The following opinion was filed October 18, 1921:
Owen, J.
The answer alleges that “during the year 1917 defendant was appointed to the office of sheriff of Barron county for the unexpired portion of the term commencing on the first Monday of January, 1917; by virtue of such appointment, and while holding the said office for the unexpired portion of the said term and until his successor for the term commencing on the first Monday of January, 1919, should qualify, defendant performed the duties of sheriff [108]*108of Barron county until the month of July, 1920, when his successor for. the term commencing on the first Monday of January, 1919, qualified; defendant received a majority of the votes cast at the general election in November, 1920, for the office of sheriff of Barron county for the term commencing on the first Monday of January, 1921, and duly qualified for the said office for the said term, and now holds the same by virtue of such election and qualification.”
The averment that the defendant during the year 1917 was appointed to the office of sheriff of Barron county for the term ending on the first Monday in January, 1919, and that he continued to act as such sheriff until July, 1920, at which time his successor qualified, will be noted. If any curiosity should arise concerning the extraordinary length of time intervening between the 1st day of January, 1919, and the time when his successor qualified, the occasion thereof will be explained by a reference to the case of State ex rel. Knutson v. Johnson, 171 Wis. 521, 177 N. W. 899. The facts are that Johnson was elected to succeed himself as sheriff for thea term beginning on the first Monday in January, 1919; and after the decision of this court holding him ineligible to such election, by reason of which a vacancy existed in the office, an appointment to fill the vacancy was made in July, 1920. Such appointee was the successor who qualified in July, 1920. This recital in no manner affects the legal effect of the answer. That document sets forth the situation with legal definiteness, but with a barrenness calculated to excite curiosity, which we feel the above statement may satisfy.
The question presented is whether the defendant, having served under his appointment, made during the year 1917, until July, 1920, was eligible to election for the term commencing on the first Monday of January, 1921. Sec. 4 of art. VI of the constitution provides that “sheriffs shall hold no other office, and be ineligible for two years next succeeding the termination of their offices.” If we fix the date [109]*109upon which the defendant’s office terminated, it can be determined whether he was eligible for election to the office for the term beginning on the first Monday of January, 1921, by a simple mathematical calculation.
It is the defendant’s contention that hi§ office terminated on the first Monday in January, 1919. If he had been elected to the office such would have been the case. The section of the constitution already alluded to provides that sheriffs and other county officers shall be chosen by the electors of the respective counties once in every two years. This plainty fixes the term of county officers at two years. The constitution makes no provision as to when such terms shall begin and end, and consequently the statute has provided that they shall begin and end on the first Monday in January in each odd-numbered year. The constitutional provision under consideration does not provide that those elected to the office of sheriff shall hold over until their successors are elected and qualified. The general trend of judicial decisions in this country is to the effect that where the written law contains no provision, either express or implied, to the contrary, an officer is entitled to hold his office until his successor is elected and qualified. While the constitutional provision under consideration provides that sheriffs and other county officers shall be elected for two years and is silent as to their holding over, until their successors are elected and qualified, it is also provided in the same section that “all vacancies shall be filled by appointment, and the-person appointed to fill a. vacancy shall hold only for the unexpired portion of the term to which he shall be appointed and until his successor shall be elected and qualified In view of the express provision that those appointed to fill a vacancy shall hold until a successor shall be elected and qualified, the conclusion is irresistible that such was not the intention with reference to those who are elected. This conclusion is strengthened, so far as it applies to the office of sheriff, by the provision that sheriffs shall be “ineligible [110]*110for two years next succeeding the termination of their offices.” So far as the- office of sheriff is concerned, at least, the constitutional purpose seems to have been to constitute an elective term of two years and no more. Such being the term fixed by the constitution, it may not be enlarged by legislative enactment, an .effect ascribed by appellant's counsel to sec. 59.12, Stats. So we come to the conclusion that if the defendant had originally come into the office by an election, his office would have terminated on the first Monday in January, 1919. That was the end of the term as fixed by statutory enactment supplementing the constitutional provision upon the subject. As one who is elected to the office of sheriff does not hold over, the end of the term for which he is elected necessarily marks the termination of his office.
