The questions to be decided in this matter are, first, whether a person holding the ofiice of sheriff at the adoption of the constitution was eligible to that office, haying received the highest number of votes at the late general election ? And if not, second, whether the person who received the next highest number of votes was elected ?
As 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 Dunning, the relator, were both candidates, at the late general election, for the office of sheriff of Dane county. Matts received 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, if 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 *170right, and to which all owed a common duly and allegiance ; and I 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 re-election of sheriffs, contained in the constitution itself, applies to those persons who happened to hold that office at the time of its adoption, or only 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 perpetuate or modify any of the political rights of the inhabitants of jhe territory, for, properly speaking, they had none ; but it created those rights for the citizens of the state — for all 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 embar*171rassment 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 prevent it, by enacting that all such votes shall be deemed void, and not to be* counted.
The motion for a mandamus is denied.