Bancroft to your predecessor in office under date of April 23, 1912, holding this law to be constitutional. Opinions of Attorney-General, 1912, p. 139.

Upon a careful examination and consideration of this opinion, I quite concur therewith and am satisfied that there is no such substantial question of the correctness thereof as would justify a re-examination of the question at this time. Upon the considerations and for the reasons stated in my opinion to you under date of the 10th inst.* with respect to the Life Fund Law, I decline to coöperate in the initiation of a court action to challenge the validity of this law. The appropriation therein authorized is, as shown in the opinion above referred to, for a public purpose and a legitimate purpose in behalf of which taxes may be levied and collected. Nor is there any ground for the apprehension which you express that this law may result in a confusion or diversion of any constitutional trust funds, such as dealt with in the Forestry Case. At least, should there be any such result, it would not be chargeable to the law, but to failure to properly comply therewith, and would be no consideration affecting in any way the validity of the law. True, the teachers' pension and retirement fund is in a sense a trust fund for the purposes of that statute, but it is a statutory and not a constitutional fund. You are not, however, alarmed, I take it, by fear of any diversion from this fund, but rather by the diversion of moneys from the "school fund" to this fund, under sec. 460-10 Stats., the amount of which you state to be $65,000 per year.

It is, of course, error to speak of the source of this appropriation to the teachers' pension and retirement fund as the "school fund" meaning the constitutional "common school fund." The fund referred to in the words of sec. 460-10 is "that portion of the common school fund known as the seven-tenths mill tax, or from any other general state tax levied for the support of said schools." The specific fund referred to is, of course, that raised by the seven-tenths mill tax authorized, levied and collected solely by virtue of statutes enacted by the legislature, secs. 1072a, 1072b, Stats. 1913, and hence entirely within the power of the legislature to divert to any legitimate public purpose in behalf of which

*Page 289 of this volume.

taxes may be raised or, indeed, to abolish altogether. Sec. 460-10 is to be construed simply as amendatory to that extent of that provision of sec. 1072a which provides that the seven-tenths mill tax receipts shall be disbursed in the manner provided by law for the disbursement of the common school fund income.

Elections Liquor License-Failure to comply with statutory regulations concerning elections does not invalidate the election unless such irregularity affects the result of the election.

April 13, 1915.

CHARLES J. SUMNER,

District Attorney,

Delavan, Wisconsin.

I am in receipt of your letter of the 10th inst., in which you inquire as to the legality of the vote on the question of license or no license this spring election.

You state that the ballots cast on this question were deposited in a separate box by the election inspectors, but that when the polls were closed and the box opened it was found to contain a far greater number of ballots than the total number cast at the election; that the excess ballots were supposed by the election officials to be ballots cast on a similar issue voted on the year previous, and at which time the ballots "For License" were considerably in the majority; that one of the election officials gathered up a large number of the ballots and destroyed them, claiming that he could distinguish the ballots cast this year from those cast last year, as the ballots cast this year were slightly larger in size than those cast last year; that after the ballots had been sorted and those claimed to have been cast last year destroyed, those remaining were counted and showed a majority "Against License" of 23, and they were so canvassed by the inspectors of election.

You say that it is apparent from this statement that sec. 64, Stats., was not complied with by the election officials, and there is a doubt as to the legality of this election; that the president of the village and the clerk have, so far, refused to

file and record the certificate of the inspectors of election until they have received legal advice. You inquire whether the election was legal on the license question.

Sec. 64, Stats., provides as follows:

"The inspectors of election, or one of them, immediately before proclamation is made of the opening of the polls, shall open the ballot boxes in the presence of the people there assembled, and turn them upside down, so as to empty them of everything that may be in them, and lock them; and they shall not be reopened, except as hereinafter provided in case of adjournments, until the close of the polls for the purpose of counting the ballots therein.'

It is true that it seems very clear under the statement of facts that this provision of our statutes was not complied with, or they would not have found in the ballot box the ballots that were cast at the previous election. The question is, does the fact that this statute was not complied with invalidate the election?

