KINDIG, J. (concurring)

At the general state election in 1930, the Honorable Edgar A. Morling, of Emmetsburg, was duly elected a justice of the Supreme Court of Iowa, for the term commencing January 1, 1931, and ending December 31, 1936. Mr. Justice Morling, after being thus elected, duly qualified for the office and assumed the duties thereof. He continued to thus assume such duties until his death, on October 15, 1932. The death of Justice Morling created a vacancy in the office.

Section 1146 of the 1931 Code provides:

"Every civil office shall be vacant upon the happening of either of the following events: * * * 4. The * * * death of the incumbent * * *."

Because of such vacancy in office, the Honorable Dan W. Turner, then Governor of Iowa, on October 19, 1932, appointed the defendant-appellee, the Honorable George Claussen, to fill such vacancy. A certificate was duly issued to the appellee Claussen, and thereupon he duly qualified for the office and assumed the duties thereof.

On October 17, 1932, in response to a notice from the Governor of Justice Morling's death, together with the suggestion that a vacancy in the office was thereby created, the Democratic State Central Committee, of Iowa, nominated the defendant-appellant, the Honorable Hubert Utterback, as a candidate to be elected a justice of the Supreme Court of Iowa at the ensuing general election, to wit, November 8, 1932, to fill the vacancy alleged to have been created and existing because of Justice Morling's death.

Thereafter, because of a like communication from the Governor, the Republican State Central Committee met and, it is claimed, over the protest and without the consent of the appellee Claussen, nominated him as a candidate for Justice of the Supreme Court, to be elected at such November election. The appellant Utterback's name was placed on the Democratic ballot, and the appellee Claussen's name was put on the Republican ballot.

As a result of the November election, the appellant Utterback received the greater number of votes for the office of Justice of the Supreme Court to fill the vacancy alleged to have been created by the death of the late Justice Morling. Therefore, the appellant Utterback, over the appellee Claussen's protest, was declared elected. Then, in accordance with the result of canvassing the votes, a certificate of election was issued to the appellant Utterback by the secretary of state, and thereafter he attempted to qualify for the office by taking the statutory oath.

Following the November election, both the appellant Utterback and the appellee Claussen claimed the office, but the appellant Utterback, over the protests of the appellee Claussen, commenced serving as a justice of this court.

So, on December 2, 1932, thereafter, the county attorney of Clinton county, Iowa, commenced the present proceedings in quo warranto for the purpose of testing the right of the appellee Claussen to hold the office of justice of this court. A notice was served upon the appellee Claussen, and he appeared in said proceeding. Later the appellee Claussen, on December 13, 1932, served a notice of said suit upon the appellant Utterback. Whereupon the appellant Utterback, a resident of Polk county, appeared in said cause and filed a motion for change of place of trial from Clinton to Polk county. On a hearing of the cause in Clinton county, the motion for change of venue was overruled, and the appellant Utterback filed an answer to the merits of the controversy. A trial was then had on the merits, which resulted in a judgment in favor of the appellee Claussen. By this judgment, the appellee Claussen was declared to be a justice of this court. Therefore the appellant Utterback appealed. No appeal was taken by the state.

For convenience, then, the appellant Utterback hereafter will be referred to as the "appellant," and the appellee Claussen will be called the "appellee".

On this appeal it is contended by the appellant: First, that Justice Morling having died twenty-four days before the general election, it was legal, under the Constitution and statutes of this state, to fill such vacancy at that election; second, that the defendant-appellee, by his conduct, waived his right to hold the office under his appointment from Governor Turner, and elected to be a candidate at the general election; third, that the appellee did not properly qualify under his appointment because he did not file his commission in the office of the secretary of state; and, fourth, that he was entitled to have the cause removed to the county of his residence, and therefore the district court erred in overruling the motion for a change of venue.

In answer to the foregoing contentions, it is claimed by the appellee: First, that under the Constitution and laws of this state, an election to fill the vacancy caused by Justice Morling's death could not be held because such vacancy occurred within thirty days of the election; second, that he did nothing that in the premises could be said in any way to be a waiver or estoppel of his right to claim and have the office under the appointment; third, that he properly qualified so far as the law requires, and that the statutory demand for the filing of the commission with the secretary of state is merely directory; and, fourth, that the district court properly denied the appellant's motion for a change of venue.

