; Prouty v. Stover, 11 Kan. 235; State v. Francis, 26 Kan. 724; Page v. Hardin, 8 B. Mon. 648.
A decision by the Legislature, that a constitutional office is vacant, can not destroy the pre-existing title of an incumbent.
The question presented by the record, and questions closely analogous, have been the subjects of adjudication in the courts of last resort in some of the States, as well as in the Supreme Court of the United States. Uniformly, the jurisdiction of the courts to determine the title to an office is maintained, unless the right to determine such title has been expressly confided to some other tribunal. The person claiming such a vested right may invoke the aid of the court, to ascertain and protect his right, against any one who unlawfully assails it. Thus, in the case of Marbury v. Madison, supra, which involved the right of the court to coerce the delivery of a commission by the head of one of the departments of the Federal government, through which it was claimed an individual had secured a vested right in an office, Chief Justice Marshall said: “ If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it can not be pretended, that his office alone exempts him from being sued in the ordinary *100mode of proceeding, and being compelled to obey the judgment of the law. * * * It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing the mandamus is to be determined.”
The proceeding here is not against the respondent as an officer, but because, it is alleged, he unlawfully assumes to act as such, to the injury of another, who claims the right. Being sued as an individual who is wrongfully attempting to exercise the functions of an office, he may not cover himself with the mantle of the office in dispute, and in that character claim that he is so related to a co-ordinate branch of the government that all judicial inquiry must be suspended. Attorney General v. Barstow, 4 Wis. 567; Cunningham v. Macon, etc., R. R. Co., 109 U. S. 446; United States v. Schurz, 102 U. S. 378; United States v. Boutwell, 17 Wall. 604; Kendall v. Stokes, 3 How. 87; Bates v. Clark, 95 U. S. 204; United States v. Lee, 106 U. S. 196; Poindexter v. Greenhow, 114 U. S. 270; High Extraordinary Legal Remedies, sections 634, 635, and notes.
Whether the court below properly entertained jurisdiction of the subject-matter of the information, can only be determined by inquiring whether the election held in November, 1886, for Lieutenant-Governor, was or was not a valid election. If the election was authorized by the Constitution and laws, then the votes of the electors communicated a title to the office of Lieutenant-Governor, to the respondent, which can neither be impeached nor inquired into save by the General Assembly.
If the election was not authorized by law, then in legal contemplation there has been no election, and the pre-existing title of the relator can not be involved in a case of contested election. His title, in that event, is the subject of adjudication in the courts. Matthews v. Board, etc., 34 Kan. 606.
Article 5 of the Constitution, entitled “ Executive,” creates two offices, or public stations, and makes provision for *101.the election'of three officers. The offices created embrace the duties of the Chief Executive of the State, and those of the President of the Senate. The officers for whose election and. service provision is made, are éntitled respectively, Governor, Lieutenant-Governor and President of the Senate. These stand related to each other so as to supply an order of succession. The first two are elected by the people, and are each to hold their office during four years. The third is to be elected by the Senate, whenever the occasion may require. While the officer entitled Governor fills the Chief Executive office, the one entitled Lieutenant-Governor is, so long as he is able to attend, virtute officii, President of the Senate. While the Lieutenant-Governor presides over the Senate, he who may become President is a senator. In the absence of the one next above, the one next below succeeds to his duties. In respect to the first two, the plain implication is, that when one is chosen the other must be. This inference arises from the manner in which the elector is required to designate for whom he votes, and from the manner of the return, canvass and publication of the vote. The 'official term of both is fixed alike, the beginning and ending thereof being fixed for all time. The duties which pertain to the office of Chief Executive are prescribed, and provision is made, that in case of the removal from office of the Governor, or of his death, resignation, or inability to discharge the duties of the office, the same shall devolve on the Lieutenant-Governor. Section 10 also enjoins upon the General Assembly to provide by law for the case of removal from office, death, resignation, or inability, both of the Governor and Lieutenant-Governor, and to declare what officer shall then act as Governor. The officer so to be declared is then to act accordingly, until the disability be removed, or a Governor be elected. It is provided that the Lieutenant-Governor shall, by virtue of his office, be President of the Senate, with the right to join in debate, and vote when the Senate is in committee of the whole, and to give the casting vote when *102the Senate is equally divided. Such other duties as are annexed to the office of President of the Senate arise by parliamentary law. The duties thus assigned to the Lieutenant-Governor are precisely those which parliamentary law assigns to the presiding officer or speaker of a legislative assembly. Cushing Par. Law, sections 306-310. Section 11 provides that whenever the Lieutenant-Governor shall act as Governor, or shall be unable to attend as President of the Senate, the Senate shall elect one of its own members as President for the occasion.
