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5 Nev. 329; Page v. Hardin, 8 B. Mon. 648. This vacancy, by presumption of law, exists until some other person succeeds to the duties of the place. Canniff v. Mayor, etc., 4 E. D. Smith, 430; State v. Washburn, 17 Wis. 658; State v. Allen, 21 Ind. 516. Under the constitution of the state this vacancy cannot be filled during an "off" year by popular election; for it provides that the official term of both governor and lieutenant governor "shall commence on the second Monday of January, 1853, and on the same day every fourth year thereafter." Const. Ind. art. 5, (Rev. St. 1881. § 135.) See Story, Const. § 1482. Such, also, has been the precedent in this state; and the framers of the constitution seem to have considered the filling of such a vacancy as fully provided for without any such election. 2 Deb. Const. Conv. Ind. 1316-1319. An election can be held only when authorized by the constitution. 1 Nev. St. 75. Such being the case, the legislature, in pursuance of the evident intention of the constitution, provided that the president of the senate, appellee in this case, shall act until the vacancy be filled. This is a proper case for injunction, as the danger is imminent and otherwise irremediable; for, if the general assembly should act and deprive appellant of his office, which is his property, their action, although in violation of the constitution', could not be reviewed by the courts. See Luther v. Borden, 7 How. 1. The preventive jurisdiction of courts of equity extends to acts of officers when they undertake to violate the law, especially where, as in this case, the act sought to be enjoined is purely ministerial, and would result in destroying both public and private rights. Bradley v. Commissioners, etc., 2 Humph. 428; Hartwell v. Armstrong, 19 Barb. 166. See, also, Attorney General v. Commissioners of Kingstown, 7 Ir. Eq. 383; Same v. Mayor of Waterford, 9 Ir. Eq. 522; Solicitor General v. Mayor of Dublin, L. R. 1 Ir. Ch. Div. 166; Telford v. Metropolitan Board of Works, L. R. 13 Eq: 574; 2 High, Inj. § 1259; Wammack v. Holloway, 2 Ala. 31; Shelby v. Alcorn, 36 Miss. 273. Courts of equity can and will, in such cases, grant an injunction without trying the title to the office. Facey v. Fuller, 13 Mich. 527; Hughes v. Parker, 20 N. H. 58; Palmer v. Foley, 4 Jones & S. 15; Tyack v. Bromley, 4 Edw. Ch. 267; Will. Eq. Jur. 408. On applications for mandate, and other cases where no direct contest of election was made, this court has decided questions more nearly touching title to office than this. Gulick v. New, 14 Ind. 93; Howard v. Shoemaker, 35 Ind. 111; Wood v. Selby, 24 Ind. 183; Glascock v. Lyons, 20 Ind. 1; Collins v. State, 8 Ind. 344. Mandate and injunction are correlative remedies. Board of Liquidation v. McComb, 92 U. S. 531.

L. T. Michener, Atty. Gen., S. J. Peelle, and W. H. H. Miller, for appellee. The appellee is commanded, by section 4729, Rev. St. 1881, to do that which he is here sought to be restrained from doing. The court has no jurisdiction of this action for the following reasons:

No injunction will lie where there is an adequate remedy at law. 2 Works, Pr. § 1436; 2 High, Inj. § 1312; Sims v. City of Frankfort, 79 Ind. 446; Marshall v. Gill, 77 Ind. 402, 405. Such a remedy is provided by our constitution and statutes. Article 5, § 6, of the constitution provides that contested elections for governor or lieutenant governor shall be determined by the general assembly, and the procedure is fixed by sections 4744-4746, Rev. St. 1881. The language is plain, and should be strictly construed. Wolcott v. Wigton, 7 Ind. 44, 48; Gibbons v. Ogden, 9 Wheat. 188; Railroad Co. v. Geiger, 34 Ind. 202. The jurisdiction being vested in the general assembly by the constitution, the courts can neither be given it by the legislature, nor assume it. Cooley, Const. Lim. 90, note 4; Stale v. Jarrett, 17 Md. 309; Opinion of Justices, 56 N. H. 570; Peck v. Weddell, 17 Ohio St. 283; Lawrence v. Knight, Brightley, Elec. Cas. 617; People v. Forquer, Breese, 119. The claimant must pursue the statutory remedy. 2 High, Inj. § 1312; Moulton v. Reid, 54 Ala. 320; Planters' Ass'n v. Hanes, 52 Miss. 469; Sheridan v. Colvin, 78 Ill. 237; Dickey v. Reed, Id. 261; Dalton v. State, 43 Ohio St. 652; S. C. 3 N. E. Rep. 685.