These contestants, as before indicated, have both served on this court. We are called upon to decide in this proceeding which of them is entitled to the office. The task is not free from embarrassment. A decision, however, does not rest upon our preference for either, or our idea of the superior fitness of the one over the other. Our duty is to determine which of these contestants, under the law, is entitled to the office. One of these contestants is a Democrat and the other is a Republican. If the law prefers one contestant on an occasion of this kind, the party affiliation of the other becomes entirely immaterial. At this time the Republican claimant may not legally say that he, because of his party affiliation, is more desirable than the Democratic contestant; nor can the Democrat legally declare that, because of his Democracy, he has a better right to the office than the Republican contestant. For as it was said in Holy Writ: "What then, are we better than they?" "No, in no wise." On another occasion, the following Biblical declaration was made: "All things come to all alike."

It is plain, then, that our further duty is to determine the law that applies to the case.

I. There is a controversy between the appellant and the appellee over the question of whether a vacancy existed in the office at the general election on November 8, 1932. If there were no vacancy within the contemplation of the law, then there could be no legal election. An election to fill a vacancy only can be held when there is a vacancy. In order to determine the existence or nonexistence of a vacancy at the time of the election, it is necessary to consider certain constitutional and statutory provisions. The appellee, beyond peradventure of doubt, was appointed by Governor Turner to fill the vacancy created by the death of Justice Morling. So, then, if a vacancy existed in that office at the time of the general election, it was because the office held by the appellee under the appointment expired by operation of law, thereby giving rise to a vacancy which could be filled at the election.

Section 1155 of the 1931 Code provides:

"An officer filling a vacancy in an office which is filled by election of the people shall continue to hold until the next regular election at which such vacancy can be filled, and until a successor is elected and qualified. * * *"

Section 1157 of the same Code continues:

"If a vacancy occurs in an elective office in a city, town, or township ten days, or a county office fifteen days, or any other office thirty days, prior to a general election, it shall be filled at such election, unless previously filled at a special election."

A dispute arises between the parties concerning the meaning of the foregoing sections of the statute when considered in conjunction with certain constitutional provisions and other statutory enactments. No claim is made by the appellant that section 1157 of the Code, above quoted, is unconstitutional. The appellant, however, says that his construction of the section should be adopted in order to make the statute conform to constitutional requirements. It is asserted by the appellee that the election in question could not be held, in view of section 1157, to fill the vacancy created by the death of Justice Morling, because that death occurred within thirty days of the general election. Therefore, the appellee argues that he may hold the office under the appointment from Governor Turner until the next general election after the election under consideration.

According to the appellant, section 1157 should be read (omitting unnecessary parts) as though it were enacted as follows:

"If a vacancy occurs in an elective office * * * thirty days prior to a general election, it shall be filled at such election, unless previously filled at a special election, and if such vacancy occurs less than thirty days prior to a general election, it may be filled at such election, if nomination be made in time to print the name of the nominee upon the official ballot."

There is no express statutory language sustaining the appellant's contention at this juncture. In order to arrive at this conclusion, the appellant theorizes on constitutional and other statutory enactments, as above explained. Obviously, too, the appellant, disregards the express language of section 1157 in his attempt to bring about the result for which he contends.

Section 1157 associates the ten-day period with city, town, or township offices. Again, it connects the fifteen-day period with county offices. Then all other offices, including state offices, are coupled with the thirty-day period. Any other construction of the section would destroy the apparent intention of the Legislature. While section 1157 is silent concerning the filling of vacancies which occur within the thirty days before the election, yet, under familiar rules of construction, it is apparent that by the language used the Legislature intended to prohibit the filling of vacancies occurring within the thirty-day period; that is to say, the Legislature provided that vacancies occurring before the commencement of the thirty-day period shall be filled at the next general election, and by implication it declared that vacancies occurring thereafter shall not be filled at such election. Otherwise section 1157 would become absurd. It would generally be conceded that, because of constitutional and statutory provisions, a vacancy occurring before the commencement of the thirty-day period preceding the general election could be filled at the next regular election. There would be no use for the limitations contained in section 1157 unless the legislature intended thereby to prohibit the filling of vacancies which occur within the thirty-day period. Hence, as before suggested, section 1157 would be entirely surplusage if it did not constitute a prohibition against filling the vacancy later than the period indicated therein. Therefore, we hold that section 1157 contains a prohibition against holding the elections to fill the vacancies later than during the period indicated.

