[406]*406The following opinion, was filed January 17, 1923:
Per Curiam.
The following propositions are decided in this case:
1. That it should be presumed that the voters of Washburn county had knowledge of the constitutional amendment pending at the time of the late election proposing to make sheriffs eligible for re-election.
2. If the constitutional amendment had passed, the defendant, having received the highest number of votes, would have been eligible to hold the office of sheriff for a second term.
3. It cannot be held that the votes cast for the defendant were cast in bad faith; and the fact that he was ineligible at the time of the election did not under the facts of this case render void the votes cast for him.
4. Following former decisions of this court, the relator, although he received the next highest number of votes, was not elected, and there is now a vacancy in the office of .sheriff of Washburn county.
5. The order of the circuit court quashing the alternative writ and dismissing the proceedings,'with costs, is affirmed.
[407]*407The following opinion was filed February 6, 1923:
Jones, J.
This is an action in mandamus to compel the respondent Cameron, county clerk of Washburn county, to certify the relator, McKeever, as the duly elected sheriff of Washburn county. Defendant Johnson wg.s inter-pleaded.
The petition stated that Johnson was elected to the office of sheriff of Washburn county in November, 1920, and was the sheriff at the time of the filing of the petition; that at the general election in November, 1922, 1,265 votes were cast for him for the office of sheriff to- succeed himself; that under a constitutional provision that had been the law for many years he was ineligible to succeed himself. There were allegations in detail setting forth the publicity this subject had received.and that his disqualification was’well known to the voters of Washburn county; that the Wash-burn county clerk had declared his intention to certify the election of Johrison to the office of sheriff; that the relator, McKeever, received 597 votes, the highest number of votes cast at the election for any person eligible to qualify for the office; that the county clerk had refused to certify petitioner’s election. It was prayed that the county clerk be enjoined from certifying the election of Jolmson and that a writ of mandamus issue commanding the county clerk to certify the election of McKeever.
The alternative writ of mandamus was issued and the defendants demurred and moved to quash the writ. The motion to quash the alternative writ was granted.
Since the early history of the state there has existed the constitutional provision that sheriffs shall be chosen by the electors of the respective counties once in every two years and as often as vacancies shall happen; that they shall hold no other office and shall be ineligible for two years next succeeding the termination of their office. Sec. 4, art. VI, Const.
[408]*408It was stipulated by counsel that in June, 1921, the legislature duly passed a joint resolution proposing to amend this section so that sheriffs may succeed themselves and that the proposed amendment was submitted to the voters of the state and of Washburn county at the general election in November, 1922, and that due notice was given to the electors of the county, whereby they were expressly notified that if the proposed amendment were ratified by the people sheriffs would be permitted to succeed themselves. The proposed amendment had also been proposed and agreed to by a majority of the legislature in the session of 1919.
It is the contention of the relator that since the amendment had not been adopted .when the votes were cast for the candidates, the person then holding the office was ineligible as a candidate to hold the office even though he received the highest number of votes.
It is further argued that this provision of the constitution was well known to the voters; that those who voted for Johnson voted in bad faith; that their votes should -not be counted; and that since the relator received the next highest number of votes he was duly elected.
Counsel for relator rely on State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N. W. 1068. In that case the following facts appeared: During a campaign in which factional lines were closely drawn, five days before the primary election, and after-the ballots therefor were printed, a candidate for the nomination for the office of attorney general came to his death by drowning. The fact of his death was published generally in the newspapers throughout the state, which further stated that if he received a plurality of votes at the primary the state central committee could fill the vacancy. Such statement was repeated in certain letters sent to many parts of the state and in numerous telegrams sent to supporters of one faction, calling upon them to urge voters to vote for the decedent notwithstanding his death. [409]*409It was held that from these facts, admitted on demürrer, the court would infer that of the 63,482 votes cast for the decedent more than enough to give him the plurality of 5,286 which he received were cast by persons who knew that he was dead.
In that case it was claimed by the defendant that the provisions of the general election law relating to the filling of vacancies caused by declination, death, or other disability of a nominated candidate were imported into' the primary election law or made applicable to primary elections ; but the court did not adopt this view, and held that the death, before a primary, of one of several candidates for a party nomination at such primary does not create a vacancy which can be filled by the party committee either before or after such primary.
The statute (sec. 18, ch. 451, Laws 1903) provided that:
“The person receiving the-greatest number of votes at a primary as the candidate of a party for an office, shall be the candidate of that party for such office, and his name as such candidate shall be placed on the official ballot at the following election.”
It was held that a dead man is not a “person” within the meaning of this statute, and that the relator was the “person” who received the greatest number of votes at the primary. It is undoubtedly the rule of this case that when votes cast for one who, to the knowledge of the voters, cannot possibly hold the office, the votes are nullities and cannot be counted. In the days before woman suffrage, Lord Denman, Chief Justice, said:
“No one can doubt that, if an electo^ would nominate and vote only for a woman to fill the office of mayor or burgess in parliament, his vote would be thrown away: there the fact would be notorious, and every man would be presumed to know the law upon that fact.” Gosling v. Veley, 7 Adol. & El. n. s. 406, 439, 53 Eng. Com. Law, 406.