But, as we have seen, the constitution provides differently with reference to appointments to fill vacancies in the office of sheriff, if not all other county offices. In such cases the appointment is not only for the unexpired portion of the term, but until a successor shall be elected and qualified. The term for. which Johnson was originally appointed, therefore, did not necessarily end on the first Monday of January, 1919. He was appointed to hold until that time and until such further time as his successor shall be elected and qualified. He himself was elected as his successor. He was ineligible for the office, and, while he pretended to qualify and act under such election, such election furnished him no title thereto. He did have a good title to the office by reason of his appointment, which continued-him in office until an eligible successor should be elected or appointed and should qualify therefor. This' did not occur until .July, 1920. His office, therefore, did not terminate until July, 1920, at which time his ineligibility attached disqualifying him from holding the office for two years thereafter. It follows that he 'is not eligible to hold the office for the term [111]*111beginning on the first Monday of January, 1*921, and that the demurrer to the answer was properly sustained.
. Attorneys for appellant stress the following language used in the opinion in State ex rel. Knutson v. Johnson, 171 Wis. 521, 524, 177 N. W. 899:
“By such • appointment it becomes the appointee’s office, and the expiration of the two-year period succeeding the election of the predecessor is as much the termination of the appointee’s office as it would have been of the official elected had he continued therein. No other term than such particular two-year term is recognized in the constitution. . It is the one and same term no matter who the incumbent.”
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The following opinion was filed October 18, 1921:
Owen, J.
The answer alleges that “during the year 1917 defendant was appointed to the office of sheriff of Barron county for the unexpired portion of the term commencing on the first Monday of January, 1917; by virtue of such appointment, and while holding the said office for the unexpired portion of the said term and until his successor for the term commencing on the first Monday of January, 1919, should qualify, defendant performed the duties of sheriff [108]*108of Barron county until the month of July, 1920, when his successor for. the term commencing on the first Monday of January, 1919, qualified; defendant received a majority of the votes cast at the general election in November, 1920, for the office of sheriff of Barron county for the term commencing on the first Monday of January, 1921, and duly qualified for the said office for the said term, and now holds the same by virtue of such election and qualification.”
The averment that the defendant during the year 1917 was appointed to the office of sheriff of Barron county for the term ending on the first Monday in January, 1919, and that he continued to act as such sheriff until July, 1920, at which time his successor qualified, will be noted. If any curiosity should arise concerning the extraordinary length of time intervening between the 1st day of January, 1919, and the time when his successor qualified, the occasion thereof will be explained by a reference to the case of State ex rel. Knutson v. Johnson, 171 Wis. 521, 177 N. W. 899. The facts are that Johnson was elected to succeed himself as sheriff for thea term beginning on the first Monday in January, 1919; and after the decision of this court holding him ineligible to such election, by reason of which a vacancy existed in the office, an appointment to fill the vacancy was made in July, 1920. Such appointee was the successor who qualified in July, 1920. This recital in no manner affects the legal effect of the answer. That document sets forth the situation with legal definiteness, but with a barrenness calculated to excite curiosity, which we feel the above statement may satisfy.
The question presented is whether the defendant, having served under his appointment, made during the year 1917, until July, 1920, was eligible to election for the term commencing on the first Monday of January, 1921. Sec. 4 of art. VI of the constitution provides that “sheriffs shall hold no other office, and be ineligible for two years next succeeding the termination of their offices.” If we fix the date [109]*109upon which the defendant’s office terminated, it can be determined whether he was eligible for election to the office for the term beginning on the first Monday of January, 1921, by a simple mathematical calculation.
