114 Wis. 402 | Wis. | 1902
Tbe title of tbe respondent to tbe office be occupies is assailed on tbe ground that bis appointment thereto by tbe governor, to bold for tbe residue of tbe unexpired term of bis deceased predecessor, is invalid, for tbe reason that it, and tbe only act of legislature authorizing it, are prohibited by tbe provision of sec. 2, art. VII, of tbe constitution, requiring that:
“Tbe legislature shall provide as well for tbe election of judges of tbe municipal courts as of tbe judges of inferior courts, by tbe qualified electors of tbe respective jurisdictions. Tbe term of office of the judges of tbe said municipal and inferior courts shall not be longer than that of tbe judges-of the circuit "courts”
Tbe act of legislature under wbicb tbe governor acted in this appointment is sec. 1, cb. 24, Laws d¥ 1889, providing that in case of vacancy in tbe office of judge of tbe superior court of Milwaukee county “tbe governor shall appoint a judge of said superior court, and tbe person so appointed shall bold for tbe residue ... of tbe term.” Hence the power of tbe legislature, if it bas any, bas been exercised to authorize tbe appointment in tbe present case. Tbe question thus presented is an interesting one. It may not be easy to justify tbe appointment of a judge for substantially a whole term, or, indeed, for any part thereof longer than is
Relator’s only claim to the office is based upon election thereto, claimed to result from the fact that certain electors of Milwaukee deposited in certain ballot boxes ballots- designating him as their choice for the office in question, and that they exceeded in number those who cast bailóte for any one else for that office. Under our form of government, an election, to have effect as declaring the will of the people, is a creature of law. Unless authorized by law as such, the ballots constitute merely voluntary expressions of individual opinions. It is true that, when an election is authorized at specified time and place, the votes then cast may bind the community, though the exact method of calling, noticing, or conducting the election may have been disobeyed (State ex rel. Peacock v. Orvis, 20 Wis. 235; State ex rel. Bruce v. Davidson, 32 Wis. 114, 120), but only when, in advance, the law has given such authority (People ex rel. Fuller v. Palmer, 91 Mich. 283, 288; Brewer v. Davis (Tenn.) 9 Humph. 208). Appellant has not succeeded in pointing out any provision of law authorizing an election for the office of judge of .the superior court of Milwaukee county on April
By the Court. — Judgment affirmed.