I concur in the result reached by my Brother Morse in this case, but I do not agree with him in some of the reasons given by which he reached the conclusion that the relator is duly elected to the office of circuit judge of Kent county.
It is true that the authorities are uniform in holding that the neglect of the Secretary of State, or of the sheriff, or both, to give notice, would not invalidate an election of persons receiving the highest number of votes for any office for .which the regular term was by law to be filled at a general election. But where the time and place of the election are not fixed by the law, and the election is only to be called, and the time and place to be fixed, by some authority named in the statute, after the happening of some condition precedent, it is held that it is essential to the validity of such an election that it be called, and the time and place fixed, by the very agency designated by the statute, and none other. Stephens v. People, 89 Ill. 337. I should rest my conclusions upon this doctrine, and hold the relator not duly elected to the office of circuit judge, were there not certain facts patent in this particular case which should bring it out of that rule, and from which I am satisfied that the electors of Kent county have not in any manner been defrauded. The statute itself provides that the Governor may appoint to fill the vacancy until the spring election of 1893. This was passed by the Legislature and *433.approved by the Governor. Acting under the authority so conferred, the Governor made the appointment to the full end of the term, thus giving construction to the statute that it did so confer upon him the power to make the appointment for the full period of time. No one questioned this right, so far as appears by this record, until just before the fall election of 1890. The Secretary of State was called upon in September, 1890, to give notice of this election, and for the first time the question was agitated as to the power of the Governor to make the appointment for the full time. This was, however, settled by the Secretary of State, the head of one of the State departments, giving construction to the statute as it had before that time been construed by the Legislature and the Governor. The relator then came to this Court for mandamus to compel the Secretary of State to give the notice, the claim being made that the Governor had no power to appoint beyond the next gen-, eral election. We withheld our opinion upon the questions raised in that proceeding, for the reason that we were uncertain whether the act creating an additional judge in that circuit had properly passed both branches of the Legislature. Upon a full argument of that question, we have disposed of that part of the case in People v. Burch, ante, 408, at the present term of this Court.
The relator, having been nominated by his party in Kent county, and having done all in his power to procure the publication of notice by the proper authorities that an election would be held for circuit judge in that county, himself procured to be published the following notice:
“Election Notice.
“ To the Electors of the nth Judicial Circuit:
“Whereas, by Act No. 97, Public Acts of 1889, the *434office of additional judge for the 17th judicial circuit was created, and it was further provided that said office should be vacant from the time said act should take effect, which was May 17, 1889, and authorized the Governor to fill said vacancy by appointment for the unexpired term, ending December 31, 1893; and
“ Whereas, the Governor appointed Hon. Marsden O. Burch to fill the vacancy so created by said act, who now holds said office by virtue of said appointment; and
“Whereas, it is provided by the Constitution of the State of Michigan, section 14, article 6, that 'when a vacancy occurs in the office of judge, of the * * * circuit * * * court, it shall be filled by appointment of the Governor, which shall continue until a successor is elected and qualified; when elected, such successor shall hold his office for the residue of the unexpired term’; and
“Whereas, the Secretary of State, whose duty it is to give notice of such election, has been requested to give the same, and refused to do so:
“Now, therefore, the undersigned hereby give notice that a vacancy in the office of judge of the 17th judicial circuit exists, which should be supplied at the next general election to be held in the State of Michigan on the 4th day of November, 1890, and, notwithstanding, the refusal of the Secretary of State to give notice thereof, an election will be held on said 4th day of November, 1890, in said 17th judicial circuit, to supply said vacancy..
“Dated, Grand Rapids, Mich., October 28, 1890.
“L. E. Carroll,
“ Chairman Dem. County Committee.
“John J. Belknap, Secretary.”
These notices were posted in all the townships, wards, and voting precincts in said county some time prior to the day of election. They were signed by the chairman and secretary of the Democratic county committee, and. the proclamation was thus made that it was claimed that a vacancy existed in the office of circuit judge in that county, and the voters were called upon to vote for a candidate to fill the office. It appears also that the matter was canvassed by the county papers, and appar*435«ntly as great publicity was given to the fact as any notice which the Secretary of State, or the sheriff might have given; but the notice was not official, and the other political parties in that county, from the fact that they made no nominations for that office, presumably regarded the office as one already filled under the law, and that no vacancy existed to be filled at that election. The law •upon its face, and the action of the Governor in making the appointment of Judge Burch under it, undoubtedly led the other political parties to believe that no such vacancy existed, and, therefore, no nominations need be made for that place. The other political parties had full tickets in the field except for this office. They looked upon the face of the law, and interpreted it from its reading, and from the action of the Governor and Secretary of State, instead of a comparison with the Constitution.
