Dissenting Opinion
Myers, J.I cannot agree with the majority opinion in this case, which is to the effect that the Jackson Circuit Court had jurisdiction to restrain the Relator from performing duties imposed upon him by law as the Prosecuting Attorney of that Circuit. He came into that court with the commission of the Prosecuting Attorney. He had been elected to that office on November 6, 1962, had qualified, taken the oath of office and was commissioned in proper form by the State of Indiana. His name is on the rolls of Prosecuting Attorneys of the state. His predecessor yielded the office, papers and equipment to him as of January 1, 1963.
A certificate of election which had been issued for an elective office has been held to be prima facie evidence of election and the matters stated therein. State ex rel. Brown v. St. Joseph C. Ct. (1950), 229 Ind. 72, 95 N. E. 2d 632; McGuirk v. State ex rel. (1930), 201 Ind. 650, 169 N. E. 521; Hoy v. State (1907), 168 Ind. 506, 81 N. E. 509. The same may be said of a commission granted to one elected as Prosecuting Attorney. The defendant in a criminal proceeding pending in the *60Jackson Circuit Court where murder is charged attacked the relator’s right to hold office. This is a collateral attack wherein the court acted without jurisdiction when it sustained defendant’s motion to restrain relator from participating in the trial thereof. Relator .was prima facie entitled to his office when his term commenced January 1, 1963, and had the right to exercise the functions of the office until his commission may be set aside in appropriate proceedings such as quo warranto. See Hoy v. State, supra.
. The right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of the law and by proper proceedings. It was the sovereign right of the voters of Jackson County to select their Prosecuting Attorney.
“The responsibility for lack of capacity in officers must rest on the people who elected them.” State ex rel. v. Ellis (1916), 184 Ind. 307, 321, 112 N. E. 98.
In the absence of a showing to the contrary, it will be presumed that a person elected for office has the required qualifications. 42 Am. Jur., Public Officers, §37, p. 908.
The writ of prohibition should be made permanent.
Note. — Reported in 188 N. E. 2d 530.