(dissenting). I cannot concur with my brethren in the conclusion reached by them in these-cases. I do not think that there was an election for the office of circuit judge in Kent county at the last November election, within the spirit and meaning of our Constitution and laws.
It is undoubtedly the law that where the election is a general one, and the officers are to be elected for the full and re'gular term, the failure to give notice will not avoid the election. This is the well-recognized rule of *439nearly all the authorities. But when vacancies are to be filled, and no notice of the election has been given, the authorities are divided, and, as a rule, each case seems to have been decided upon its own peculiar facts. It may be safe to say that the leading idea in these cases is that where it is evident there has been a fair expression of the popular will, and a general understanding that there was a vacancy, and that an election was to be held to fill it, the elections have been held valid, otherwise void. In the case at bar, there could have been no general understanding that there was a vacancy to be filled. No such understanding can, in my judgment, exist where the statute law upon its face expressly says there is no vacancy, and where a suit is pending in a court of last resort to test a question. Under these circumstances it cannot be so plain a question that courts have the right to say that there was such a general understanding of a vacancy to be filled as to dispense with notice by the proper authorities.
The case mainly relied upon in this State to sustain relator’s position is the case of People v. Hartwell, 12 Mich. 508, but the facts in that case are so widely different from the one at bar as in my judgment to render it no authority here, and to render the principles there laid down entirely inapplicable to this case. In that case there was a vacancy in the office of city attorney, who' was elected, and under the law was to hold his office for two years. The charter expressly provided, in case of vacancy in that office, that the common council were authorized to appoint and fill the vacancy until the next annual election. The incumbent had removed from the city, and the common council, by resolution, declared a vacancy in the office, and that resolution was published in the official paper of the city. By the same resolution declaring a vacancy, the respondent was appointed to fill *440it until a general election. There was, therefore, in that case, an actual vacancy, not only by the express terms of the charter itself, but by the solemn declaration of the council, the governing body of the city, which declaration was published in its proceedings. That was a general election, and the Court say:
“ Electors are supposed’ to know what officers are to be elected at a general election, and if in doubt can readily inform themselves.”
Of course any voter could in that case very readily have determined for himself the question, and would have found that there was a vacancy, and that the statute law expressly provided that it should be filled at the then coming election. If a voter, in the case at bar, had attempted to ascertain whether or not there was a vacancy, what would he have found to enlighten him and to guide him in his investigation to a coir elusion? He would have found a law providing for an additional circuit judge for the seventeenth judicial circuit, expressly declaring a vacancy in the office, and authorizing the Governor to fill it by appointment until the general election of 1893, which was the time for the next general election for circuit judges after the law was enacted. Examining further, he would have found that this law was unanimously passed by both the Senate and House of Representatives; that it was approved by the Governor; that the Governor had filled the vacancy by appointment; that on October 7, 1890, the law department of the State had commenced proceedings in this Court to test the validity of the entire act, claiming that it was not constitutionally passed; that the Secretary of State had previously declined to find that there was a vacancy, and to issue a notice of election to fill it; that on the same day the relator had filed his petition in this Court to compel the Secretary of State to issue a notice of election; *441that on October 14 this Court announced that it would not then decide the question, that there was not sufficient time for notice to be then given according to law, and that further time for consideration would be taken as to the constitutionality of the law. He would further have found that there had been no judicial or ojfficial intimation whatever that a vacancy existed. Tinder those circumstances, can it be said that there was a general knowledge that there was a vacancy, and that an election could legally be held?
I do not think the people are called upon to determine constitutional questions of this character. The presumption is always, in favor of the constitutionality of a law, and that presumption exists until tl}e courts have declared it otherwise. No one would seriously contend that the Secretary of State should assume the function of declaring such a law unconstitutional, and. act accordingly. lie did what was clearly his duty to do in acting upon the assumption of its constitutionality, and leaving other parties to take the proper steps to test it.