A reason manifestly exists for the statutory classification contained in section 1157. In a city, town, or township election, the machinery of the election could be easily manipulated in a brief time, while a longer period would be required to manipulate the machinery of a county election. State elections naturally would require a still longer allotment of time to manage the machinery of such an election. To fit the necessity of the occasion, therefore, the statute provided for the different times in which the respective elections might be held to fill vacancies in the offices named.

But it is said by the appellant, as before indicated, that constitutional and other statutory provisions necessitate the construction claimed by him. After carefully studying these constitutional and statutory provisions, we are constrained to hold that the contention of the appellant is not well-founded. For the purpose of indicating the basis of our conclusion, however, we will continue a consideration of the appellant's contentions. Section 10, article IV, of the Constitution of Iowa provides:

"When any office shall, from any cause, become vacant, and no mode is provided by the Constitution and laws for filling such vacancy, the Governor shall have power to fill such vacancy, by granting a commission, which shall expire at the end of the next session of the General Assembly, or at the next election by the people."

Section 6, article XI, of the Constitution declares:

"In all cases of elections to fill vacancies in office occurring before the expiration of a full term, the person so elected shall hold for the residue of the unexpired term; and all persons appointed to fill vacancies in office, shall hold until the next general election, and until their successors are elected and qualified." (Italics are ours.)

Because of these constitutional provisions, it is argued by the appellant that the appointment of the appellee lasted only until the ensuing general election held November 8, 1932. Such an election, according to the appellant, is the "next general election" or "next election" named in the constitutional provisions. This is especially true, the appellant maintains, because there was sufficient time in which to hold an election to fill the vacancy. An election in fact was held, he declares, and an enormous number of votes cast thereat. So, he says, under the circumstances the constitutional provisions require that there was a vacancy in the case at bar, and that it should be filled at said general election. Such a construction of the Constitution would make section 1157 useless so far as the election before the thirty-day period is concerned. If, as argued by the appellant, the Constitution requires the election to fill the vacancy at the general election under consideration, then section 1157, so far as the election within the thirty-day period is concerned, would become unconstitutional. There is no provision in the Constitution for an election notice, or for other election machinery. The framers of the Constitution, as will hereinafter appear, left it to the Legislature to provide for such notice and such election machinery.

It is obvious that the framers of the Constitution were familiar with the method of holding elections in America. They understood the machinery necessary to hold an election to fill a vacancy, including notices, etc. When referring to the "next election" or the "next general election," the framers of the Constitution obviously intended to refer to the next general election at which a vacancy could be filled according to the established custom and usage in America. As a part of this custom and usage, a sufficient notice is essential: 20 Corpus Juris, 96, section 80; State of Iowa ex rel. Lewis v. Young, 4 Iowa 561; Secord v. Foutch, 44 Mich. 89, 6 N.W. 110; Odell v. Rihn et al., 19 Cal.App. 713, 127 P. 802; State ex rel. Sampson v. Superior Court for King County, 71 Wn. 484, 128 P. 1054, Ann. Cas. 1914C, 591; State ex inf. Brown v. Sengstacken et al., 61 Or. 455, 122 P. 292, Ann. Cas. 1914B, 230; State ex rel. Anderson v. Port of Tillamook et al., 62 Or. 332, 124 P. 637, Ann. Cas. 1914C, 483; State v. City of West Plains, 163 Mo. App. 166, 147 S.W. 163; State ex rel. Connaughton v. Staley et al., 90 Kan. 624, 135 P. 602; Guernsey et al. v. McHaley, County Judge, 52 Or. 555, 98 P. 158; Weisgerber v. Nez Perce County, 33 Idaho 670, 197 P. 562; People ex rel. Anderson v. Czarnecki, 312 Ill. 271, 143 N.E. 840.

Notice of a special election is required by the Iowa statutes, in accordance with the theory of elections generally. See sections 505, 506, 507, 508, and 509 of the 1931 Code.

"The evident intent of the statute in this respect is to give the voters reasonable opportunity to become advised of the time and place of the election, and of the purpose for which it is called; and to that end, and to prevent undue haste" a notice is given. Crawford v. School Twp. of Beaver, 182 Iowa, 1324 (local citation, 1329), 166 N.W. 702, 704.

No notice was given in the case at bar.

