People ex rel. Leverson v. Thompson

McKinstry, J. The petitioners are not entitled to a mandate directing the secretary of State to certify to the governor that two of them were duly elected Congressmen-at-Iarge, and that each of the others was elected a member of the House of Representatives, in a congressional district created by the Act of the legislature of 1872.

If it should be conceded that the Act of 1883 is invalid, because of nbn-compliance by the legislature with certain formalities required by the Constitution, yet, as appears from the petition and facts of which we take judicial notice, the electors throughout the State did not vote for two members of Congress at large, nor did the electors within the limits of each of the congressional districts, as prescribed by the Act of 1872, vote for a member of Congress to represent the people of such district.

Notice to the electors lies at' the foundation of any popular system of government. It has sometimes. been held that the existence of a law fixing the time of an election, and the offices to be filled, is of itself notice. It may be conceded that when a term of office is to expire at a certain date after a general election (no other election to intervene), the electors take notice the office is to be filled at such general election. Some decisions have gone so far. But it is well settled that when .a vacancy has occurred by reason of death or resignation, the voters are not bound to take notice of such vacancy, and the casting of votes for a candidate or candidates to fill the vacancy does not constitute an election. The facts of the present case bring it within the principle of the decisions which hold that, in cases of special elections to fill a vacancy, a proclamation is necessary, even although the special election be held at the same time as a general election. The principle is that a notice by proclamation, is necessary whenever the voters are not bound by law to take notice of the time of - the election and of the officers then to be chosen.

The contrary not being averred in the petition it- must be presumed that the governor, who had approved the Act of 1883, issued his proclamation for the election of a member of Congress in each of the districts defined by that act.

[629]The general rule is that all are bound to know the law. But the recognition of this general rule does not compel us to hold, that the electors, as matter of fact, knew that the Act of 1883 was of no force or effect. It does not compel us to hold that, as matter of law, the electors throughout the State were bound to know (under penalty of disfranchisement) that a statute regular in form, certified to have been properly passed by the appropriate officers, published as other statutes are published, approved by the governor and by him acted under when he issued his proclamation, was void, because of matters not appearing on the face of the statute, but which could be ascertained only by an examination of the journals of the two houses of the legislature; that, thus taking notice of the invalidity of the Act of 1883, the electors were bound to know that the law of 1872 was still in full force and operation.