Three out of the four political parties in the field made no nomination for that office, evidently assuming that the law was constitutional, and that there was no vacancy. One party nominated relator, who received a very large number of votes. Had there been knowledge of a vacancy and notice of an election, or had there been official notice of the election, the other political parties would undoubtedly have made nominations for the office. Had they done so, it is entirely .problematical whether relator would have received a plurality of the votes cast. I do not think it is the province of this Court to say that such would have been the result, and the relator would have been elected in any event. Had there been any other candidate in the field for whom votes were cast, the conclusion of my brethren in this respect might *442be natural; but when three out of four political parties have chosen -to recognize an express provision of law as valid and constitutional, and have refrained from acting until the Court, the proper tribunal, have decided the question, I cannot hold the election to be valid, where, in the absence of all official notice, but one man has been voted for, and but one man was in the field. Upon what principle can we assume that he would have been elected if the othe'r political parties had nominated one or more candidates? It is true that the relator’s political party had a very large plurality, but can we say it was so large that the electors would in any event have elected him to the office of circuit judge, if the other parties had united upon one candidate, or had each nominated a separate one? We might speculate upon the result, but speculation is not the province of this Court. Unless we can say with certainty that the result would not have been different, we have no right, in my judgment, to sustain the election upon the ground that the will of the people has been expressed. Relator did not receive one-half of the votes cast. We cannot tell whether in case of opposition he woulcl have received all his present vote, nor whether he would have been opposed by one or more candidates. No one can say more than that it is probable he would have been elected; but is that enough to sustain an election otherwise void? Such an election cannot be called an expression of the popular will, and is not in accord with the spirit and genius of republican government.
The questions of the constitutionality of the act were grave and important. Members of the legal profession differed upon them, and no one could have foreseen what the decision of this Court would be. I do not think an election under those circumstances can be sustained as valid. Under such conditions, an election can only be *443sustained when there has been a general belief and acquiescence on the part of the people that it was unconstitutional, that a vacancy existed, and that an election was to be held to fill it, and where there has been a general participation in the election.- -I do not think a single authority can be found sustaining an qlectidn as valid under the facts of this case, or any similar to them, nor do I think that the principles laid' down by any of the authorities will sustain it.
This case is, in my judgment, clearly within 'the reasoning of this Court in Secord v. Foutch, 44 Mich. 91, where it is said:
“It is a necessary safeguard to popular elections that the people be informed what officers they are to vote for. They may be expected to know what elections are to be made at the regular general elections, and as to those in ordinary cases it might be dangerous to allow a failure to give notice to avoid the election. * * * But there can be no such knowledge assumed .concerning vacancies in office, and, without some distinct and public notice of some sort, such an election could hardly fail to be capable of the worst kind of fraud and trickery.”
It is not enough that one man dr one party assume to give notice that they will vote for a man for an office. This is no evidence of a vacancy, and in this case had no bearing whatever upon the question of vacancy. If there was a general knowledge that there was a vacancy, and that there would be an election to fill it, it is of no legal consequence whether a minority or majority party nominate a candidate, nor whether he receives few or many votes. When it is understood and known that an office is to be filled by election at the election to be held, it is of no consequence whatever whether there be one or many candidates, or whether there be few or many votes cast. The electors have then had ample opportunity to exercise their rights, and are. foreclosed by the result.