The framers of the Constitution, as before indicated, understood election machinery generally, and knew the purpose and desirability of a notice. Likewise, these framers of the Constitution understood the machinery necessary to be operated in holding elections to fill a vacancy. Time is required to make nominations, print ballots, prepare and give notice, make official communications, and meet other preliminaries for an election. It is not a question of how hurriedly or in what rush an election can be held, but rather the point to be determined is whether the thirty-day period provided in the statute must be declared unreasonable, when considered with the aforesaid constitutional provisions. Obviously, the framers of the Constitution contemplated a legal, valid, and regular election. They did not have in mind a slipshod, hit-and-miss election; that is to say, it is not contemplated by the Constitution that a chance shall be taken on occasions of this kind in holding an election without a notice, with the hope that perhaps, if certain events occur (for instance, that there will be cast a large and decisive vote), there will be a valid election, where otherwise there would be an invalid one. In the case contemplated, the subsequent event suggested, and not the original legal steps taken, would create the situation where an election might be declared valid. What the framers of the Constitution had in mind was an election that would be valid in the beginning as well as at the end. They contemplated an election which would be valid under all circumstances. Consequently, these framers were familiar with the fact that notice and time were essential to a valid and regular election. So, when enacting the constitutional provisions above quoted, they intended, by the use of the words "the next election" or "the next general election", to indicate the next election or the next general election that could be held on due notice with ample time for the manipulation of the election machinery, as contemplated by the laws relating to the filling of vacancies in offices generally.

The argument is made by the appellant that although notice was not given, yet the election in fact may be valid where no fraud is perpetrated. There was no fraud in the election under consideration. Hence the appellant concludes that the election was valid. Dishon v. Smith, County Judge, 10 Iowa 212; Moore v. City of Perry, 119 Iowa 423, 93 N.W. 510; Rafferty et al. v. Town of Clermont et al., 180 Iowa 1391, 164 N.W. 199; State of Iowa ex rel. Cook et al. v. Birdsall, 186 Iowa 129, 169 N.W. 453.

But, as before indicated, the framers of the Constitution did not contemplate an irregular election which might under some circumstances be held valid, as indicated in the cases last above cited. Their thought was that the vacancy should be filled at an election that would be valid in the first place, as well as after the happening of certain events. The question confronting us is not whether, if an election had been authorized because a vacancy existed, the election would have been valid although there may have been irregularities. Here the question is whether in fact there was a vacancy and there could be an election under any circumstances. Clearly under section 1157 there could be no such election. Under the plain provisions of the Constitution, when considered in the light of history and the experiences of men generally at the time of the adoption of that fundamental document (see Gallarno v. Long, State Auditor, 214 Iowa 805, 243 N.W. 719), it is clear that the election contemplated was one that could be held after due notice and in conformity with reasonable requirements of elections generally. Because of the very necessity of things, all vacancies occurring before the next general election could not be filled at such election. A vacancy might occur a few hours before the election, as was the case in Patten v. Haselton, 164 Iowa 645, 146 N.W. 477, 51 L.R.A. (N.S.) 226. Such vacancy could not possibly be filled at the next election. We would underestimate the statesmanship and foresight of the framers of the Constitution if we were to hold that they did not contemplate such a situation. As before indicated, these framers of the Constitution, realizing the situation just mentioned, did not, in their wisdom, contemplate a hit-and-miss, slipshod, irregular election, but rather those men had in mind an election held in accordance with the good usages and customs of the peoples generally when the Constitution was adopted. So, in determining what the framers of the Constitution meant by "the next election" and "the next general election," it is necessary to take into consideration the experiences of mankind in holding elections. When such experiences are considered, it becomes self-evident that the framers of the constitution intended, by the use of the words "the next election" and "the next general election," an election which is preceded by a due notice and ample time for the proper operation of the election machinery.

The Legislature, then, in passing section 1157, we must assume understood these constitutional principles and endeavored to comply therewith. Plainly the Constitution contemplates that the Legislature may prescribe notice and inaugurate election machinery. There is no provision in the Constitution, as before suggested, for notice or the supplying of the necessary election machinery, including nominations. Hence, "it is for the Legislature * * * to provide the notice for, and the method of, conducting elections, general or special." State ex rel. Ferguson v. Superior Court for King County et al., 140 Wn. 636, 250 P. 66, local citation 70 and 71.