Courts of equity will not restrain the exercise of a political power, such as they are asked to restrain in this case. State v. Johnson, 4 Wall. 475, 497; People v. Morgan, 90 Ill. 562, 563; Georgia v. Stanton, 6 Wall. 50, 71; State v. Governor, 25 N. J. Law, 351. See Const. Ind. art. 3; Railroad Co. v. Geiger, 34 Ind. 196, 198; Wright v. Defrees, 8 Ind. 298; Waldo v. Wallace, 12 Ind. 569; Gregory v. State, 94 Ind. 384; Vandercook v. Williams, 8 N. E. Rep. 113. A court of equity will not try the title to an office. 2 High, Inj. § 1312. The appellant is not properly president of the senate. He could have been elected for the "occasion," and could only act in case of a vacancy in the office of both governor and lieutenant governor. See Const. art. 15, § 4, and art. 5, §§ 10, 11; also, Rev. St. Ind. 1881, § 5559. The policy of our law is to fill every vacancy by election by the people at the earliest opportunity. State v. Long, 91 Ind. 351, 356; Parmater v. State, 102 Ind. 90; S. C. 3 N. E. Rep. 382. This the people did in this case at the November election, when the appellee was rightfully elected to the office of lieutenant governor. See Railroad Co. v. Geiger, 34 Ind. 196; People v. Morgan, 90 Ill. 561. The case of the vice-president of the United States is not analogous to that of lieutenant governor of the state, because congress has power to legislate only where that power is given by the constitution, while all legislative power belongs to the general assembly, (Const. Ind. art. 4, § 1,) and, in pursuance of such power, they have provided for general biennial elections, such as that of November last, for the filling of all existing vacancies in office. Rev. St. Ind. 1881, §§ 95, 144, 4678.

ELLIOTT, C. J. Stripped of unnecessary verbiage, and exhibited in a condensed form, the material allegations of the complaint are these: That the appellant was qualified to hold the office of senator in the general assembly of the state; that he was elected to that office on the seventh day of November, 1884, for the term of four years, and still remains in office; that on the thirteenth day of April, 1885, he was chosen president of the senate of Indiana, accepted that position, and still holds it, ready, willing, and qualified to discharge its duties; that, on the seventh day of November, 1884, Mahlon D. Manson was elected to the office of lieutenant governor, for the term of four years, and that his term of office began on the second Monday in January, 1885; that Mahlon D. Manson vacated the office to which he was elected in July, 1886, by accepting the office of collector of internal revenue for the Seventh district of Indiana; that, by reason of the vacancy created by the acceptance of the federal office by Lieut. Gov. Manson, the appellant is, to quote literally from the complaint, "entitled to discharge the duties of said office, as required and provided by the constitution and laws of the state of Indiana, and to receive the pay and emoluments of the said office;" that, on the second day of November, 1886, a general election was held in the state of Indiana, and four persons procured themselves to be voted for by the electors of the state as canditates for the office of lieutenant governor; that, at the proper time, these votes were canvassed by the election officers, and, on the day following the canvass in all the counties of the state, the clerks of the respective counties did make out certificates, duly signed and sealed, and did forward them by mail to Indianapolis, addressed to the speaker of the house of representatives of the state of Indiana, in the care of William R. Myers, the appellee, as secretary of state; that the secretary of state, William R. Myers, received in due course of mail the sealed packages transmitted to him by the clerks of the several counties of the state, and that he now has custody of the sealed packages, and threatens to deliver them to the speaker of the house of representatives, and that he will so deliver them unless enjoined by the court; that the certificates and returns contained in the sealed packages of which the secretary of state has possession are wrongful and illegal; that, to again quote from the complaint, the said William R. Myers ought not to

be permitted "to deliver the same to the speaker of the house of representatives, thereby assisting to cast a cloud upon the right and title of the plaintiff to discharge the office of lieutenant governor." The prayer of the complaint is "that the said William R. Myers, secretary of the state of Indiana, as aforesaid, be perpetually enjoined from delivering the sealed packages in his possession to the speaker of the house of representatives."

The question which faces us at the threshold is one of controlling influence; and the answer to it must rule our decision. The question of jurisdiction is always one of importance; but in no case is it more important than where, as here, the extraordinary remedy of injunction is invoked to control the acts of officers holding high places in the government of the state. In cases like this, where the judicial department is asked to enjoin an officer of a different branch of the government from performing an official act, the question is always one of dominating force, and sometimes of perplexing difficulty. On the one hand, no consideration of policy or convenience should induce the courts to assume to exercise a power that does not belong to them, nor, on the other hand, should any consideration of that kind, or of any kind, induce them to surrender a power which it is their duty to exercise. The assumption of a power not vested in them would be a violation of the constitution, since it would be a usurpation of a power conferred upon another branch of the government. It would disturb the system of checks and balances which the constitution has so carefully constructed, and which the courts have ever guarded with most scrupulous care. The question is as important as any that the courts encounter in the whole range of judicial investigation; and it is always regarded as one of great delicacy, to be considered with care, and disposed of with caution. The question of jurisdiction is never in any case a technical or subordinate one, and certainly it is not so in the one before us.