Thus it will be seen that the 5th article of the Constitution has created the executive office, divided it into official terms of four years each from a given day, and .provided that the tenure of those who may fill the office, or discharge its duties, shall be four years. It has also created the office of President of the Senate, and designated the manner in which it shall be supplied with an incumbent. It has made provision for the election of three constitutional officers, to the end that two constitutional offices may be constantly, and without interruption, supplied with incumbents. Two of the officers are to be elected concurrently, by the electoral body at large, every four years. The election of the third may or may not be held in abeyance, until the occasion for his election arises. When the occasion arises he is to be elected by the Senate. The inquiry then is, how may the occasion arise, which requires the election of the third officer for which the Constitution has made provision, and what are to be his official duties when he is called into being ?
Provision having been made for three officers, while concurrent duties were prescribed for but two, the inference arises at once, that the framers of the Constitution deliberately contemplated that emergencies might arise, in which a supernumerary officer would be necessary, in order to secure the discharge of the duties pertaining to the executive department. It is at once apparent that an order of succession was accordingly arranged, so as to prevent the possibility of a *103vacancy during any of the executive terms into which the future had been divided. Contemplating the possible removal from office, or the death, resignation, or other disability of the Governor, and to the end that the executive •office might not thereby become vacant of a constitutional incumbent, it was provided that upon the happening of any such event, the duties of that office should at once devolve upon the Lieutenant-Governor. This provision made it impossible that the succession in the office of Governor should •ever be broken during an executive term, or the office become vacant while there remained a Governor, or Lieutenant-Governor qualified to act.
Foreseeing, moreover, that in the event the Lieutenant-Governor should be required to assume the functions of Governor, he would be unable to perform the incompatible duty •of acting as President of the Senate, and realizing that the Lieutenant-Governor might be unable to attend as such President by reason of death, resignation, or other cause, the framers of the Constitution ordained that it should be the •duty of the Senate to elect a President pro tempore, for any such occasion. This was to the end that a qualified person might be at hand, or might at once be supplied, when the occasion demanded, who should be clothed with the power to discharge the duties which by the Constitution were assigned to the Lieutenant-Governor in virtue of his office.
Thus it will appear, by attending to the constitutional ■scheme, that there never can be a moment, during any quadrennial period, when the Constitution itself has not supplied an officer, qualified to discharge the duties assigned to the Governor, or Lieutenant-Governor, without calling for the intervention of the electoral body.
In the character of Lieutenant-Governor, that official is required, during the inability, whether temporary or continíuous, of the Governor to discharge the functions of the executive office; while during any like inability of the Lieuten*104ant-Governor to act as President of the Senate, the duties of that station are devolved upon the President pro tempore.
Still further, the article of the Constitution which makes provision for the succession in the executive office, contemplates the possibility that both the Governor and Lieutenant-Governor may at the same time be disabled from discharging the functions of their respective stations.
So far attention has been given to the precautions taken in order that a vacancy might not occur, in the event of the death or disability of one or the other of these two officers. As it seems to fortify the conclusion that in no event was it contemplated that an election should intervene during the progress of an executive term, it may be well to consider briefly the other contingency provided for. What was deemed necessary in the event of the death, resignation or inability of both Governor and Lieutenant-Governor? Was it contemplated that a vacancy would or might then occur in both offices? Clearly not. This is apparent.from the fact that the General Assembly was enjoined to declare what officer should, in such an emergency, act as Governor. And why not, in the event of the death or resignation of both, also declare who should then be Lieutenant-Governor? Plainly because the only duties annexed to that office pertained to the Senate, and,, therefore, in the next succeeding section, to the Senate was-committed the duty, in any and every contingency, of supplying a person to perform those duties. There was hence-neither necessity for, nor propriety in, an injunction that the General Assembly should declare by law who should act as Lieutenant-Governor, in case of the death or resignation of that officer. The duty of supplying a person to perform the functions of that office was to be, and was, committed without limitation to the Senate, by requiring the election of a President pro tempore, as often as occasion might require.
