Plaintiff and defendant were candidates for the office of Third Justice of the Peace of the parisTh of Orleans, at the election held on the 2d November, 1857.
It is admitted, defendant has received the majority of the votes cast, but the right of defendant to the office is denied on four grounds which have been argued in the brief of the counsel of plaintiff with great ability and learning.
The arguments of plaintiff will be considered briefly in their order, as we have not the time to extend our remarks as much as the importance of his propositions merits.
1. “ The election was held in accordance with the provisions of the Act of 19th March, 1857, entitled “ An Act relative to elections in the parish of Orleans,” and this statute is unconstitutional and void.”
It is unnecessary to decide the constitutionality or unconstitutionality of this law; for, if it were admitted to be unconstitutional, this would not render the election null, inasmuch as it is a police law for the maintenance of order on election days. The principal object of an election is the casting of votes, and the unconstitutionality of the police provisions of an election law cannot render the votes illegal and thus disfranchise the electors; the citizens have the prerogative *302of voting, and the Legislature cannot, by encompassing with unconstitutional police provisions an election law, make the votes of electors null and void. The Act of 19th March provided for the police of elections, and its provisions were enforced at said election; but if the election were hold under the law of 1855, üs alleged by defendant, and the directory portions of this law were not followed, this would not make the election null. Electors do not vote to carry out the rales created by the Legislature for the administration of voters ; on the contrary, they are made for the benefit of the electors; there is an essential difference between the act of voting, and the police or directory provisions of the law intended to protect the deposit of the suffrages of the people. If the votes of the citizens are deposited, the intent and design of an election are accomplished. It would be unwise to make an election depend on some unconstitutional provision of the police part of an election law, or on the failure to comply with its directory provisions, for then almost every election would be contested; the people would be virtually deprived of their elective power, and the tenure of offices would depend on the will of juries and courts. The public good demands that the will of the people, as determined at the ballot box, should not lightly be disturbed. If the voters think proper to go forward and vote under a defective law, those who were candidates ought to be the last to complain, when the result has been affected by neither the unconstitutionality of the law, fraud, error, nor collusion.
2. “The election of 2d November, 1857, was absolutely null, so far as relates to Justices of the Peace, because held in violation of Art. 82 of the Constitution of the State.”
This Article declares that “ it shall be the duty of the Legislature, to fix the time for holding elections for all Judges, at a time which shall be different from that fixed for all other elections.”
The election for the office of Justice of the Peace was held on a day when several other offices were to be filled, and the question arises, is a. Justice of the Peace a Judge within the meaning of this Article? We admit that a Justice of the Peace has certain judicial powers, but there is a broad line of demarcation between Justices of the Peace and Judges. We are of opinion that an examination of the Constitution shows, that Justices of the Peace are not included in the word “ Judges ” in the 82d Article of the Constitution. The Constitution makes a difference between Judges and Justices of the Peace.
3. “ That on the 2d November, 1857, there was no warrant of law for any election of Justice of the Peace for the parish of Orleans.”
The Constitution ordains that Justices of the Peace shall be elected every two years, and the Act of 1855, (Session Acts, p. 497,) has been interpreted by the official authorities as authorizing an election for Justices of the Peace on the 2d of November, 1857. We admit that this law is not very lucid ; but we are of opinion that plaintiff is estopped from objecting to the sufficiency of this statute to authorize the holding of an election for the office of Justice of the Peace. He argues, that the election could not be legally held, and yet in his petition he prays that he may be decreed to be entitled to said office under said election. He was a candidate for the office, and he thus recognised the validity of the law under which the election was held. If he did not believe that the election could be validly held, he ought to have abstained from being a candidate or from praying that he may be declared to be elected, and this estoppel applies to all his objections.
4. “ That plaintiff's term of office has not expired.”
*303Art. 78 of the Constitution declares that Justices of the Peace shall be elected for the term of two years. Plaintiff was commissioned by the Governor on the 24th July, 1856. He was commissioned vice Richard Richardson, deceased. He was, therefore, commissioned for the unexpired term of Richardson. It is clear, as observed by the Judge a quo, that as that term has expired, he cannot hold the office by virtue of that commission for any longer period of time than Richardson could.
The judgment of the lower court was in favor of defendant; we can see no error therein.
Vide: Augustin v. Eggleston, 12 A., 366; People v. Cook, 14 Bar., N. Y. R., p. 259. Marbury v. Madison, 1 Cranch’s R., 137.
It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs.