CHAPTER VI.

INELIGIBLE CANDIDATES.

The authorities are somewhat in conflict as to the effect to be given, in determining the result of an election, to votes cast for an ineligible candidate. In Wisconsin it is held unqualifiedly that while votes cast for an ineligible candidate can avail him nothing whatever, they must, nevertheless, be taken account of in canvassing the ballots, and if they exceed in number those cast for the next highest candidate, they operate to defeat him 1 But in Indiana the opposite doctrine prevails, and it is there held that votes cast for a candidate ineligible by reason of a consitutional provision, and of whose ineligibility the voters have knowledge, either by actual or constructive notice, are to be regarded as if not cast at

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1. State of Wisconsin v. Giles, 1 Chandler, (Wis.) 112; State v. Smith, 14 Wisconsin, 497. In the case first cited, the court said: "We are all of the opinion that the mere ineligibility of a candidate, does not, as the law now is, render void the votes cast for him; that such votes should not be rejected, but should be counted by the canvassers, and that in the event of such ineligible person having the highest number of votes, the person having the next highest number is not thereby elected. If any public embarrassment is apprehended from this, such as that an office may remain indefinitely vacant, by reason of a majority of the voters persisting in voting for an ineligible person, it is within the undoubted power of the legislature to prevent it, by enacting that all such votes shall be deemed void, and not to be counted."

all, and the eligible candidate receiving the greatest number of legal votes is elected and entitled to the office.1

It is noticeable that in both the Wisconsin decisions the rule is barely asserted as the law, a circumstance which is alluded to by the Indiana court, which states fully the reasons upon which its conclusions are founded. In applying this doctrine to cases in which the disqualification arises from a constitutional prohibition the court intimates that it is questionable whether the same rule would govern in cases of statutory disqualification.

In State v. Smith, 14 Wis., 497, an alien, who had never declared his intention to become a citizen, and was not, therefore, a qualified elector, was held ineligible for the office of sheriff, for which he had been a candidate at the election and received a majority of the votes cast, and as to the question whether the person receiving the next highest number of votes was entitled to the office, the court referred to and reaffirmed the doctrine in 1 Chandler, supra.

In Gulick v. New, the relator claimed the office of sheriff on the ground that the opposing candidate, who had received a majority of the votes cast, was not eligible. The fact of ineligibility being established, the court adjudged the relator entitled to the office.2

1. Gulick v. New, 14 Iudiana, 93; Price v. Baker, 41 Indiana, 572. 2. It being conceded that the votes cast for Wallace (the opposing candidate) were powerless and fruitless in effecting the main end aimed at, that is, in electing him, we are still asked to decide that they were so far effective as to prevent the election of any other person; that they were, so far as affirmative results were involved, thrown away, but that negatively

On the question whether the fact that the candidate held a judicial office (the cause of ineligibility) under a public act, was notice of the ineligibility to the citizens, the court held that it was, (Grant on Corp., 107; Cushing on Law of Legislative Assemblies, 66, 67; Biddle v. Willard, they were operative. We are reminded that, in our form of government, the majority should rule, and that if the course indicated is not followed, a majority of the voters may be disfranchised, their voice disregarded and their rights trampled under foot, and the choice of a minority listened to. True, by the constitution and laws of this state, the voice of a majority controls our elections; but that voice must be constitutionally and legally expressed. Even a majority should not nullify a provision of the constitution, or be permitted, at will, to disregard the law. In this is the strength and beauty of our institutions. Suppose a majority should persist in voting for a man totally ineligible to take the office of sheriff, what would be the result? As he could not hold the office, either the one capable of holding, receiving the next highest vote, would, as contended by the appellant, be entitled to the office, or there would be a vacancy, as contended by the appellee. Suppose the proceedings should result in creating a vacancy, then it would remain greatly to the detriment of public and private interests, or it would, under the statute, have to be filled by the action and choice of, perhaps, two men, which might be, possibly, in direct conflict with the choice of that majority in every respect. Then, while it is true that the votes of a majority should rule, the tenable ground appears to be that if the majority should vote for one wholly incapable of taking the of fice, having notice of such incapacity, or should perversely refuse or negligently fail, to express their choice, those, although a minority, who should legitimately choose one eligible to the position, should be heeded. Suppose that, eight years ago, at the first election under our new constitution, when nearly all the offices in the state were to be filled, a majority of the voters in the state, and in the several districts and counties, had voted for persons wholly ineligible to fill the several offices, would those offices ♦ have thereby remained vacant? Could that majority, by persevering in that course, have continued the anarchy that might have resulted from such action? Or, rather, is it not the true theory that those who act in accordance with the constitution and the law, should control even a majority who may fail so to act? Whether the same reasoning would hold good where the ineligibility should arise out of some cause other than a constitutional prohibition is a question we are not now called upon to decide."

10 Ind., 62, p. 68;) and concluded: "The votes then given, or attempted to be cast for him for that office, were ineffectual for any purpose. They had no more effect, in a legal point of view, than if they had been. cast for a dead man, or for one who never had a being."

In Price v. Baker, 41 Indiana, 572, decided in 1873, the doctrine in Gulick v. New was re-affirmed as "a principle of law well settled in the state." It was strictly confined in its application to "those cases only where different persons are candidates for the same office, and" as having "no application to cases where two or more persons are candidates at the same election for different offices. Accordingly, although the office of one prison director is the same as that of another prison director, except it may be with reference to the time of election and the term for which he is to serve, still when one has been elected to succeed a designated person in such office, he cannot act as the successor of another in the same body, on the ground that the person who has been elected to succeed the other is ineligible."

In New York, the court of appeals, while holding that under certain circumstances a candidate next highest to one who is ineligible, may be entitled to the office, practically rejects the doctrine of constructive notice to the voter. The next highest eligible candidate, it is held, can only be deemed entitled to the office when the fact is so notorious as to charge those who cast their ballots for an ineligible candidate with actual notice and knowledge of the law. If a majority vote, through ignorance

of the law or the fact, for a person ineligible to the office, the New York rule is that their votes are not nullities, but the election is a failure. A minority may elect to an office, but only when the majority decline to vote, or, when voting, they do so for a person legally disqualified, under circumstances justifying the conclusion that they purposely intended to throw away their votes. The rule of the court is thus stated: "The existence of the fact which disqualifies, and of the law which makes that fact operate to disqualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote therewith indicates an intent to waste it. The knowledge must be such, or the notice brought so home, as to imply a willfulness in acting, when action is in opposition to the natural impulse to save the vote and make it effectual. He must act so in defiance of both the law and the fact, and so in opposition to his own better knowledge, that he has no right to complain of the loss of his franchise, the exercise of which he has wantonly misapplied." The principle upon which this decision is grounded is that of presumptive acquiescence, the rule amounting to this: That the only circumstances under which a minority candidate can be adjudged entitled to the office are such as create a presumption that the majority intended to acquiesce in the action of the minority, and that only from the majority not voting at all, or from their voting for a candidate whom they know or have notice is disqualified, can acquiescence be presumed.