#### The State of Wisconsin Ex. Rel., Josiah Bond, *vs.*Volney French, Respondent.

The act of 21st August, 1848, providing for the holding of general and special elections is to be construed like all other acts; not only by the words of the enactment, but by the objects in view in the eiiaetment, and in accordance with the Constitution where that is concerned.

The Constitution provides that all County, precinct and town officers shall hold their offices until the Legislature shall provide by law, in accordance with the Constitution, for the holding elections to fill such offices.

The Constitution provides that general elections shall be holden on the Tuesday next succeeding the first Monday of November in each year, but does not specify what officers shall *then*be elected. The act of21st of August, 1848, provided for what the Constitution did not, and by that act the office of Judge of Probate was not prohibited to be filled at the general election, and is not in hostility to the provisions of the Constitution.

A Judge of Probate is not within the meaning of the Constitution prohibiting the election of “Judges” within thirty days of a general election.

The official title of “ Judge of Probate,” is not to be considered as constituting such an officer as is meant and intended by the prohibition of the Constitution. It is the mere designation of an officer whose functions do not distinctively make him a “Judge” within the meaning of the Constitution.

This was a proceeding by mandamus by the relato!, to test the validity of his election as Judge of Probate of the County of Racine.

The relator received the greatest number of votes at the general election in 1848, for the office above indica1 ted. The respondent was the incumbent of that office at the time of the election of the relator; and at the time at which the relator would have been entitled to assume *131the office, if duly elected, the respondent refused to deliver to the relator the books and muniments pertaining to the office.

Two questions were involved in this case, as will be seen by the decision of the Co lift. First, whether the election of that officer was provided for by the act of the Legislature of August 1st, 1848, and second, whether a Judge of Probate could be elected at of within thirty days of a general election.

A stipulation between the litigant parties reduced the questions for the Court to determine, to these two points substantially.

*Brown, Attorney General,*& *Bond,*for Relator»

*Chatfield,*for Respondent.

The opinion of the Court embraces all the points raised and argued by the counsel on either side, so far as the same were important or applicable to the matter to be decided; which were first, whether the election of Judges of Probate, at the general election of 1848, was provided for by the act of the Legislature of August 21, 1848.

And second, whether a Judge of Probate could be elected at or within thirty days of a general election.

*By the Court.*

Stow, C. J.

The relator received a majority of votes for Judge of Probate of Racine County, at the late general election, and has since taken the official oath. The respondent was the Judge of Probate of the County at the adoption of the Constitution, and still claims to be so, and refuses to deliver the books and mun-iments of the office. To compel this delivery a *mandamus*is'now applied for. No objection is made to the form of *132proceeding, and it is understood that both parties are desirous of having the whole matter disposed of on this application.

Two questions are presented in this case: -

1st, Was the election of Judges of Probate at the late .general election, in November, provided for by the act of August 21, 18481

2d, Can a Judge of Probate be elected, at or within thirty days of, a general election!

These are questions of the gravest character. They involve the construction of a law under which a large proportion of the administrative officers of the State are now acting; and the constitutionality of an election in which all our citizens participated.

