The opinion
Farmer and Thompson, JJ., dissenting:
The first writ of election was dated August 11, 1924, was filed with the county clerk August 13, 1924, and ordered a special election to fill a vacancy caused by the resignation of Judge McDonald on December 5, 1924. That writ was void on its face, and the county clerk was justified in refusing to call a special election for November 4, 1924, to fill a vacancy to occur December 5, 1924. If the writ on its face was void it was not the duty of the clerk to obey it. People v. Dillon, 266 Ill. 272 ; Biddle v. Willard, 10 Ind. 62 ; Commonwealth v. Martin, 22 Pa. St. 319; State v. Edgenoss, 108 Ohio St. 493 .
After this suit was begun another- writ of election was issued and filed in the office of the county clerk October 10, 1924, calling a special election for November 4, 1924. It was dated August 11, 1924, and contained the statement that it was issued “to correct a typewriter error in date of resignation in original.” In the second writ the date of the resignation of Judge McDonald was stated to have occurred December 5, 1923. - It could not be contended that the clerk should issue notice for a special election if no writ had been filed in his office until October 10, but the opinion holds it was issued to correct an error in the original writ, that'the error in the first writ issued was apparent on the face of it, and that it was the duty of the clerk to call the special election. With that proposition we cannot agree. The writ of election was the only authority and notice of the facts recited in it of which the clerk could take cognizance. It was his duty to refuse to give notice of the special election under that writ, and it was too late when the second writ was issued after this suit was begun to make it the duty of the clerk to give notice of a special election. There was nothing on the face of the first writ filed in the clerk’s office to indicate that any mistake had been made or that the election was not ordered in anticipation of a resignation that had not yet occurred. ■ The writ furnished the only information the clerk had, and was the only authority upon which he was to act. It was not his duty to make an investigation, outside of the face of the writ, to determine whether the writ incorrectly recited the resignation of Judge McDonald. If the issuance of the writ calling for a special election to fill a vacancy before it had occurred was a mistake, it was no part of the duties of the clerk to determine that matter, but the responsibility for the mistake rested solely on the officer issuing the writ, and it could not be corrected by the issuance of a writ at the time the second writ was issued, stating that in the first writ there was a mistake in the date of the resignation of Judge McDonald. In our opinion the clerk was justified in refusing to give notice of the special election.
This is a joint petition for the writ, and it cannot be allowed as to one of the petitioners and denied as to the other. (Commonwealth v. Martin, supra.) The second writ of election was wholly void as authority to the clerk to give notice of a special election for November 4, 1924, and we think the writ should have been denied.