[410]*410The same rule would apply, as suggested by Lord Campbell, if the votes were cast for a fictitious person, as the “man in the moon” (Reg. ex rel. Mackley v. Coaks, 3 El. & Bl. 249), or it would apply to the many votes cast at the last election for the celebrated “Andy Gump.”
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[406]*406The following opinion, was filed January 17, 1923:
Per Curiam.
The following propositions are decided in this case:
1. That it should be presumed that the voters of Washburn county had knowledge of the constitutional amendment pending at the time of the late election proposing to make sheriffs eligible for re-election.
2. If the constitutional amendment had passed, the defendant, having received the highest number of votes, would have been eligible to hold the office of sheriff for a second term.
3. It cannot be held that the votes cast for the defendant were cast in bad faith; and the fact that he was ineligible at the time of the election did not under the facts of this case render void the votes cast for him.
4. Following former decisions of this court, the relator, although he received the next highest number of votes, was not elected, and there is now a vacancy in the office of .sheriff of Washburn county.
5. The order of the circuit court quashing the alternative writ and dismissing the proceedings,'with costs, is affirmed.
[407]*407The following opinion was filed February 6, 1923:
Jones, J.
This is an action in mandamus to compel the respondent Cameron, county clerk of Washburn county, to certify the relator, McKeever, as the duly elected sheriff of Washburn county. Defendant Johnson wg.s inter-pleaded.
The petition stated that Johnson was elected to the office of sheriff of Washburn county in November, 1920, and was the sheriff at the time of the filing of the petition; that at the general election in November, 1922, 1,265 votes were cast for him for the office of sheriff to- succeed himself; that under a constitutional provision that had been the law for many years he was ineligible to succeed himself. There were allegations in detail setting forth the publicity this subject had received.and that his disqualification was’well known to the voters of Washburn county; that the Wash-burn county clerk had declared his intention to certify the election of Johrison to the office of sheriff; that the relator, McKeever, received 597 votes, the highest number of votes cast at the election for any person eligible to qualify for the office; that the county clerk had refused to certify petitioner’s election. It was prayed that the county clerk be enjoined from certifying the election of Jolmson and that a writ of mandamus issue commanding the county clerk to certify the election of McKeever.
The alternative writ of mandamus was issued and the defendants demurred and moved to quash the writ. The motion to quash the alternative writ was granted.
Since the early history of the state there has existed the constitutional provision that sheriffs shall be chosen by the electors of the respective counties once in every two years and as often as vacancies shall happen; that they shall hold no other office and shall be ineligible for two years next succeeding the termination of their office. Sec. 4, art. VI, Const.
[408]*408It was stipulated by counsel that in June, 1921, the legislature duly passed a joint resolution proposing to amend this section so that sheriffs may succeed themselves and that the proposed amendment was submitted to the voters of the state and of Washburn county at the general election in November, 1922, and that due notice was given to the electors of the county, whereby they were expressly notified that if the proposed amendment were ratified by the people sheriffs would be permitted to succeed themselves. The proposed amendment had also been proposed and agreed to by a majority of the legislature in the session of 1919.
It is the contention of the relator that since the amendment had not been adopted .when the votes were cast for the candidates, the person then holding the office was ineligible as a candidate to hold the office even though he received the highest number of votes.
It is further argued that this provision of the constitution was well known to the voters; that those who voted for Johnson voted in bad faith; that their votes should -not be counted; and that since the relator received the next highest number of votes he was duly elected.
Counsel for relator rely on State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N. W. 1068. In that case the following facts appeared: During a campaign in which factional lines were closely drawn, five days before the primary election, and after-the ballots therefor were printed, a candidate for the nomination for the office of attorney general came to his death by drowning. The fact of his death was published generally in the newspapers throughout the state, which further stated that if he received a plurality of votes at the primary the state central committee could fill the vacancy. Such statement was repeated in certain letters sent to many parts of the state and in numerous telegrams sent to supporters of one faction, calling upon them to urge voters to vote for the decedent notwithstanding his death. [409]*409It was held that from these facts, admitted on demürrer, the court would infer that of the 63,482 votes cast for the decedent more than enough to give him the plurality of 5,286 which he received were cast by persons who knew that he was dead.
In that case it was claimed by the defendant that the provisions of the general election law relating to the filling of vacancies caused by declination, death, or other disability of a nominated candidate were imported into' the primary election law or made applicable to primary elections ; but the court did not adopt this view, and held that the death, before a primary, of one of several candidates for a party nomination at such primary does not create a vacancy which can be filled by the party committee either before or after such primary.
The statute (sec. 18, ch. 451, Laws 1903) provided that:
“The person receiving the-greatest number of votes at a primary as the candidate of a party for an office, shall be the candidate of that party for such office, and his name as such candidate shall be placed on the official ballot at the following election.”