In pursuance of the constitutional mandate, the General Assembly provided in section 5559, R. S. 1881, as follows; “ In case, by the removal from office, death,” etc., “ of both *105Governor and Lieutenant-Governor, a vacancy ocewrs in the office of Governor, the President of the Senate shall act as Governor until the vacancy be filled; and if there be no President of the Senate, the Secretary of State shall convene the Senate for the purpose of electing a President thereof.”
It thus appears that the Constitution, and also the legislation which followed in obedience to its requirement, indicate-that the only account which was to be taken of the death, resignation or other inability of the Lieutenant-Governor was, that if the Senate had not already done so, it should, then elect a President pro tempore.
It follows from a proper construction of the Constitution, that there can be no vacancy in the office of Governor or Lieutenant-Governor, so long as either remains qualified to act. Upon the death or disqualification of both, the Constitution contemplates that a vacancy may occur in the executive office alone. To meet such a possible emergency, it required the General Assembly to declare by law what officer should then act as Governor. This has been done accordingly.. The confusion in which the situation is involved grows out of an attempt to confound names with things, titles with offices. It seems to be supposed that the duties and office of Lieutenant-Governor and President of the Senate, which, in virtue of his office, the Lieutenant-Governor may or may not fill, depending on circumstances, can only be filled by supplying some one to act therein with the title of Lieutenant-Governor. This is the fundamental error which underlies the appellant’s case. An office, without a legally authorized incumbent, is not filled by merely employing a given title, nor can an office become legally vacant while the Constitution supplies an incumbent who possesses all the other requisite qualifications, except the title. It is the substance and not the shadow, the legally elected and authorized incumbent and not the title, that fills the office. In case of the death or resignation of the Governor, the executive office becomes, for the time being, titularly vacant. It does not, however, *106"while there is a Lieutenant-Governor, become vacant in fact. In case the Lieutenant-Governor acts as Governor, or in case of his death or resignation, the office of President of the Senate is, in respect of the name, vacated by the Lieutenant-Governor, but it no more becomes vacant in fact than does the office of Governor in the case first supposed.
The framers of the Constitution were not so much concerned that there should always be two persons supplied with the title of “Governor” and “Lieutenant-Governor,” respectively, as that there should always be at hand two persons, legally qualified to discharge the respective duties of Chief 'Executive and President of the Senate. As was pertinently said in the case of Chadwick v. Earhart, 11 Oregon, 389, “ It is not shown how an office can be vacant and yet there be a person, not the deputy, or locum tenens, of another, empowered by law to discharge the duties of the office and Avho does in fact discharge them. It is not explained how, in such a case, the duties can be separated from the office, so ■that he who discharges them does not become an incumbent of the office. * * It is the function of a public officer to discharge public duties. Such duties constitute his office. Hence, given, a public office and one who, duly empowered, discharges its duties, and Ave have an incumbent in that office.”
In New York a laAV was passed establishing the office of superintendent of insurance. The superintendent AA'as to be appointed by the Governor for the term of three years, with authority to designate his deputy. The deputy Avas to possess the poAvers and perform the duties attached by krw to the office, during the absence and inability of the principal. The ■superintendent resigned his office. The Court of Appeals, speaking of the status of the former deputy after the resignation of the superintendent, said: “ It thus appears that the statute confers, in the case of a vacancy, upon the deputy all the powers, and imposes upon him all the duties, of the office •of superintendent during its continuance. In short, it makes *107him to all intents and purposes acting superintendent for that ■time during which there is and can be no other superintendent. The act contemplates that there shall at all times be a •person clothed with all the powers and subject to all the duties of the office of superintendent.” People, ex rel., v. Hopkins, 55 N. Y. 74.