*444The relator cites People v. Cowles, 13 N. Y. 350. The force of that as an authority is weakened by the fact that the conclusion was reached by a divided court of five to three, but the rule there adopted by a majority of the court can safely be adopted in this case, without in the least affecting the question. One of the justices of the supreme court died October 23, previous to the general election of the judges on the ensuing 6th of November. No notice was given of the election. The time within which the Secretary of State should have given notice had elapsed before October 23. The party conventions had been held and nominations made. After the death of the justice, the conventions reassembled, and each nominated a man to fill the vacancy. Fifty thousand votes were cast. No question was raised as to the fairness of the election, which was generally participated in by the people. The sole point in issue was whether the election was invalid for the reason that no official notice had been given, and a vacancy had occurred after the time had expired within which notice could have been given. I call attention to the reasoning of the dissenting opinion, and quote with approval the following:
“Notice to the electors lies at the foundation of any popular elective system. The elector cannot act through the ballot without notice that a vacancy exists to be filled. Necessity and sound policy demand that every elector shall have both the knowledge- and the opportunity to enable him to exercise the elective right deliberately and intelligently. In our elective system the duty of giving notice is devolved upon the secretary of state. The legislature have wisely provided that the notice shall be given by this officer within a time, and in a way, calculated to give the fullest notice to the electors. It may be that, under this .statute regulation, the omission to give the required notice of an election of a judge for a regular term would or ought not to vitiate the election. The elector should be presumed to know the law, and consequently at what period the regular *445term of' the public officers to be voted for will expire, and be prepared to act accordingly; but there can be no such presumption when the election is to fill a vacancy. I believe that no case can be found holding that notice to the electors of the existence of a vacancy, and calling on them to fill it, is not essential to give validity to the meeting of the electoral body to discharge the special duty. Certainly it could rest on no principle or sound rule of governmental policy. In the nature of things, notice to the elector that a vacancy exists, and calling on him to fill it, is an essential characteristic of a popular election; and public policy and safety require that it should be given in such form as to reach every elector who has the duty to discharge. Notice, therefore, being an essential element of an election to fill a vacancy, whether we regard the election at which the relator claims to have received a plurality of votes held in pursuance of the constitution or the law, it was equally invalid.”
In the absence of the statutory notice required to be given, it must be conceded that something must exist as its equivalent. That something in this case must be—
1. The public assertion of -the relator and his friends; and—
2. The action of the convention of his party in placing him in nomination, and the publication thereof in the newspapers of the circuit.
I can find no authority to sustain the position that the existence of either one-or both of these constitutes such knowledge of a vacancy and notice of an election as must compel electors to take notice of them, and especially where the fact of a vacancy depends upon a construction of the Constitution. They are unofficial acts, binding upon no one. Under the theory of the relator, the convention of one political party .can compel the people at large to adopt at their peril the construction of the Constitution and laws governing elections which the members of that convention see fit to place upon them. The people have a right to rest and act upon the constitu*446tionality of such laws until the courts have declared them void. Any rule that will disfranchise those who have so acted is, in my judgment, unsound in policy, unsupported by authority, and not the law. When the people genererally have acted, upon and acquiesced in a belief in the unconstitutionality of the act by participating generally in the election, then, and then only, may the election be held valid. No such claim can be successfully maintained in this case, unless we are prepared to hold that the action of a convention of one party represents the people’ and is binding upon them. Does such an election satisfy the theory of popular elections where the members of three out of four political parties, and more than half of the electors, have refrained from making nominations, and from voting, in the honest and reasonable belief that no vacancy exists?
The most careful investigation j. have been able to make leads me to the following conclusions:
1. Where the statute law creates a new or additional office, and by its terms declares the office vacant, and provides for filling it by appointment until the next election at which officers for full terms are to be elected, and the office is so filled, and there is no official notice of a vacancy or of an election to fill it, there is no such knowledge of a vacancy among the people as will justify an election in the absence of a general participation in it by the people.
2. When a suit is pending in the proper court to test the validity of the act and the question of a vacancy, the people cannot be held to knowledge of a vacancy until after the decision of the court.
3. A nomination by only one political party of four, and the fact that the members of that party generally voted for the nominee, are not a general participation by the people in the election, nor a general acquiescence in *447the belief that there is a vacancy, notwithstanding the fact -that such political party had a plurality of the. votes cast.
4. Such an election cannot be held to have expressed that deliberate will and choice of the people necessary to sustain popular elections.
5. The relator was not, therefore, elected, No injustice or inconvenience can result from a denial of the writ. An election for this office can be held at the coming spring election, about two months hence, when the people can have a full and fair opportunity to nominate candidates, and elect a man of their choice.
The writ should be denied.