See, also, section 1, Article XII, Iowa Constitution; Commonwealth v. Maxwell, 27 Pa. 444; People v. Budd, 114 Cal. 168, 45 P. 1060, 34 L.R.A. 46; In re Supreme Court Vacancy, 4 S.D. 532, 57 N.W. 495; State v. Jepsen, 48 Nev. 64, 227 P. 588; State v. Minor, 105 Neb. 228, 180 N.W. 84; State v. Gilliam, 93 Wn. 248, 160 P. 757; Watkins v. Venable, 99 Va. 440, 39 S.E. 147.

Some reference is made in argument to State v. Thoman, 10 Kan. 191. That case, however, is readily distinguishable from the case at bar because of the facts involved and the constitutional provisions considered therein. Because, then, in Iowa the constitutional provision is not full and complete in itself, supplemental legislation is necessary, as indicated by the foregoing cases. This must be true in view of the fact that the framers of the Constitution contemplated a proper notice and the orderly operation of election machinery. No claim is made by the appellant that section 1157 is unconstitutional, but, as before said, he does contend that if the construction is given thereto as asked by the appellee the legislation will become unconstitutional.

Clearly, however, section 1157 is entirely consistent with the Constitution. State v. Superior Court ( 140 Wn. 636, 250 P. 66, local citation 70 and 71), supra. An election held in the state of Iowa, considering the area of the state and the population, can well require a thirty-day period for notice, preparation, and the operation of the necessary election machinery. Time is required to understand the issues and the caliber and character of the men who are candidates. This court should not hold an act of the Legislature unconstitutional unless such unconstitutionality plainly, clearly, and palpably appears. Gallarno v. Long ( 214 Iowa 805, 243 N.W. 719), supra; Loftus v. Department of Agriculture, 211 Iowa 566, 232 N.W. 412.

There is no doubt, under the circumstances, that section 1157, construed as we have construed it above, does not infringe upon the constitutional provisions before mentioned, but rather it harmonizes therewith and carries out the purposes and intentions thereof. That is true because the thirty-day limitation furnishes the time for the notice and the operation of the necessary election machinery, as contemplated by the Constitution under the theory above explained. Such construction is entirely consistent with section 1155 of the 1931 Code. Assuming, without deciding, that section 1155 applies to the facts in the case at bar, it is apparent that said section must be construed harmoniously with section 1157. Under that construction, the words appearing in section 1155, to wit, "at which such vacancy can be filled," must be construed with the limitation contained in section 1157. Harmony in statutory construction demands this result. See Waugh v. Shirer, 216 Iowa 468, 249 N.W. 246.

So, unless other statutory provisions require a different construction of section 1157, there is no basis for the appellant's contention. The appellant, at this place, relies on section 609 of the 1931 Code. That section provides:

"Nominations occasioned by vacancies in office when such vacancies occur after the holding of the county, district, or state convention, or when they occur before said convention, but too late to be made thereby, shall be made by the party central committee for the county, district, or state, as the case may be, except that when the vacancy is in the office of senator of the United States, and occurs thirty days prior to the holding of the regular November election, nomination shall be made by convention as provided in case of vacancies in nominations for such office."

Section 609, just quoted, is a part of chapter 36 of the 1931 Code. This chapter is headed: "Nominations by Primary Election." Manifestly, section 609 does not purport to fix the occasion on which an election can be held. It does not provide for the holding of an election. Section 1157 is not modified, or in any way changed, by section 609. As already stated, section 1157 is a prohibition upon the time for holding elections to fill vacancies; while section 609 has to do with certain nominations. A nomination is never permissible unless there is to be an election. The nomination contemplated by section 609 presupposes an election at which the nominee can become a candidate. There is nothing in section 609 to indicate that the nomination there contemplated shall be for an election prohibited by section 1157. Section 609 is general in its terms and refers to different kinds of nominations for which different limitations are fixed. Consistency demands our holding that section 609 is entirely consistent with, adds nothing to, and takes nothing from, section 1157. Unless nominations are occasioned by vacancies in office, section 609 has no application. Consequently, if, in the case at bar, as previously indicated, under section 1157 and the constitutional provisions before considered, no vacancy occurred in the position on the Supreme Court sought by the appellant and the appellee, then section 609 has no application.