It often becomes a question in cases of the general class, to which the present belongs, whether a suit for injunction can be maintained in any case where the title to a public office is involved; and by many courts it is held that in such cases there is no jurisdiction. Foster v. Moore, 32 n. 483; S. C. 4 Pac. Rep. 850; Gilroy's Appeal, 100 Pa. St. 5; Stone v. Wetmore, 42 Ga. 601; Kilpatrick v. Smith, 77 Va. 347; Jones v. Commissioners of Granville, 77 N. C. 280; Patterson v. Hubbs, 65 N. C. 119; Moulton v. Reid, 54 Ala. 320; Beebe v. Robinson, 64 Ala. 171; People v. Draper, 24 Barb. 265; Planters' Ass'n v. Hanes, 52 Miss. 469; Sheridan v. Colvin, 78 Ill. 237; People v. Forquer, Breese, 402; Hulseman v. Rems, 41 Pa. St. 396; Com. v. Baxter, 35 Pa. St. 263; State v. Governor, 25 N. J. Law, 331; Peck v. Weddell, 17 Ohio St. 271; Ingerson v. Berry, 14 Ohio St. 315; Markle v. Wright, 13 Ind. 548; Beal v. Ray, 17 Ind. 554. But the case before us is narrowed to a small compass by the provisions of our constitution and our statute; and it is unnecessary for us to enter into the broad field covered by the cases to which we have referred. We abstain, therefore, from any discussion of the general doctrine declared by those cases.

Nor do we deem it necessary to determine the relation of the remedy of mandamus to that of injunction; for it is not necessary to a decision of the ruling question, as it is here presented, nor is it necessary to determine whether the title to an office may be tried in an action for mandamus. All that we are required to decide, all that it is proper for us to decide, and all that we do decide, is that injunction will not lie in such a case as the one presented to us by the record.

The constitution of the state provides that "the returns of every election for governor and lieutenant governor shall be sealed up and transmitted to the seat of government, directed to the speaker of the house of representatives, who shall open and publish them in both houses of the general assembly." Article 5, § 4. The provisions of our statutes are: "Each clerk of the


circuit court shall, on the day following the return-day of an election for governor and lieutenant governor, make out at full length two certified statements, under the seal of his court, of the number of votes each candidate has received, one of which he shall transmit to the speaker of the house of representatives of the next general assembly, by his senator or representative, who shall deliver the same to the speaker on or before the second day of the session, and the other certified statement shall be transmitted by mail to Indianapolis, directed to said speaker, and to the care of the secretary of state, by whom the same shall be delivered to the speaker, on or before the second day of the session." Rev. St. § 4729. It appears from these constitutional and statutory provisions that the papers sent by the clerks of the counties of the state to Indianapolis, addressed to the speaker of the house of representatives, in the care of the secretary of the state, are in the hands of the secretary, as a mere custodian, charged with the duty of delivering them to the speaker of the house of representatives. Nothing that the secretary can do can give vitality to the papers if they have none by force of law; and nothing he can do can deprive them of validity if under the law they are valid. If the secretary may be enjoined from performing the imperative duty cast upon him by law, then, upon like reasoning, so may the clerks of the counties, and the members of the general assembly, to whom duplicates of such papers are intrusted for delivery to the officer to whom they are addressed, and to whom the law declares they shall be delivered. We doubt whether papers directed by law to be delivered to a designated officer can, in any case, be stopped by injunction in the hands of a mere custodian charged by law with the duty of delivering them; but, however this may be, we are clear that they cannot be stopped by injunction in the hands of the custodian in such a case as that which this record presents to us. If the courts should enjoin the secretary of state, no substantial result would be accomplished, because duplicates of the papers in his custody are in the hands of members of the general assembly, who are charged by law with the duty of delivering them to the speaker, to whom they are addressed; and the courts cannot enjoin legislators from performing a duty cast upon them by the law. Decrees of courts in injunction cases can only be enforced by punishing, by fine or imprisonment, those who disregard them; and it cannot be true that courts can fine or imprison legislators for doing what the law directs them to do. It is a general principle, well grounded in reason and firmly established by authority, that courts will not issue writs of injunction in cases where they would be unavailing; for the courts cannot inflict punishment upon officers for doing what the law commands them to do, and a writ would be unavailing here.

It is a principle of constitutional law, declared in our constitution, and enforced by many decisions of our own and other courts, that the departments of government are separate and distinct, and that the officers of one department shall not invade any other. To interfere by injunction in this case would involve a violation of this fundamental principle, as a conflict between two great departments of the government would result from an exercise of the jurisdiction invoked by the appellant.

