The real issue in an action of quo warranto to test the right of an elective office is, Who received a plurality of the legal votes actually cast at the election? State ex rel. Swenson v. Norton, 46 Wis. 332. Ballots offered, but not received by the inspectors of election, can never be made available for either candidate. Hartt v. Harvey, 19 How. Pr. 245; Cooley, Const. Lim. (6th ed.), 781; Mechem, Pub. Off. § 237. Much less where the intention is not formulated into a ballot, but rests in intention or desire merely, can it be counted for a vote.
“The exclusion of legal votes — not fraudulently, but through error in judgment — will not defeat an election. It is an error which there is no mode of correcting, even by the aid of the courts, since it cannot be known with certainty afterwards how the excluded electors would have voted; and it is obvious that it would be dangerous to receive and rely upon their subsequent statements as to their intentions, after it is ascertained precisely what effect their votes would have had upon the result. . . . An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters have been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but, as it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future.” Cooley, Const. Lim., supra.
*180It is not questioned that the- election was honestly conducted. No fraud is claimed in the exclusion of voters. It was error of judgment only. Nor is it claimed that any of the votes cast were illegal. Nor is it disputed that the defendant received a plurality of the votes actually cast. The election should stand.
By the Court— The order of the circuit court is affirmed: