#### State ex rel. Dietrich and others, Appellant, vs. Patterson, City Clerk, Respondent.

*February 25*—

September *29, 1903.*

Judgment affirmed upon an equal division of the justices of this court participating in the hearing and decision.

Appeal from a judgment of the circuit court for Douglas county: A. J. ViNJE, Circuit Judge.

*Affirmed.*

*Mandamus*to compel the city clerk of the city of Superior,. Wisconsin, to place the names of relators on the official ballot as the regular Republican nominees for the various elective city offices to be filled by election thereto at the spring election of 1902. In the various caucus districts-of the city, elections were held in the spring of 1902 for the purpose of choosing, delegates to the city convention called for the purpose of placing in nomination candidates for the aforesaid city offices.. The result was that seventy-one delegates were duly declared elected, and were duly certified, entitling them severally to participate in the work of the convention if they were in fact legally elected. " In the preliminary work of organizing the-convention, the right of any delegate not receiving at the primary a majority of all the votes polled, including blank ballots, was challenged. It appeared that of the seventy-one-persons claiming the right to sit as members of the “convention, twenty received at their caucuses more than half the votes there polled including blank ballots, thirty-one received more than half the votes polled excluding blank ballots, and twenty received only a plurality of the votes polled. The objection did not prevail. Thereupon eighteen delegates, representing seventeen and one-half votes, left the convention, claiming that they wére, in the main, the sole parties 'legally entitled to participate in placing in nomination regular Republican nominees for the coming city election. Those who-*53remained consisted of tbe twenty wbo received a plurality of .all tbe votes cast, twenty-seven, representing twenty-seven and one-balf votes, wbo received a majority of tbe votes cast excluding blank ballots, and seven wbo received a majority ■of all votes east. Sueb remaining delegates represented, as indicated, a majority of all wbo received at tbeir caucuses a majority of all votes there cast excluding blank ballots, but a minority of those wbo received only a majority including blank ballots. They nominated a full Republican ticket for tbe spring election, and a political committee for tbe ensuing year. Those wbo withdrew organized as tbe regular Republican convention in a room near tbe one named in tbe call for tbe convention and nominated a full list of candidates to stand as tbe Republican nominees at tbe coming city election, and also a political city Republican committee for tbe ensuing year. Each list of candidates, and each city committee elected as aforesaid, was in due form certified to tbe city clerk, who, deeming tbe persons wbo withdrew as aforesaid to constitute a majority of those wbo were entitled to participate in -tbe convention, recognized tbe ticket nominated by them as regular and placed tbeir names upon tbe official ballot for tbe coming city election. This proceeding was commenced to compel tbe clerk to recognize tbe relators as tbe persons entitled to be placed upon such ballot as such nominees.

Tbe issue raised and decided in tbe court below was whether, under cb. 341, Laws of 1899, tbe word “majority” means a majority of all votes cast at tbe caucus including blank ballots. Tbe relators’ cause depended upon that issue being decided in tbe negative. Tbe decision was tbe other way. Judgment was rendered accordingly.

Eor tbe relators there was a brief by *T-. L. M’Intosh, Louis Hanitch,*and *A. 0. Titus,*and oral argument by *H. W. Dietrich.*

*Phil. H. Perkins,*for tbe respondent.

*54Marshall, J.

This cause was submitted February 25, 1903. There were then but four justices participating in the business of the court. They were equally divided as to the proper judgment to render. The disposition of the matter was delayed only to admit of further investigations, which did not lead to any material change. Since a reversal would not enable appellant to obtain relief, except by way of costs, and ch. 341, Laws of 1899, was amended by ch. 382, Laws of 1903, eliminating the feature which gave rise to the litigation, rendering it unlikely that we shall have upon the same facts the question upon which the cause turned in the court below before us again, it seems best to announce the decision of the court as of the time of the submission, in accordance with what' the then situation rendered necessary if acted upon at all.

*By the Gourt.*— The judgment appealed from is affirmed upon an equal division of the justices participating in the hearing and decision, the order to that effect to be entered as of the time the cause was submitted, to wit, February 25, 1903.