#### State of Wisconsin, Ex Rel. Philo Dunning vs. Sylvester Giles, Clerk of the Board of Supervisors of Dane Co.

The framers of the Constitution, in adopting temporarily the Territorial Laws, then extant, did so that no inconvenience might arise-in the change of government from a Territory to a State: But by temporary adoption of such laws, it was not intended to perpetuate the political disabilities of the *inhabitants*of the *Territory*to the *citizens*of the State.

Tho prohibition contained in the act of 1843, against Sheriffs holding the office for more than two consecutive years, dpes not apply to persons elected'- at the first election authorized by the Constitution, though the samo persons hold that office at the time the Constitution took effect.

The inhibition of the re-eleetion of Sheriffs, contained in the Consti-, tution, applies to those who shall be elected; after the adoption of tha-t instrument, and not those who wore in office under the Territorial Laws at the time of its adoption.

Under the Constitution a new era commenced, free from disabilities and Territorial restraints; and all the citizens of the.Territory became citizens of the State, enfranchised from all disabilities which, procodod, and only subject to such as the Constitution affixed.

The more ineligibility ofia person to hold a particular office, and who receives the greatest number of votes, such votes are not a mere nullity, hut should be counted by the canvassers. A contestant for the samo office, and receiving a lesser number of votes, though eligible, cannot he regarded as elected, and does not thereby become invested with- the right to the office.

This was an application for a mandamus as against; Giles, the. Clerk of the Board of Supervisors Qf Dape. Qo.,. *113who withheld from the relator a certificate of his election, for that county, as Sheriff, at the general election in 1848, and who gave to Peter W. Matts, a contestant candidate for the same office, a certificate of election as Sheriff. Dunning and Matts were both candidates fit the election for the office of Sheriff. Matts was the Sheriff at the time of the election, and received the greatest number of votes of any candidate, and Dunning, the relator, received the next highest number of votes. This was the first election held under the Constitution in 1848.

Two questions arose in the case.

1st. Whether the person holding the office of Sheriff at *the time of the adoption of the Constitution,*was eligible-to that office, at the next ensuing election *1*

2d. If the then Sheriff was ineligible, whether the person who, at that election received the next highest number of votes, could be considered as entitled to the office 1

There was no dispute in regard to the facts set out by the relator.

*Catlin Sf Jlbbott 8f G. B. Smith,*for the Relator.

*Clark fy Collins,*for Respondent.

On the part of the relator, it was insisted that the limitation of the duration of the office of Sheriff, and his ineligibility to office for a consecutive term, as provided by the territorial legislative act of 1844, applied to Matts, the former Sheriff. That thq act referred to, being in consonance with the provision, pf the Constitution in relation to the limit of the office, it was in force at the time of the adoption of the Constitution, and that, at the first election under the Constitution, the incumbent was ineli*114gible by .reason of the prohibition of the act.

2d. If by the act of 1843, Matts was ineligible to the office, then all votes cast by the electors for him were a nullity, and should be no further regarded, as respects the right of others, than blank ballots, and should not have been counted or canvassed, but for the purpose of being rejected.

The votes thus cast, could not, and ought not to be estimated, to the defeat or prejudice of an eligible candidate for the office. That the electors were bound to know, and did know, the disability of Matts, and that the act of voting for him was a nullity. That Matts, being utterly ineligible, has no legal right or capacity to contest the election of the relator, and that any pretentions he may set up, (the disability being admitted), cannot be entertained by the Court, in determining, who is the officer elected.

On the part of the respondent, it was urged, that the Constitution, and the act based upon its provisions, could not be retro-active in . their operations to disturb vested rights, previously acquired; and that the effect of the Constitution, and the act passed under it, did operate in prejudice of the rights of Matts.

That Matts having been elected under the provision of the act of 1843, and being still in office, and discharging the functions of his office, whether upon the principle of having been voted for, and having received the greatest number of votes at the late election, under the Constitution or otherwise, he is still the Sheriff under the prin-cipie of holding over, recognized by the Statute; and this upon the principle (whether he was eligible or not,) that the claimant of that office, did not have a majority of the *115votes cast at the election at which he claims to have been elected, and therefore can set up no claim here as against Matts.

