This is a proceeding.to contest the election and determine the right to the office of county superintendent of schools of Morton county. There were but two candidates for the office. The plaintiff received 2,318 votes, and the defendant, 3,215 votes. A motion to dismiss was filed and treated as a demurrer.
The petition alleges that the defendant has not had two years’ successful experience in teaching, and has not taught school for two years, and has not had two years’ experience in teaching schools, and is therefore ineligible to hold the office of county superintendent under the provisions of § 1122 of the Compiled Laws of 1913. Section 1122 of the Compiled Laws of 1913 provides that “no person shall be deemed qualified for the office of county superintendent in any county, who is not a graduate of some reputable normal school or higher institution of learning, or does not hold at least a second grade professional certificate, and who has not had at least two years’ successful experience in teaching, one year of which shall have been in this state.”
We refrain from discussing the question of the qualification and title of the defendant, as it is not necessarily before us. Even if disqualified, the controlling question of the right of the plaintiff to the office remains and must be met. Specifically stated it is, whether one who has received less than the majority of the votes which' are cast *253at an election is elected to such office so that he can claim the same when the voters knowing of the disqualification of his opponent chose to elect the latter by a majority of the votes cast.
We are satisfied that, though the election was a nullity, the plaintiff and appellant is not entitled to the office in question, and that, therefore, the 'trial judge was justified in dismissing the complaint.
The question before us has been the subject of no little discussion. It seems to be generally conceded that, where the voters do not know of the disqualification, the votes cast for the disqualified candidate cannot be credited to the defeated party, and that the whole election will be deemed a nullity. The only doubt in the minds of the writers has been whether this is true when the disqualification is known. The English rule and the rule of Indiana seems to be that where the disqualification is known the party receiving the minority vote will be entitled to the office, and this on the theory that the voters have wilfully thrown away their votes, and that the office should not go begging on that account.
The weight of American authority, both legislative and judicial, seems to be that no such intention to throw away the vote can be imputed, but that rather the vote for the disqualified candidate must be considered as a protest against the qualified person, and especially should this be the case where there are only two candidates. The authorities lay stress, indeed, upon the proposition that government by the majority seems to be an American maxim, and that no one should be deemed elected against the protest of that majority. It is true that many of the authorities are purely legislative. It is also true that perhaps in no adjudicated case has the question been fairly presented. The dicta of the courts, however, and the positive rulings of the legislative tribunals, are almost unanimous on the proposition that, where there is no statute declaring votes cast for ineligible candidates to be absolutely void, no right to the office can be presumed in the defeated candidate. We hold, therefore, that the plaintiff was not elected to the office. See McCrary, Elections, 4th ed. § 327; Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301; Throop, Pub. Off. § 163; Dillon, Mun. Corp. 5th ed. § 373; Saunders v. Haynes, 13 Cal. 145; State ex rel. Dunning v. Giles, 1 Chand. (Wis.) 112, 52 Am. Dec. 149; State ex rel. Off v. Smith, 14 Wis. 497. Such being the case, the judgment of the District Court is affirmed.