So it may be said here, the executive department of the State is fashioned upon such a scheme, as that each executive .term consists of four years, each term having’ a definite beginning and ending. The electoral body designates at quadrennial elections two persons, one of whom acquires an absolute right to be Chief Executive for four years. The ■other becomes a contingent, to act in case of the inability of the first named. Meanwhile the Constitution assigns certain duties to the contingent, connected with the Senate. The Senate is authorized and required to supply a contingent for the Lieutenant-Governor, to discharge the duties assigned him in case of his inability to attend as President of the •Senate, and thus the Constitution contemplates that there shall 'be a contingent to the Governor and one to the Lieutenant-Governor, each clothed with all the power, and subject to all the duties of the principal officer.
The argument in support of the validity of, the election has its foundation on section 18 of article 5 of the Constitution. This section provides, among other things, that when at any time a vacancy shall have occurred in any State office, the Governor shall fill such vacancy by appointment, which ■shall expire when a successor shall have been elected and qualified. Learned counsel in support of their position say: :c We maintain * * that the constitution does contemplate vacancies in the office of Lieutenant-Governor. We say it is a ‘State office’ within the meaning of section 18, and that when a vacancy occurs, it being a State office, it is entirely ■competent—nay, it is the duty of the Governor—to appoint a Lieutenant-Governor to serve until a successor can be elected.”
In my opinion this position is wholly untenable, There *108is nothing in the Constitution which so much as raises an inference that the office of Lieutenant-Governor can become vacant, in a legal or actual sense. Nor is the Constitution fairly capable of such a construction as would authorize the strange anomaly of a Chief Executive appointing to office one who might by his voluntary act succeed to the executive office the next day after the appointment was made.
The confusion arises out of the fact that the office, and the-duties which pertain to it, are spoken of as entirely distinct, whereas they are inseparably connected.
It is only where there is an existing office, without an incumbent lawfully authorized to discharge its duties, that the-office is, in the eye of the law, vacant. The very idea and definition of the word “office” implies the right to exercise a public function or employment. The inevitable, logical-conclusion, therefore, is, that whenever there is an existing office, the duties of which the law devolves upon a person or officer named, upon the happening of any given event, the-person or officer so designated becomes, upon the happening of the event named, the incumbent of the office. This is so-not because the person becomes eo nomine the officer, but because, while lawfully in the discharge of its duties, he fills-the office. There was, therefore, assuming the facts stated in the information to be true, two insuperable obstacles to the appointment by the Governor of a Lieutenant-Governor, when General Manson vacated the office. One was, the office was not vacant, because the relator had been elected, and was then President pro tempore of the Senate. The other was, that the Constitution made provision for supplying the office, if it was not already supplied, by an election by the Senate.
In Clark v. Irwin, 5 Nev. 111, 128, the court says: “ Two things must then concur: There must be a vacancy, and no provision made by the Constitution, or no existent law for filling the same, before the Governor can exercise the appointing power.”
*109Neither of the foregoing conditions was present. As was, in effect, said in the case last above cited, if there was a vacancy, then the very Constitution which created the office filled the same, and there was no such condition of things as authorized an appointment. An executive system in which the Chief Executive .could, in any event, appoint his own successor apparent, thereby vesting such appointee with power to become President of the Senate, has, in my opinion, found no precedent in our form of government, either State or National.
The argument is, that a vacancy in the office of Lieutenant-Governor having occurred, such vacancy was to be filled first by appointment by the Governor, and then by the electoral body in November, 1886, under the provision of section 4678, R. S. 1881. This section provides that a general election shall be held in the month of November biennially, at which all existing vacancies in office shall be filled unless otherwise provided by law. It is said there is nothing in the Constitution which forbade the people to fill the vacancy in the office of Lieutenant-Governor.
To this there are three sufficient answers:
1. There was no vacancy.
2. If there was, the Constitution provided a mode of filling it other than by the electoral body, viz., by the election of a President pro tempore of the Senate.
3. The Constitution by the clearest implication forbids an election for Governor or Lieutenant-Governor, except for the term of four years, which term can in no case commence at any other than the times specified in that instrument.