That though Matts should be ousted from his office, yet the Clerk of the Board of Supervisors cannot again perform the function of issuing a new certificate. He has already exhausted his functions in that particular.

That Sheriffs in office at the time the constitution took effect, had an equal right with all others to be elected to that office, notwithstanding the provisions of the act of 1843. The prior holding the office under the Statute, did not work a prohibition to hold the same under the new government established by the Constitution. By it, prior officers became *functus officio,*but not disqualified to become recipients, of the same office previously held under a different jurisdiction. In other words, all previous disabilities were wiped out by the new organization.

*By the Court.*

Stow, C. J.

The questions to be decided in this matter are, first, whether a person holding the office of Sheriff at the adoption of the Constitution, was eligible to that office, having received the highest number of votes, at the late general election 1 And if not, second, whether the person who received the next highest number of votes was elected I

4-S to the first of these questions, the Court is as nearly as can be, equally divided — the opinion now delivered being that of a constitutional majority only. The Judges of the first and second Circuits dissenting. As, to the second question there is no difference of opinion.

Peter W. Matts, the defendant in interest, and Dun-uing, the relator, were both candidates at the late general election for the office of Sheriff of Dane County. Matts *116received the highest number of votes of any candidate, and Dunning the next highest; and Matts was undoubtedly elected, unless rendered ineligible, either by the second section of the seventh article of the Constitution, which declares, “ that Sheriffs shall hold no other office, and be ineligible for two years next succeeding the termination of their offices;” or by the similar provision of the Territorial law, which it is said, not being repugnant to the Constitution, was continued in force by the second section of the constitutional schedule. The assumption that this provision of the old Statute is not repugnant to the Constitution, ii warranted, would dispose of this branch of the case; but I think it is unauthorized.

The Constitution, in adopting temporarily the old Territorial laws, did so “ that no inconvenience might arise by reason of a change of government;” at the same time taking care that only those laws which were not repugnant to the Constitution should have force. It adopted, for present purposes, the general municipal laws which it found in being, but regulated for itself its own political system. On its face it purports to be, and in fact was, the work of the people — of the whole people — in which all had an equal and common interest and right, and to which, all owed a common duty and allegiance; and 1 cannot believe that a Constitution thus broad and catholic, ever meant, by adopting an old provincial law, to extend the political disabilities of certain *inhabitants*of the Territory to the *citizens*of the State. I therefore regard this provision of the Territorial Statute as repugnant to the Constitution, and consequently not adopted by it.

It remains to be seen, whether the inhibition of the reelection of Sheriffs contained in the Constitution itself. *117applies to those persons who happened to hold that office at the time of its adoption, or only to such as should be elected under it. I think it applicable to the latter only —that it has reference to its own officers, and not to the Territorial incumbents. The Constitution did not perpe~ tuate or modify any of the political rights of the *inhabit tants*of the Territory, for, properly speaking, they had none; but it created those rights for .the *citizens*of its State — for all its citizens — without preference or exclusion. All were alike its framers, and were equally enfranchised by it; and it seems to me harsh and invidious, to say that some five-and-twenty of its citizens should be excluded from any of its privileges, by the circumstance of their happening to hold, at the time of its adoption, a particular office under the expiring government.

Such being the opinion of the Court, it is unnecessary to pass upon the second question — whether in the event of the person receiving the highest number of votes being ineligible, the person receiving the next highest number, is elected. But as the question was fully argued, and as it is one that may arise again, it is proper to say, that we are all of the opinion that the mere ineligibility of a candidate does not, as the law now is, render void the votes cast for him; that such votes should not be rejected, but should be counted by the canvassers, and that in the event of such ineligible person having the highest number of votes, the person having the next highest number is not thereby elected. If any public embarrassment is apprehended from this, such as that an office may remain indefinitely vacant, by reason of a majority of the electors obstinately persisting in voting for an ineligible person,, it is within the undoubted power of the Legislature' to *118prevent it, by enacting that all such votes shall be deemed void, and not to, be counted.

The motion for a mandamus is denied.