| Ind. | May 15, 1862
This is a suit for a mandate against Governor Morton, commanding him to issue a commission to John A. Beal, JEJsq., as Common Pleas Judge of the 12th District, in the State of Indiana. The mandate was refused below. The ease was decided upon the pleadings. The facts are these:
The lion. John Coburn was judge of said Common Pleas District, and acted as such till the 28th of September, 1861, and including the said 28th day, at the expiration of which he retired from the active duties of the office, and left it vacant.
On the 30th day of September, the Hon. Charles A. Bay was appointed judge of said District, by Governor Morton, and he entered immediately upon the duties of the office.
On the 8th of October following, ten days after Judge Co burn retired from the bench, the general annual election took place in the State of Indiaua. At that election John A. Beal, JEsq. was a candidate for the office of Common Pleas judge of the 12th district above mentioned, and received a larger number of votes than was cast, at said election, for any other person, for said judgship.
3sTo notice was given to the voters that an election forjudge was to be held; and an actual vacancy, visible to the people, by the retirement from the bench of Judge Coburn, and the occupancy of it by Judge Bay, had not occurred twenty days before the election, whereby the voters had constructive notice. See Beal v. Ray, 17 Ind. p. —.
On the facts thus far appearing, it is clear that the election of Mr. Beal was not in conformity to law, and was of no-validity.
But it further appears, that the Governor designated Judge Coburn to receive the appointment of Colonel of the 38d regiment of Indiana volunteers, on the 16th of September; that he was mustered into the service of the United States, on that day, by Col. Wood; and that he acted in the two offices of judge and colonel, in the former under a copimission, in the latter without a commission, till the 28th of September, when his commission as Colonel was issued to him and accepted, but was ante-dated so as to appear to have been issued on the 16th of September. This commission, it appears, was not issued on the 16th, at the request of Col. Coburn, and with the consent of the Governor, in order to give the former an opportunity to decline the office altogether and continue in his judgship if he should subsequently prefer to do so. We do not think these additional facts change the character of the case. We doubt much if Judge Coburn was Colonel until he laid off his judicial robes and received his commission as such: but even, if he was, the people were not bound to take notice of the fact; and a case is not presented where they could have constructive notice of a vacancy, if one existed, till the retirement of Judge Coburn from the bench and the appearance upon it of Judge May.
The judgment is affirmed, with costs.