It is argued that the election, if lawfully holden, could only confer title for the unexpired executive term. This construction reduces the office of Lieutenant-Governor, the term of which is fixed in the Constitution at four years, to the level of offices created by legislative enactment, and subjects the office by judicial interpolation, rather than by construction, to the operation of section 5567, R. S. 1881, which provides *110that “ Every person elected to fill any office in which a vacancy has occurred shall hold such office for the unexpired term thereof.” It has, however, been repeatedly held by this court, that this statute has no application to an office created by, and the term of which is fixed in, the Constitution. Governor v. Nelson, 6 Ind. 496; Baker v. Kirk, 33 Ind. 517; State, ex rel., v. Long, 91 Ind. 351.
It must, therefore, be regarded as the settled law of this State, that when a person is elected to an office created by, and the term of which is fixed in, the Constitution, such election confers an indefeasible title for the full constitutional term.
The emphatic language of the Constitution is: “There shall be a Lieutenant-Governor, who Shall hold his office during four years.” The construction contended for would in effect require the court to add: “ Except in case of an election to fill a vacancy, when he-shall hold only during the unexpired term of such office.” To do this, is equally beyond the power of the court and the Legislature. People v. Burbank, 12 Cal. 378. If it is competent by construction thus-to add to the Constitution, the enactment of section 5567 was wholly unnecessary, as the provisions of that section could as readily have been interpolated into the statute by construction as into the Constitution. That the Constitution makes no provision for elections to fill vacancies in the office of Governor or Lieutenant-Governor,, or for the limitation of the terms of persons elected to fill vacancies in those offices, is conclusive that no such vacancies were contemplated.
Among other objections to the construction thus given the Constitution, and which has, again and again, been given it in the administration of the executive department of the government, it has been contended that there would result an irreconcilable conflict between sections 8 and 10 of article 5. The first provides that no person holding any office under the government of the United States, or of this State, shall fill the office of Governor or Lieutenant-Governor. The see*111ond provides that in case of the death or disability of both Governor and Lieutenant-Governor, the General Assembly shall declare what officer shall then act as Governor until the disability be removed. It is said that to declare that another officer of the State shall act as Governor in such a contingency, is a violation of section 8. The framers of the Constitution can not be involved in such contradiction. The scheme of the Constitution does not contemplate that either the Lieutenant-Governor or the President of the Senate shall, in any event discharge the functions of two incompatible of* fices. When the Lieutenant-Governor acts as Governor, or fills the executive office, he does so in the character of Lieutenant-Governor, and ceases for the occasion to be President of the Senate. When the President pro tempore of the Senate acts as President, he does so in the character and office of Senator, and does not become in name Lieutenant-Governor. The office of President of the Senate is for the time being appendant to that of Senator. When, however1, the contingency arises that the President of the Senate is to act as Governor, he does so in his natural, and not in his official, capacity as Senator. He ceases for the occasion to be Senator. This is according to the principle declared in Chadwick v. Earhart, supra. It is there said : “ If an office be append-ant, as the expression is in 1 Leon. 321, to another office, the detex'mination of the first office will determine the second. * * * On the contrary, if the nomination or appointment to an office be by deseriptio personarum of one who holds some office by the title of which he is described, and who on some contingency is to enter and fill another office, the answering the description at the time the contingency arises designates him as the person who is to enter and fill the office, and when, as thus designated, he enters into the office, he holds it in his natural, and not in his official capacity.”
The application of this principle results in dissipating all of the supposed incongruities in the constitutional provisions,, to which reference has been made.
*112The same reasoning by which it is sought to prove that the •office of Lieutenant-Governor becomes vacant upon the death or resignation of that officer, would, if valid, prove that under like circumstances the office of Governor also becomes vacant, It would also prove that when the Lieutenant-Governor, by reason of the death or resignation of the Governor, acts as -Chief Executive, the office of Lieutenant-Governor becomes vacant.' Yet it is conceded that in such a case the latter office •does not become vacant, and that the Lieutenant-Governor, while filling the office of Governor, does so as, or in the character of, Lieutenant-Governor.
"Will it be pretended that while acting as Governor in such .a case, the Lieutenant-Governor actually fills two offices, that of Chief Executive and President of the Senate ? or does he fill the one in fact and the other in name, by his title?