The general assembly has power to compel the attendance of persons at its sessions, and to compel the production of papers which are necessary to enable it to justly and intelligently discharge its duties and exercise its functions. If the judiciary should enjoin the secretary of state from delivering to the speaker the papers described in the complaint, and the general assembly should demand their delivery to the officer to whom they are addressed, a conflict of authority would arise, which no tribunal could effectually determine. If the secretary should, in such a case, yield to the demand of the general assembly, he would be in contempt of the authority of the court, and liable to punishment. If, on the other hand, he should disobey the command of the general assembly, he would be in contempt of its authority, and subject to

punishment. If the general assembly should deem it the duty of the secretary of state to deliver the papers, it would not require the aid of the courts to compel the performance; for it possesses the power to coerce the production of papers and documents. Rev. St. § 4746. There is, we know, some conflict in the cases as to whether the legislature possesses the general inherent power to punish for contempt; but it is agreed, without substantial diversity of opinion, that it may make and enforce orders for the production of papers in matters in which it has power to act. Anderson v. Dunn, 6 Wheat. 204; Kilbourn v. Thompson, 103 U. S. 168; Mariner v. Dyer, 2 Greenl. 165; Yates v. Lansing, 9 Johns. 395; U. S. v. Hudson, 7 Cranch, 32; Tenney's Case, 23 N. H. 162; State v. Copp, 15 N. H. 212; Ex parte Dalton, 5 N. E. Rep. 136. It is apparent, therefore, that as, on the one hand, the general assembly would not require the aid of the courts, by mandamus or otherwise, to compel the production of papers addressed, by direction of the constitution and the statute, to the presiding officer of one of its branches, so, on the other hand, the courts cannot by injunction restrain it from obtaining these papers, nor, by indirection, produce that result by stopping them in the hands of one whom the law makes a mere custodian.

Many cases assert that courts cannot control by injunction, or by any other writ, the exercise of a purely legislative or executive power. Vicksburg R. Co. v. Lowry, 61 Miss. 162; S. C. 48 Amer. Rep. 76; Hawkins v. Governor, 1 Ark. 570; S. C. 33 Amer. Dec. 346; State v. Drew, 17 Fla. 67; Low v. Towns, 8 Ga. 360; People v. Bissell, 19 Ill. 229; People v. Yates, 40 Ill. 126; State v. Warmoth, 22 La. Ann. 1; In re Dennett, 32 Me. 508; Rice v. Governor, 19 Minn. 103, (Gil. 74;) State v. Governor, 39 Mo. 388; Mauran v. Smith, 8 R. I. 192; S. C. 5 Amer. Rep. 564; Turnpike Co. v. Brown, 8 Baxt. 490; S. C. 35 Amer. Rep. 713: Houston, etc., R. Co. v. Randolph, 24 Tex. 317; Chicago v. Evans, 24 Ill. 52; Smith v. McCarthy, 56 Pa. St. 359; Des Moines Gas Co. v. Des Moines, 44 Iowa, 505; S. C. 24 Amer. Rep. 756. The principle which underlies the decisions is well stated by our own court in Wright v. Defrees, 8 Ind. 298, where it was said: "The powers of the three departments are not merely equal,-they are exclusive in respect to the duties assigned to each. They are absolutely independent of each other." In other cases this principle has been asserted and enforced. Little v. State, 90 Ind. 338, and cases cited; Gregory v. State, 94 Ind. 384; Butler v. State, 97 Ind. 373.

To stay papers, addressed to the presiding officer of one of the branches of the legislature, in the hands of a mere custodian, would be an invasion of this doctrine, and one that might produce a serious conflict between the judicial and legislative departments of the government. In refusing to interfere by injunction, the court neither decides that the papers are of legal force, nor determines what disposition can be legally made of them; for it simply declines to interfere by injunction, because it has no jurisdiction to award such a writ.

The question is one of jurisdiction over the subject-matter; and jurisdiction of the subject-matter comes from the law alone. It is perfectly clear in reason and upon authority that no man can invest the courts with jurisdiction of the subject-matter. The law alone can do this. In giving judgment upon a case very like the present in principle, the supreme court of Minnesota said. "An executive officer cannot surrender the defenses which, not for his, but for the public good, the constitution has placed around his office. Still less can his consent authorize this court to transgress the constitutional limitation of its powers, and assume a jurisdiction which, by the fundamental law, it is forbidden to exercise." State v. Dike, 20 Minn. 363, (Gil. 314.) There are well-reasoned cases that go so far as to hold that the legislature itself cannot invest the judicial department of the government with authority to assume jurisdiction over the legislative or executive departments. Sterling v. Drake, 29 Ohio St. 457; State v. Nichols, 26 Ark. 74; State v. Sloss, 25 Mo. 291;

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