It is the defendant’s contention that hi§ office terminated on the first Monday in January, 1919. If he had been elected to the office such would have been the case. The section of the constitution already alluded to provides that sheriffs and other county officers shall be chosen by the electors of the respective counties once in every two years. This plainty fixes the term of county officers at two years. The constitution makes no provision as to when such terms shall begin and end, and consequently the statute has provided that they shall begin and end on the first Monday in January in each odd-numbered year. The constitutional provision under consideration does not provide that those elected to the office of sheriff shall hold over until their successors are elected and qualified. The general trend of judicial decisions in this country is to the effect that where the written law contains no provision, either express or implied, to the contrary, an officer is entitled to hold his office until his successor is elected and qualified. While the constitutional provision under consideration provides that sheriffs and other county officers shall be elected for two years and is silent as to their holding over, until their successors are elected and qualified, it is also provided in the same section that “all vacancies shall be filled by appointment, and the-person appointed to fill a. vacancy shall hold only for the unexpired portion of the term to which he shall be appointed and until his successor shall be elected and qualified In view of the express provision that those appointed to fill a vacancy shall hold until a successor shall be elected and qualified, the conclusion is irresistible that such was not the intention with reference to those who are elected. This conclusion is strengthened, so far as it applies to the office of sheriff, by the provision that sheriffs shall be “ineligible [110]*110for two years next succeeding the termination of their offices.” So far as the- office of sheriff is concerned, at least, the constitutional purpose seems to have been to constitute an elective term of two years and no more. Such being the term fixed by the constitution, it may not be enlarged by legislative enactment, an .effect ascribed by appellant's counsel to sec. 59.12, Stats. So we come to the conclusion that if the defendant had originally come into the office by an election, his office would have terminated on the first Monday in January, 1919. That was the end of the term as fixed by statutory enactment supplementing the constitutional provision upon the subject. As one who is elected to the office of sheriff does not hold over, the end of the term for which he is elected necessarily marks the termination of his office.
But, as we have seen, the constitution provides differently with reference to appointments to fill vacancies in the office of sheriff, if not all other county offices. In such cases the appointment is not only for the unexpired portion of the term, but until a successor shall be elected and qualified. The term for. which Johnson was originally appointed, therefore, did not necessarily end on the first Monday of January, 1919. He was appointed to hold until that time and until such further time as his successor shall be elected and qualified. He himself was elected as his successor. He was ineligible for the office, and, while he pretended to qualify and act under such election, such election furnished him no title thereto. He did have a good title to the office by reason of his appointment, which continued-him in office until an eligible successor should be elected or appointed and should qualify therefor. This' did not occur until .July, 1920. His office, therefore, did not terminate until July, 1920, at which time his ineligibility attached disqualifying him from holding the office for two years thereafter. It follows that he 'is not eligible to hold the office for the term [111]*111beginning on the first Monday of January, 1*921, and that the demurrer to the answer was properly sustained.
. Attorneys for appellant stress the following language used in the opinion in State ex rel. Knutson v. Johnson, 171 Wis. 521, 524, 177 N. W. 899:
“By such • appointment it becomes the appointee’s office, and the expiration of the two-year period succeeding the election of the predecessor is as much the termination of the appointee’s office as it would have been of the official elected had he continued therein. No other term than such particular two-year term is recognized in the constitution. . It is the one and same term no matter who the incumbent.”
From this it is argued that appellant’s term of office under and by virtue of the appointment terminated on the first Monday of January, 1919, and, upon a superficial consideration, there may appear to be a conflict between the language .quoted and the statements herein- made. But it should be remembered that judicial language should always be limited to the subject under consideration. The question there was when the term, that is, the fixed term, for which the defendant was originally appointed, ended., The fixed term for which he was appointed ended the first Monday in January, 1919. Until that time he had an absolute right to the office the same as though he had originally been elected thereto. Although, as held in that opinion, he legally held over, there was nevertheless a vacancy in the office, and his title thereto after the expiration of the fixed and definite term was defeasible and subject to be terminated whenever- an eligible and lawfully elected or appointed successor should qualify therefor. His appointment was really for two periods of time: one was to cover the unexpired portion of the fixed term, and the other for such time thereafter as might elapse before an eligible successor should qualify for the office. The first period- was fixed and definite. The latter period was indefinite and uncertain. [112]*112While he held the office for more than eighteen months after the expiration of the fixed term under and pursuant to his appointment, he was merely filling a vacancy in the office until some eligible person qualified therefor. While the original term for which he was appointed expired on the first Monday in January, 1919, his office did not terminate until the month of July, 1920, and his ineligibility did not attach until that time.
By the Court. — Order affirmed.