After considering the appellant's argument in all its details, then it becomes manifest that it is not well founded. Clearly, as before several times repeated, the constitutional provisions under consideration contemplate a legal election preceded by a proper notice, and the operation of the necessary election machinery. People v. Col., 132 Cal. 334, 64 P. 477. In that case, reading on page 479 of 64 P., it is said:

"The phrase `next regular election' is the next election held conformable to established rule or law."

See, also, People ex rel. Mattison v. Nye, 9 Cal.App. 148, 98 P. 241; In re Supreme Court Vacancy, 4 S.D. 532, 57 N.W. 495; Wainwright et al., County Election Board, v. Fore, 22 Okla. 387, 97 P. 831.

Under this theory of the law, there was no vacancy in appellee's office on November 8, 1932, at the time of the general election. See People v. Hardy, 8 Utah 68, 29 P. 1118, local citation 1119; State v. Gilliam, 93 Wn. 248, 160 P. 757. This is true because of the limitations contained in section 1157. These limitations are consistent with the spirit and contemplation of the Constitution, as previously explained. Because there was no vacancy at the aforesaid election, there could in fact be no election. State v. Birdsall, 186 Iowa 129, 169 N.W. 453.

Therefore, the appellee still holds his office under the appointment by Governor Turner, and may continue to hold it until the next general election.

II. A suggestion is made, however, that the people voted and therefore, because the people did thus vote, an election was held. When thus voting, the people did so without constitutional or statutory authority.

The right to vote is a political, as distinguished from a civil or property, right. Coggeshall v. City of Des Moines, 138 Iowa 730, local citation 737, 117 N.W. 309, 128 Am. St. Rep. 221; Walls et al. v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C, 980; Morris v. Colorado Midland Railway Co., 48 Colo. 147, 109 P. 430, 31 L.R.A. (N.S.) 1106, 139 Am. St. Rep. 268, 20 Ann. Cas. 1006; State ex rel. Shepard et al. v. Superior Court for King County, 60 Wn. 370, 111 P. 233, 140 Am. St. Rep. 925. It was said in the Coggeshall case ( 138 Iowa 730), supra, reading on page 737, 117 N.W. 309, 311, 128 Am. St. Rep. 221:

"The right to vote is not a natural or inherent right, but exists only as conferred by the Constitution of the state or some statute."

As previously indicated, the electors of this state cannot vote unless authorized by the Constitution or some legislative enactment. 10 American and English Encyclopedia of Law 2d 563; State ex rel. Edwards v. Ellison et al., 271 Mo. 123, 196 S.W. 751; Norton v. Coos County et al., 113 Or. 618, 233 P. 864; Williams et al. v. Glover et al. (Tex.Civ.App.), 259 S.W. 957; Levering et al. v. Board of Supervisors of Elections of Baltimore City, 129 Md. 335, 99 A. 360; State ex rel. Swan v. Kozer, 115 Or. 638, 239 P. 805; State ex rel. Everding v. Simon, 20 Or. 365, 26 P. 170; Kimberlin v. State ex rel. Tow, 130 Ind. 120, 29 N.E. 773, 14 L.R.A. 858, 30 Am. St. Rep. 208; People ex rel. Lynch v. Budd, 114 Cal. 168, 45 P. 1060, 34 L.R.A. 46; State ex rel. McGee v. Gardner, 3 S.D. 553, 54 N.W. 606; State ex rel. Bridges v. Jepsen, County Clerk, 48 Nev. 64, 227 P. 588; State ex rel. Fish v. Howell, 59 Wn. 492, 110 P. 386, 50 L.R.A. (N.S.) 336. See State v. Birdsall ( 186 Iowa 129), 169 N.W. 453, supra.

Although the electors voted to fill the alleged vacancy, that vote alone will not make the election legal if, in fact, there was no vacancy and therefore could be no legal election to fill the alleged vacancy. See cases above cited. An illegal and unauthorized election will not become authorized just because the electors voted at the election. See cases above cited, and Koehler v. Hill, 60 Iowa 543, 14 N.W. 738, 15 N.W. 609; State v. Executive Council, 207 Iowa 923, 223 N.W. 737; State ex rel. Bailey v. Brookhart, 113 Iowa 250, 84 N.W. 1064; State v. Weir, 33 Iowa 134, 11 Am. Rep. 115; State v. Beneke, 9 Iowa 203; Geebrick v. State of Iowa, 5 Iowa 491; Santo et al. v. State of Iowa, 2 Iowa 165, 63 Am. Dec. 487.