In 10 Am. & Ency. of Law (2d ed.), p. 690, the following rule is laid down as to the effect of errors and irregularities at elections:

"By the weight of authority a failure to comply with the provisions of the law in conducting an election, if the error or irregularity is in matter of substance, will render the election void, or be ground for rejecting the returns from the particular precinct. But mere irregularities in the conduct of an election which do not deprive a voter of his vote, nor admit a disqualified person to vote, nor in any way affect the result, do not render an election or the votes at a particular precinct invalid. It is a general rule that voters are not to be deprived of their votes by the mistake or fraud of the election officers."

Our court in the case of State v. Horan, 85 Wis. 94, 96, laid down the following rule:

"It is a rule, well grounded in justice and reason and well established by authority and precedent, that the voter shall not be deprived of his rights as an elector, either by fraud or the mistake of the election officers, if it is possible to prevent it."

Under the facts stated in your letter it seems the election officials were satisfied that the ballots which they destroyed

were old ballots that had been in the ballot box since last year's election, and that they were not cast at this spring election. I have no doubt that they could distinguish the old ballots from the new ones, especially in view of the fact that the old ballots were of a smaller size than this year's ballots.

It follows that the irregularity cannot in any way affect the result of the election, and under the rule above laid down it necessarily follows that the irregularity does not vitiate the result of the election. You are therefore advised that the said election on the license question is legal and binding upon the village in question.

Public Officers-County Judge-Marriage-Fees County judge must turn in fee collected for making order authorizing marriages within five day limit.

CHARLES KIRWAN,

District Attorney,

Ladysmith, Wis.

April 14, 1915.

I have your communication of the 12th inst., in which you inquire whether the county judge may receive the per diem provided for in subsec. 2, sec. 2454, Stats., when he makes an order upon proper application authorizing a marriage without delay of five days after the issuing of said license.

Said subsec. 2, sec. 2451, provides as follows:

"The judge of any county court which is not vested with civil jurisdiction shall be entitled to receive five dollars per day, to be paid from the county treasury, for each day he shall be actually engaged in the examination of any person upon a criminal charge, or engaged upon any other matter, not appertaining to probate business, compensation for which is not otherwise provided."

Sec. 2339g, after authorizing the county judge to make an order authorizing the marriage of parties under certain conditions without the delay of five days after the issuing of such license, provides as follows:

"The judge or court making such order shall not receive. any compensation therefor from the county, except that

where the order is made by a county judge or county court, the judge may charge the party applying for such order the sum of two dollars, which sum shall be paid into the county treasury for the use of the county."

The last clause of said sentence, "which sum shall be paid into the county treasury for the use of the county," was added by ch. 324 and ch. 699, Laws of 1913. Prior to the enactment of ch. 305, Laws of 1903, there was no provision whatever for a fee.

You will note that here is an express provision that the judge making the order shall not receive any compensation therefor from the county.

I believe this provision is decisive of the matter and supersedes the provision in subsec. 2, sec. 2454, providing a per diem fee of $5.00 per day for matters not appertaining to probate business when transacted by the county judge.

It seems it was the intention of the law makers that the county judge should perform these services without any additional compensation therefor other than his regular salary.

You are, therefore, advised that the county judge cannot receive the per diem allowance provided for under subsec. 2, sec. 2454, Stats., for making an order authorizing a marriage without the expiration of five days after the issuing of the license.

Constitutional Law-Ex Post Facto Law --EducationMunicipal Corporations-Legislature may not pass a law requiring one city to pay tuition fees to another for past services.

April 15, 1915.

HON. LOUIS A. ARNOLD,

State Senator.

I have your inquiry of the 13th inst. in which you state the facts and your questions as follows:

"Prior to October, 1913, Milwaukee boys and girls who were working in the city of West Allis attended the continuation school in that city. At this time there was a continuation school in operation in the city of Milwaukee. For