In 1861, after the Governor-elect resigned, and the distinguished citizen who as Lieutenant-Governor supplied the executive chair, assumed the duties of the Executive, he as .actually and effectually vacated the discharge of any official ■duty in any other office than that of Governor, as though he had died on the day he assumed the executive function.
It was absolutely certain that from thenceforth, during the remainder of the executive term, he would be disqualified, and unable to preside over the Senate. Did the office of Lieutenant-Governor thereby become vacant ? Should there have been an election for Lieutenant-Governor holden in 1862, while Governor Morton was actually filling the executive ■chair in the character of Lieutenant-Governor, so as to have ■supplied the State with two Lieutenant-Governors, or was the office of Governor, while it was thus so adequately and •actually filled, vacant, so that there should have been an election to supply that .office ? Perhaps it is well that the •question which now perplexes the affairs of State, was then not so much as even suggested, to add confusion to the crisis which was then upon the people.
Consider the situation in which the affairs of the State are *113■involved at this moment. The General Assembly, which it is asserted is the only body capable, and authorized to decide the pending controversy, consists of two wholly independent bodies. The Senate has decided for itself, that the right and title to the office in dispute was conferred by its election on the relator; while the House has given its judgment, that the ■election, the result of which was declared by its Speaker, conferred the title on the respondent. Each separate branch of the General Assembly has given its judgment on the case. ‘The result of the judgment of the General Assembly is, to present to the people of the State two persons contending for •one office, each supported by the judgment of one separate branch of the legislative department of the State. In this ■extremity the court is appealed to by one of the parties and •asked to expound the Constitution and declare the law in ■respect to his claim of title to the office in dispute. Shall it ■now be said, that the best and only judgment which, under •the Constitution, the law can give in the premises, is that ■which has been declared by the General Assembly? Is the ■extremity such that the confusion which now distracts the ■public service must continue until one or the other of the •claimants tires of the contest, or abandons his claim, or may the court, in this as in any other case of disputed right, declare the law?
On behalf of the appellant, it was contended that the issuance of an injunction, in a case like this, was in excess of the jurisdiction of the court. After a careful consideration of the subject, I am constrained to concur in this view.
Without elaborating, my conclusion is, that all that a court can properly entertain in a case involving the title to an office, such as that in controversy, is some appropriate proceeding to determine the right in dispute. Its jurisdiction is limited to giving judgment on the naked legal right. So long as the title remains unsettled, it is not the province of the *court to interfere by the extraordinary remedy of injunction *114for the protection of one, or the restraint of the other, litigant. This principle is peculiarly applicable to the ease before us, which involves a right to exercise an office which can, only be exercised under the supervision and protection of a co-ordinate branch of the government. While the legislative department has no power to pass judicially upon the title-involved, each House when separately assembled, or the-joint assembly of both, has the power and the right to maintain its own dignity, and the good order and decorum of its proceedings. For this purpose, when the right to preside is in dispute, each may, and must, determine provisionally, until the right .is judicially settled, who shall preside over its deliberations. Hence, while the courts are under the solemn duty, when their jurisdiction is properly invoked, of determining the title, they may not, in a contest of such gravity, interpose their authority in a matter which concerns the propriety of the conduct and proceedings of the Senate, or joint assembly of the two Houses.
So far as the relator has invoked the jurisdiction of the court by an information, the proceeding is appropriate, to the end that the title to the office in dispute may be judicially determined. Cochran v. McCleary, 22 Iowa, 75.
The feature of the case which invokes the restraining power of the court can not, in my opinion, be entertained. Beal v. Ray, 17 Ind. 554; Smith v. Myers, supra.
For these reasons, while I think the court had jurisdiction-of the subject-matter, the restraining order should nevertheless be dissolved, and the further order of the court should be that unless the respondent waives the question of jurisdiction over his person, the pending case should be dismissed.
Howk, J.My judgment yields a ready and earnest assent-to each and all of the conclusions of Mitchell, J., upon each and all of the momentous questions discussed by him, in this important cause. I can not say aught which would *115give additional force to his able and exhaustive arguments upon each of these questions. Therefore, I content myself with earnestly concurring in his opinion.
Filed Feb. 23, 1887.
Individual Opinion.