(concurring). The sole question presented in the action brought in the circuit' court was one relating to the qualifications of the relator, Mr. Barber, to serve as a member of the state senate.
The language, “Each house shall be the judge of the elections, returns and qualifications of its own members,” found in sec. 7, art. IV, Const., expressly makes the state senate the proper tribunal to determine all questions concerning Mr. Barber’s qualifications for service in the office in question. It necessarily excludes the idea of any other tribunal passing on such a question, for, plainly, a decision *483by the judiciary one way or the other, on such question as was presented to the circuit court in this matter would not in any way or to the slightest degree bind or control the senate in its conclusive determination of the same question. Therefore the decision by the circuit court or by this court that Mr. Barber did not or did possess the proper qualifications would be an idle ceremony and a futile proceeding. This alone furnishes sufficient reason why the writ should issue as it has been allowed. I do not think we should seek further for reasons or wander beyond this ample and conclusive field.
Such constitutional provisions have been expressly held to be all-sufficient grounds for denying judicial relief in situations similar to the one here presented. Allen v. Lelande, 164 Cal. 56, 127 Pac. 643; Att’y Gen. ex rel. Beers v. Board of Canvassers, 155 Mich. 44, 118 N. W. 584; Sutherland v. Miller, 79 W. Va. 796, 91 S. E. 993, L. R. A. 1917D, 1040, 1046, and note on p. 1046; State ex rel. Boulware v. Porter, 55 Mont. 471, 178 Pac. 832; Covington v. Buffett, 90 Md. 569, 45 Atl. 204; Britt v. Board of Canvassers, 172 N. C. 797, 802, 90 S. E. 1005. The wide scope of such conclusive control is indicated in the case of Dinan v. Swig, 223 Mass. 516, 112 N. E. 91.
The jurisdiction of the legislature to determine just such a question has been repeatedly recognized by this court as exclusive. State ex rel. McDill v. Board of State Canvassers, 36 Wis. 498, 505; State ex rel. Anderton v. Kempf, 69 Wis. 470, 475, 34 N. W. 226; State ex rel. Kustermann v. Board of State Canvassers, 145 Wis. 294, 311, 315, 324, 130 N. W. 489, citing many, cases.
Just what is now declared cannot be done by the judiciary was nevertheless done in State ex rel. Bancroft v. Frear, 144 Wis. 79, 84, 128 N. W. 1068, where the secretary of state was directed to place the relator’s name on the official ballot as the Republican candidate for attorney general as against the avowed intention of such official to insert the *484name of another who claimed a right to succeed a candidate who died prior to the primary but whose name received more votes than did the relator theie. This court there determined who was eligible as the party candidate, and did not relegate the question to a post-election contest.
I am not at present prepared to join in saying that the court should in no case intervene to prevent a proposed candidate for an office, other than member of the legislature, from having his name go upon a ballot with the particular advantages that might, and presumably do, accrue from being upon such ticket under certain specific party designation, and thereby creating a disadvantage to some other person seeking, and perhaps legally entitled, to have his own name substituted in such place.
For instance, sec. 12, aid. IV, Const., provides: “No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected.” The opinion as now written forecloses for the future any right to appeal to the courts to prevent a then present member of the legislature from having his name placed in a certain party column for an office created during his term as legislator. The constitutional prohibition is against being elected to such office. If it be a foregone conclusion that votes for him when cast are null and void, I can see no good reason why the court might not properly say that his name shall not usurp a position, and consequent advantage, bn a ballot that legally belongs to someone else who properly appeals to the coúrt for protection of such right and advantage, such as was done in State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N. W. 1068. To have one’s name go on an official ballot and in the proper place is recognized as a right entitled to protection by the courts. State ex rel. Rinder v. Goff, 129 Wis. 668, *485683, 109 N. W. 628, 9 L. R. A. n. s. 916; State ex rel. Cook v. Houser, 122 Wis. 534, 557, 100 N. W. 964; Withey v. Board of State Canvassers, 194 Mich. 564, 161 N. W. 780.
Although agreeing with the result here reached, I cannot agree with the reasons for it as stated in the opinion.
I am authorized to state that Mr. Justice Doerfler agrees with this concurring opinion.