It was held that a dead man is not a “person” within the meaning of this statute, and that the relator was the “person” who received the greatest number of votes at the primary. It is undoubtedly the rule of this case that when votes cast for one who, to the knowledge of the voters, cannot possibly hold the office, the votes are nullities and cannot be counted. In the days before woman suffrage, Lord Denman, Chief Justice, said:
“No one can doubt that, if an electo^ would nominate and vote only for a woman to fill the office of mayor or burgess in parliament, his vote would be thrown away: there the fact would be notorious, and every man would be presumed to know the law upon that fact.” Gosling v. Veley, 7 Adol. & El. n. s. 406, 439, 53 Eng. Com. Law, 406.
[410]*410The same rule would apply, as suggested by Lord Campbell, if the votes were cast for a fictitious person, as the “man in the moon” (Reg. ex rel. Mackley v. Coaks, 3 El. & Bl. 249), or it would apply to the many votes cast at the last election for the celebrated “Andy Gump.”
The case at bar presents quite a different situation. Johnson, the defendant,‘was a very live person, of real flesh and blood, who received 668 more votes than the relator.
The electors are presumed to have known of the constitutional provision. They are presumed to have known of the proposed amendment on which they were to vote on the same day on which the county officers were to- be elected. This and several other proposed amendments had been given wide publicity in the press and had been subjects of general discussion among the electors. Legal notice of the vote to be taken was .given and it contained (these words: “If this proposed amendment is ratified by the people, sheriffs will be permitted to succeed themselves.”
The proposed amendment failed of passage, and it is well settled under several decisions of this court, that the defendant is ineligible to hold the office. State ex rel. Knutson v. Johnson, 171 Wis. 521, 177 N. W. 899; State ex rel. Pluntz v. Johnson, 176 Wis. 107, 184 N. W. 683, 186 N. W. 729; State ex rel. Off v. Smith, 14 Wis. 497.
The question remains to be determined whether the votes cast for him were to be counted for any purpose. If they are to be treated as nullities, the relator, having received the next highest number of votes, was entitled to be certified as the duly elected sheriff. In State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N. W. 1068, Mr. Justice Barnes said in the opinion (p. 87) :
“It is well' settled that where electors vote for an ineligible candidate without knowledge of his disqualification, and such candidate receives a plurality of the votes cast, his disqualification does not result in electing the candidate [411]*411receiving the next highest number of votes. In such a case the votes cast for the ineligible candidate must be counted, and there is a vacancy in the office instead of an election of the candidate receiving less than a plurality of the votes.”
In State ex rel. Off v. Smith, 14 Wis. 497, one who was an alien both at the time of election and the beginning of the term of office was held ineligible to hold the office of sheriff, and it was also held that the person receiving the next, highest number of votes was not elected. In State ex rel. Schuet v. Murray, 28 Wis. 96, it was held that where one was disqualified as an alien at the time of the election but became a citizen before the beginning of the term, he was entitled to hold the office of clerk of the county board of' supervisors; that the disqualification did not relate to the election but to the holding of the office.
Mr. Justice Lyon expressed it as his personal view that the same rule would apply to minors and to those who had not been residents of the state for the requisite time if in other respects they were qualified electors, provided the disqualification existing at the time of the election should' be removed before the beginning of the term for which they were elected.
This decision, as to Ihe real question involved, was approved in State v. Trumpf, 50 Wis. 103, 5 N. W. 876, 6 N. W. 512, and in State ex rel. Schommer v. Vandenberg, 164 Wis. 628, 160 N. W. 1037.
It is contended by counsel for relator that in these cases the voters did not know of the ineligibility of the candidates at the time of the election and that the Bancroft-Frear Case. is controlling; that the electors knew when they cast their votes that Johnson was ineligible and could only guess whether the proposed amendment would be ratified; that such votes were “gambling” votes and were cast in bad faith.
We are not disposed to adopt the view that we should presume that 1,265 voters in a rather thinly settled county [412]*412acted in bad faith in voting for Johnson under the circumstances which have been stated. We are rather disposed to presume that the mass of voters of Washburn county-voted with a due appreciation of the importance of the elective franchise, one of the most cherished privileges of the American citizen.
Those who .voted for Johnson doubtless believed like many thousand other voters of the state that the proposed amendment would be ratified by the people and they believed that the candidate of their choice could hold the office of sheriff. We find in their conduct none of that wilfulness which might constitute bad faith. They were disappointed in their expectations, but their votes are not to be rejected as mere blank paper. They were votes to be counted. If the proposed amendment had been ratified by the vote of the people, the disqualification of Johnson to succeed himself would have been removed. The proposed amendment failed of adoption and he was not eligible to hold the office.
Since the relator did not have a plurality of the votes cast he could not, under the decisions already referred to, gain title to the office. It follows that on the expiration of Johnson’s term there was a vacancy in the office to be filled as provided by law.
By the Court. — Order affirmed.