There was no vacancy at the general election in the office in question, as previously indicated. Therefore, there could be no legal or authorized election. Without statutory or constitutional authorization for the election, the result became a nullity and the appellee continued to hold his office under the appointment from the Governor. Furthermore, he may continue to hold such office in the future until the next general election, unless, by some omission or commission, as claimed by the appellant, the appellee abandoned the office or waived his right to hold the same under the aforesaid appointment.

III. Under this part of his argument, the appellant claims that the appellee, in fact, never qualified for the office under the appointment because he did not file his commission in the office of the secretary of state. Section 1077 of the 1931 Code provides:

"The bonds and official oaths of public officers shall, after approval and proper record, be filed: 1. For all state officers, elective or appointive, except those of the secretary of state, with the secretary of state."

In his pleadings, the appellant alleges the appointment and qualification of the appellee for the office under consideration. The appointment was made by the Governor, attested by the secretary of state, and impressed with the great seal of the state. The Governor issued a proper commission, as required by law. Sections 1152 and 1154 of the 1931 Code. At an early day, the Supreme Court of the United States had occasion to pass upon a similar question. Marbury v. Madison, 1 Cranch 137, 161, 2 L. Ed. 60. There it is said by Chief Justice Marshall:

"When all the requisites have been performed which authorize a recording officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labour of inserting it in a book kept for that purpose may not have been performed. In the case of commissions, the law orders the secretary of state to record them. When, therefore, they are signed and sealed, the order for their being recorded is given; and whether inserted in the book or not, they are in law recorded. * * * It is therefore decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state."

So in the case at bar, when the secretary of state attested the commission signed by the Governor, and placed the state seal thereon, he should have recorded it, and if he did not make a record of such recording in law, nevertheless the commission is recorded.

It is also claimed by the appellant that the appellee "failed to file objections with the secretary of state of the nomination of himself" and of appellant. Because the appellee did not file such objection, it is now claimed by the appellant that he waived his right to hold the office under the appointment, or abandoned the same and chose to become a candidate at the election. We do not desire our discussion of this proposition to be considered as an implication that the election before discussed would become valid because of the estoppel, waiver, or abandonment urged against the appellee.

A finding was made by the district court that the appellee is not barred from holding the office because of estoppel. No appeal has been taken by the state. Consequently, the state is bound by that adjudication. Even though the appellee were, under some circumstance, not entitled to hold the office, that fact would not authorize the appellant to hold the same. The appellant must obtain the office on the strength of his own title, rather than on the weakness, if any, in the title of the appellee. State ex rel. Freeman v. Carvey, 175 Iowa 344, local citation 355, 154 N.W. 931; Wooton v. Wheeler et al., 149 Ky. 62, 147 S.W. 914, local citation 915.

But a consideration of the statute involved will disclose the fact that there is no weakness in the appellee's title to the office because he failed to object to the sufficiency of the certificates of nomination by the Central Committee, or to the eligibility of the appellant to the office. Section 655-a4 of the 1931 Code contains the following provision:

"Objection to the legal sufficiency of a certificate of nomination or to the eligibility of a candidate may be filed by any person who would have the right to vote for a candidate for the office in question. Such objections must be filed with the officer with whom such certificate is filed and within the following time: 1. Those with the secretary of state, not less than twenty days before the day of election. 2. Those with other officers, not less than eight days before the day of election. 3. In case of nominations to fill vacancies occurring after said twenty or eight days, as the case may be, or in case of nominations made to be voted on at a special election, within three days after the filing of the certificate."

It is to be noted in the beginning that the objection contemplated by the statute may be filed by any person who would have a right to vote. In other words, the statute did not cast upon the appellee a duty that was peculiar to him. Furthermore, the objection is to be: First, to the sufficiency of the certificate of nomination; and, second, to the eligibility of a candidate. Under the circumstances here involved, there would be no objection to the sufficiency of the certificate of nomination by the appellant. For all that appears, the certificate was in sufficient form and signed by the proper officials. Appellee's objection is not to the certificate, but rather to the proposition that there could be no nominations because there was no vacancy to be filled. As before indicated, there is a further objection contemplated by the statute. That objection is to the eligibility of the candidate nominated. This portion of the statute did not place a burden upon the appellee to object, because the appellant was an eligible candidate if there had been a vacancy to fill. The waiver, abandonment, or estoppel now claimed by the appellee cannot be predicated upon the fact that he did not object to the sufficiency of the certificate of nomination or to the eligibility of the appellant. Among the reasons why this is true is the one that the certificate was legally sufficient, and the appellant was eligible if there had been a vacancy to fill.

