The object of tins proceeding is to obtain possession of the office of treasurer of Dane county. The *362relator claims the office by virtue of an election, and it is admitted that he was duly elected to the office at the general election, held on Tuesday succeeding the first Monday in November, 1849, if, by the laws then in force, a lawful election of county treasurer could take place. It is further admitted that the relator took the proper oath and executed the bond required by law, within the time prescribed by section 138 of chapter 10 of the Revised Statutes, and further, that he demanded possession of the books and papers belonging to the office, before commencing this proceeding.
The claim of the relator is resisted by the respondent, who was elected to the office at the general election.in 1848, on the ground that there was no law in force authorizing an election of county treasurers at the time when the relator claims to have been elected.
Various acts of the legislature of the territory and state of Wisconsin, and the constitution of the state, were referred to in the argument, all of which I will notice. The act of the legislature of the territory which took effect in July, 1839 (Stat. Wis. Ter.,' p. 97), provided for the.election of county treasurers annually. The same act prescribed them powers and duties and fixed their compensation. The next act bearing upon the subject was passed by the legislature of the territory, in 1841. This act does not alter the act of 1839, except to provide that the term of service of the county treasurers, when in office, should expire on the first Monday of January then next, and that the term of service of those afterwards to be elected should commence on the first Monday in January in each year. Sess. Laws, 1841, p. 33. The next is an act passed in 1841, in relation to township and county government. This act only applied to those counties which adopted it, and, like the act of 1839, provided for the annual election of county treasurers. Town act, p. 72. The next act bearing upon the subject was passed in 1842. Sess. Laws, 1842, p. 43. This act merely declares the county officers, *363elected at the preceding general election, to be in office from the first Monday in January, 1842, and provides that the tenure of office of those officers, elected or to be elected in pursuance of the provisions of the act in relation to township and county government, should not be affected by it. These are all the acts of the legislature of the territory, bearing upon the subject, which I have been able to find; and, taken together, they provide for the election of county treasurers annually, and for their going into office on the first Monday of January in each year. They prescribe the powers and duties of those officers and fix their compensation. By virtue of their provisions county treasurers were elected, and held their offices until the constitution of the state was adopted in 1848.
That instrument contains a provision upon the subject of county officers, which, in connection with subsequent acts of the legislature, the respondent contends, renders the election of the relator illegal The clause of the constitution referred to, is the seventh section, of the schedule, and is as follows : “ All county, precinct and township officers shall continue to hold their respective offices, unless removed by competent authorily, until the legislature shall, in conformity with the provisions of this constitution, provide for the holding of elections to fill such offices respectively.” The counsel for the respondent contended, in the argument of the case, that this provision had the effect to repeal the acts of the legislature of the territory, upon the subject of county treasurers, or at least to create a new tenure for the office. I am clearly of opinion that it cannot have the effect to repeal the acts of the legislature in question.
The state constitution repealed none of the laws of the territory, except such as were repugnant to it, and this clause of the constitution, and the acts of the legislature referred to, may well stand together; 'the latter modified only so far as the term of service of those who held the offices, at the time when the constitution was adopted, were concerned. To *364admit that the constitution repealed^ those acts, would be to hold that, after the adoption of the former, there was no law in existence, which defined the powers with which these officers were clothed, or the duties which they were to discharge, and I cannot think that by any just rule of construction, such an effect can be given to it. Nor do I think that a new tenure was created for these offices.
The provision in the constitution applies only to those officers who were in office at the time of its adoption, and does not establish any tenure for those who were afterwards elected. Those then in office were to hold then offices until the legislature made provision for filling them by election; but in no other respect did the constitution interfere with the tenure of these offices, as established by the previous acts of the legislatura It may well be imagined that the framers of the constitution supposed that when the legislature provided for filling these offices by election, they would also specify the term the incumbents were to serve. If this had been done, no difficulty would have arisen, but it was omitted. The provision for filling these offices was made by an act passed at the first session of thb legislature after the constitution was adopted; by virtue of it the respondent was elected; and if-the laws of the territory in relation to the office were not repealed, nor the tenure of the office changed by the constitution, except so far as those persons were concerned who filled the offices when the constitution went into effect, it follows that he was elected for the term as fixed by the laws of the territory which we have seen was one year only.
There remains but one other subject of inquiry, and that is, whether any law was in existence at the time the relator claims to have been elected by which his election was authorized. There can be no doubt on the subject. The legislature passed an act which went into effect on the first day of May, 1849, which provides that there shall be chosen at the general election in each year, so many of the officers named *365in tbe act “as are by law to be elected in such year,” and which names county treasurers among the number. Rev. Stat. ch. 6, § 3.
Now, if the respondent was elected for one year, the election of his successor was proper and necessary at the general election in 1849. It can make no difference that the legislature passed an act which took effect on the first day of May, 1849, providing that county treasurers shall hold their offices for two years, as this provision was .clearly intended to apply only to those elected after the law went into effect. Nor can section 85, of chapter 6, of the Revised Statutes, which was referred to 'in the argument for the respondent, at all affect the question. That provides for the election of all county officers whose election is not otherwise specially provided for at the general election in 1850, and at the general election in every second year afterwards. Now, if the view I have taken of the subject is correct, the election of county treasurers was provided for at the general election in 1849, by section 3, of chapter 6, of the Revised Statutes, which went into effect on the first day of lytay, 1849, and as the legislature have provided by an act, which also went into effect on the first day of May, 1848, that county treasurers shall hold their offices for two years, it follows that no election of county treasurers can take place until the year 1851, except for the purpose of filling vacancies. It necessarily follows, from the view I have taken of the subject, that the relator was rightfully elected, for the term fixed by law, at the time of his election, which is two years.