The construction of the act to provide for the holding of general and special-elections, approved August 21,1848, must be determined like other statutes, not *only by its*own words, but by a reference to the supposed object of the Legislature in passing it, and the subject of Legislation; and in this case, by reference to the Constitution. The seventh section of the Constitutional schedule provides, that *“*all county, precinct and town officers shall hold their respective offices until the Legislature shall, in conformity with the provisions of the Constitution, provide for the folding of elections to fill such offices.” The first section of the thirteenth article of the Constitution provides, “ that general elections shall be holden on the Tuesday •succeeding the first Monday of November in each year.” This provision of itself was ineffectual, inasmuch as it did not designate *what*officers were to be elected at the general election; audit required, therefore, legislative action to make it operatiye; and the question now is, whether *133the provisions of the act under consideration are sufficient for this- purpose. We think they are. The first section of Title 2, Article 1, of the act declares, “that general elections are such as are held at the same time in all the counties of the State, for the election of all or a part of the following officers: — Governor, Lieutenant Governor, Senators, Members of Assembly, Clerks of the Circuits, Sheriffs, Registers of Deeds, District Attorneys, State Superintendent, *Judges of Probate,*Clerks of the Board of Supervisors, Coroners, Secretary of State, Treasurer, Attorney General, Representatives in Congress, and Electors of President, and all other State and county officers not herein enumerated or otherwise provided for, and shall be held on the 'Juesday succeeding the first Monday of November in each year.” Now, what is this •■but re-ctaacting that part of the Constitution which regulates the holding of general elections, and specifying what of-■fleers, in addition to those named in the Constitution, should be elected at the general election 1 The Constitution had fixed the time of holding these elections, and provided that the Governor, and State officers should be elected at them, but left to the Legislature to determine what other officers should be also then elected; and this it has very clearly done by the section recited, unless the awkward insertion of the words, “ or a part,” renders .the whole section so uncertain and indefinite as to make it absolutely unintelligible, and therefore void. We cannot concede to these words this destructive potency. They are to be regarded as merely providing that such part of’ the enumerated officers as hold by an annual tenure should be elected at each general election, and that those of a longer tenure should be elected at such general 'elections *134as vacancies occurred; thus saving the Legislature from the apparent folly of attempting to provide for the annual election of Governor, Members of Congress, and others, as to the duration of whose offices, it had’ no authority. We think this the obvious meaning of the act, and the proper construction of it according to well established rules of construing statutes. But did the matter admit of a doubt in the first instance, that doubt should be regarded as removed by the action which has been had un-r der this act. While this Court will never allow its judgeT ments to be influenced by popular opinion, the united understanding and action of the whole State, in a matter of great public interest,, is. a guide that any tribunal may safely follow. It was by virtue of#the law now under consideration that our late general election was held: in that election all our citizens participated; voting for their favorite, candidates for Judges of Probate, Sheriffs,. Cor^, oners, and. other, officers; the right to elect whom der pended on the same statute, and whose election was obnoxious to the same objections; and yet it is believed that, of our forty thousand electors, not one refrained from voting for these officers on account of a belief, or a. suspicion, that their election was not authorized. Our Presidential Electors were chosen by virtue of this same provision; and yet has it occurred to any one that their votes ought to b.e rejected by Congress, and the State disfranchised, because they were not legally elected 1 We apprehend not. .

The other question, and perhaps the most important ona, is — Can a Judge of Probate be elected at, or within thirty days of a general election *1*

In deciding this question our only guide is. the Constitu.». *135t'ion; in construing which we are to,, be governed by the same general rules of interpretation which prevail in relation to statutes. Now who, in this connection, are meant as Judges'? Clearly those high judicial officers already mentioned, and whose election had been previously provided for in the same article — those officers, known in legal, as well as conpmon parlance as Judges.; and Judges of Probate, we conceive, are not of this number. It was argued, however, on1 the part of the respondent, that the words “a Judge or Judges,” are broad enough to include Judges of Probate, and that there being no express exception of them, we are bound to apply the designation “ Judge” to them, because the Constitution uses this word as a part of their official title. If this be so, it necessarily follows that all officers who are, for any purpose, made Judges by the Constitution, are Judges within the provision under consideration; a construction which would prohibit the election of Senators and Assemblymen, (who are *judges*of the election, of their own. members,) at a general election — a proposition that no one would probably venture to advance. Again, by a similar process of reasoning it might be contended, that the Judges of the Supreme Court, which after five years, the Legislature is authorized to establish, might be elected; at a general election; because, in the Constitution, they are not called Judges, but a Chief Justice and Associate Justices; and yet it ip presumed that no person can entertain such an idea.

We are, there, of opinion that the relator was duly elee? ted Judge of Probate of Racine County, and that he is enr titled to the office. A peremptory mandamus is awarded, accordingly.