It is said, however, that all parties must be presumed to know that the law was unconstitutional in so far as it .attempted to confer upon the Governor the power to appoint beyond the next general election; that an unconstitutional law is no law; and that, by the plain terms of the Constitution, the people were advised that a vacancy existed at the first general election after the appointment was made. There would be much force in this proposition if an attempt were made to uphold an act done or right claimed to have been acquired under the unconstitutional law, for the reason that every one who is competent to net for himself is presumed to know the law, and ignorance of the law is no excuse or justification. But the very ground upon which the notice becomes necessary to a valid election is that the law does not fix the time or place when the election is to be held, and the provision of the Constitution upon which the action is based does not so fix and determine it. If there were *436no other considerations in the ease, I should unhesitatingly hold that the election was absolutely void, as a fraud upon the electors of that county; that one party could not put a candidate in nomination for such an important office on the claim that a vacancy existed when no such vacancy appeared upon the face of the statute, and without any published notice from the public officers whose duty it is under the statute to give such notice, and, upon a few votes being cast in favor of that candidate, have him foisted upon the people as the one legally entitled to all the privileges and emoluments of the place.
But there are other considerations which must have weight in determining whether the people have been defrauded. These notices were not only posted by Mr. Adsit and discussed by the newspapers throughout the county, being notice of the claim made to the voters, but the Democratic ticket was printed under the authority of the Secretary of State, - containing the name of Allen C. Adsit as a candidate for the office of circuit judge of the seventeenth judicial circuit. These tickets were placed at every polling place in the county. At the close of the election these votes were counted by the inspectors of election, and returned to the board of county canvassers. From this tabulation it appears that the whole number of votes cast in that county for the office of Governor was 23,384, and for the general State officers, 23,435, thus showing the number of electors of all political parties appearing and voting at that election to have been at the utmost 23,435, as the tabulated statement of the votes cast for the various county officers shows about the same vote. From the tabulated statement it also appears that the relator had votes cast for him for that office about equal to any candidate running upon the Democratic ticket from Governor to county surveyor, who *437liad pluralities ranging from 344 to 2,397, and nearly every candidate on the Democratic ticket received pluralities of over 1,600. The relator received for the office of circuit judge 11,659 votes; the. Democratic candidate for Governor received 11,833; the Democratic candidates for the various State offices received from 11,519 to 11,781 votes each; and the Democratic candidates for the various county offices received from 11,002 to 11,935 votes. It is therefore fair to presume that, had the other three political parties made nominations for this office, the vote cast thereon would not have been to •exceed the highest vote cast by each of such parties for the other candidates, thus giving to the relator a plurality of all the votes cast for-that office of from 1,600 to '2,000. There were three other regular tickets in the field. The highest vote given for any Kepublican candidate on the State ticket in that county was 10,231. The average vote for all candidates, however, was about 10,100. The highest vote given for any candidate on the Prohibition State ticket was 1,694) the average being about 1,600. The highest vote given for any candidate on the Industrial State ticket was 86, that being about the average. The highest vote given for any candidate on the Democratic State ticket was 11,833, the average being .about 11,700.
It would not be contended by any one, however partisan, that had all the political parties made nominations for that office, and presented their tickets with the names of candidates for that office printed thereon, it would, under such circumstances, be the duty of the Court to declare the election void for the want of the statutory notice, as the only function of the statutory notice is to give publicity to the fact from official sources that an election is to be held, so that a fair election may be had, and that the will of the electors may not be *438defeated. Under the statutes of this State, those, and those only,' who receive the greatest number of votes cast for any office are entitled to such office. It is idle to-indulge in presumptions which the facts do not warrant; but, taking the facts here shown, the mind is led inevitably to the conclusion that, had the other political parties named candidates for that office, the result must have been that Mr. Adsit would have been elected by a plurality of over 1,000. It appears to me that the will of the electors of Kent county would be defeated under these circumstances to hold the election of the relator void. He had done all that could be done to have the-statutory notice given. Failing in this, he took steps to give such notice as was possible to all the electors of the county that such election would be held. This, as has been seen, would have been wholly ineffectual, did it not appear that the necessary vote was actually cast to give him the greatest number of votes had other candidates, been presented. It seems to me that any other ruling would be contrary to common sense, and an injustice not only to the relator, but to the people of Kent county,, and cast upon .the people there the burden of another election.
For these reasons I concur in the result.