An objection was interposed by the appellee with the Republican Central Committee at the time it met to nominate a candidate to fill the alleged vacancy. Likewise, the appellee interposed objections with the body that was canvassing votes. He challenged the right of that body to declare the appellant elected on the theory that there was no vacancy to be filled. When testifying, the appellee stated that he informed the State Central Committee that he did not want his name presented for nomination under any circumstances. At no time, the appellee says, did he authorize the Republican Central Committee to nominate him for the alleged vacancy. So, too, the appellee testified that he did not consent that his name be placed upon the ballot as a candidate for the position. Moreover, the appellee testified that he did not consent that his name be certified to the secretary of state as a candidate. According to his testimony, he did not authorize or consent that his name be certified to the several county auditors in the state, nor did he consent that the votes cast to fill the alleged vacancy be canvassed. Finally, it is said by the appellee that he did not solicit votes at the election for himself, nor did he authorize any one to, or consent that any one, vote for him. The appellant did not rely upon any act of the appellee. As a matter of fact, the appellant was nominated before the appellee. No prejudice was caused the appellant, therefore, because of any action of the appellee.

Under the record as it is certified to us, therefore, it cannot be said that because of estoppel, waiver, or abandonment the appellee is barred from holding the office under the original appointment by Governor Turner. By the foregoing discussion, we do not hold that there could, in any event, be an estoppel, in view of the fact that the people of the state are interested in their public officers and the election thereof.

IV. In addition to the foregoing contentions of the appellant, he also claims that the district court erred because it overruled his motion for a change of venue transferring the cause from Clinton to Polk county.

The appellant is a resident of Polk county, and he was such resident during all the times material to this controversy. As a basis for his motion for a change of venue, the appellant alleges that the quo warranto action was brought in Clinton county at the "instigation and procurement" of the said appellee. Because of such instigation and procurement, the appellant declares, the appellee waived "the usual rights of a bona fide defendant" in a quo warranto proceeding. Therefore, the appellant argues that under sections 11049 and 11052 of the 1931 Code he had a right to have the cause transferred to the county of his residence. If, then, under the theory of the appellant's motion, the appellee did not instigate, or procure the bringing of, the suit, the ruling of the district court must be sustained.

Upon the presentation of the motion, three witnesses testified. They were the appellee E.C. Halbach, the county attorney of Clinton county, and J.E. Purcell. Mr. Purcell testified that quo warranto proceedings were brought in Clinton county as a public movement at the instance of the Clinton County Bar Association without the knowledge of the appellee. In support of Mr. Purcell's testimony, the appellee said:

"I did not have any knowledge that a meeting of the Clinton County Bar Association was to be held in reference to my holding the office of Supreme Court judge. I did not attend such meeting. I was in Des Moines at the time, and I didn't know that the meeting was held. I had nothing to do with it, and didn't know of it until I read of it in the newspaper. I was engaged in my regular office work at the Supreme Court at the time. I had nothing to do directly or indirectly with the notice prepared by Miller and Purcell notifying Mr. Halbach (the county attorney) to commence the action."

According to the county attorney, he commenced the action because of the aforesaid notice. While it appears that Purcell and Miller, who are now the attorneys for the appellee, met with the bar of Clinton county in the initial stages of the proceeding, yet, under the record, it is conclusive that in the beginning they were not the attorneys for the appellee. It is apparent from the record that these men became the attorneys for the appellee after the quo warranto proceedings had been commenced by the county attorney. Of course, this case, as all other cases, cannot be decided on surmise or conjecture, but it must be determined on the facts revealed in the record.

Under the record, then, it cannot be found that the appellee instigated and procured the commencement of the quo warranto proceeding in his own behalf. Nor can it be said under such record that the appellee, and not the state, is the real party in interest. Because of all the facts and circumstances revealed in the record, therefore, it is apparent that the district court did not err in overruling the appellant's motion for a change of venue.

Wherefore, I concur in the affirming opinion.