#### State ex rel. Schommer, Respondent, vs. Vandenberg, Appellant.

*December 6, 1916*

January *16, 1917.*

*Elections: Validity: Ineligibility of person chosen: Town treasurer: Inability to qualify: Vacancy: Filling by appointment: Statute■ construed: "Elected."*

1. It is not necessary to the validity of an election that the person voted for should be then eligible to hold the office, if the electors in good faith believed he was and voted for him with that understanding. That he could not qualify would not affect the-validity of his election, but merely his right to hold the office.

2. Where an ineligible person was legally elected town treasurer his. refusal, due either to inability or disinclination, to qualify for the office created a vacancy and, under sec. 818, Stats., the town board properly appointed another treasurer in his place.

3. A town treasurer appointed pursuant to sec. 818, Stats., is “elected” within the meaning of that word in sec. 811, which provides that every town officer shall hold his office "until his. successor is *elected*and qualified.”

Appeal from an order and a judgment of tbe circuit court for Outagamie county: Edgae V. Weewbe, Circuit Judge.

*Affirmed.*

, Action to test defendant’s title to tbe office of town treasurer-of tbe town of Freedom in Outagamie county. The complaint shows tbat at tbe annual town meeting in 1915 the defendant was duly elected town treasurer for one year and tbat be. qualified and served as such during tbe year; tbat at tbe an*629nual town meeting for 1916 be received 152 votes for such office, while one Leisch received 163 votes for such office, and that the board of inspectors of the election certified that Leisch was duly elected town treasurer for the ensuing year. Leisch refused to qualify on the ground that he was not at the time of the election and has not since been qualified to hold the office, though he and the electors believed he was qualified at the time of the election. It further shows that on April 19, 1916, and more than ten days after the election, the town board duly appointed the complainant, Schommer, town treasurer; that he has duly qualified and demanded the possession of the office from the defendant and has by him been refused possession. The defendant demurred to the complaint. The court overruled the demurrer with leave to answer within twenty-four hours. Defendant failed to answer within the prescribed time and judgment was entered against him. Erom the order overruling the demurrer and the judgment of ouster the defendant appealed.

Eor the appellant there was a brief by *Rooney &*Grogan, attorneys, and *George N. Danielson,*of counsel, and oral argument by *Francis J. Rooney.*

For the respondent there was a brief by *Morgan <& Benton,*and oral argument by *John Morgan.*

ViNJE, J.

It was held in *State ex rel. Schuet v.*Murray, 28 Wis. 96, that it was not necessary to the validity of an election that the person voted for should be then eligible to hold the office if the electors in good faith believed he was and voted for him with that understanding. This rule was reaffirmed in *State v.*Trumpf, 50 Wis. 103, 5 N. W. 876, 6 N. W. 512. The case of *State ex rel. Bancroft v.*Frear, 144 Wis. 79, 128 N. W. 1068, does not hold the contrary. In that case the person voted for was, to the knowledge of the voters, dead, hence no valid vote could be cast for him. In the present case it is admitted that Leisch was believed by the *630electors to be eligible at the time tbe votes were cast. It follows from this that he was legally elected. That he could not qualify did not affect the validity of his election but merely his right to hold the office. Having been legally elected and having refused to qualify, a vacancy was created in the office of town treasurer. Sec. 818, Stats. 1915. The reason for a refusal to qualify is immaterial. It may be due to inability or to’ disinclination. Whatever the cause, a vacancy is created by the refusal. In this case a vacancy was also created by another clause of said section providing'that a vacancy shall be created “if he shall be unable for any cause to perform his official duties.” Here ineligibility to hold office rendered, him unable to perform his official duties.

The contention that the provision in sec. 811, Stats. 1915, that the treasurer “shall hold until his successor is *elected*and qualified,” excludes one who has been appointed and has qualified from lawfully holding the office must be held to be without force, because if sound it would render those provisions of the statute providing for an appointment meaningless. The words quoted must be held to include an appointee as well as one elected in order to give full force and effect to all the statutory provisions relating to the incumbency of the office.

Some argument is made that the defendant should now be allowed to answer if the order is affirmed, so that he may plead such defenses to the merits as he may have. No application to that effect was made to the trial court and we deem the record barren of any facts calling for further litigation of the matter.

*By the G'ourt.*— Order and'judgment affirmed.