State ex rel. Schommer v. Vandenberg

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 [630] electors 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.