election. And if not, second, whether the person who received the next highest number of votes was elected.

As to the first of these questions, the court is, as nearly as can be, equally divided, the opinion now delivered being that of a constitutional majority only; the judges of the first and second circuits dissenting. As to the second question there is no difference of opinion.

Peter W. Matts, the defendant in interest, and Dunning, the relator, were both candidates, at the late general election, for the office of sheriff of Dane county. Matts received the highest number of votes of any candidate, and Dunning the next highest; and Matts was undoubtedly elected, unless rendered ineligible either by the second section of the seventh article of the constitution, which declares "that sheriff's shall hold no other office, and be ineligible for two years next succeeding the termination of their offices," or by the similar provision of the territorial law, which, it is said, not being repugnant to the constitution, was continued in force by the second section of the constitutional schedule. The assumption that this provision of the old statute is not repungnant to the constitution, if warranted, would dispose of this branch of the case; but I think it is unauthorized.

The constitution, in adopting temporarily the old territorial laws, did so "that no inconvenience might arise by reason of a change of government;" at the same time taking care that only those laws which were not repugnant to the constitution should have force. It adopted, for present purposes, the general municipal laws which it found in being, but regulated for itself its own political system. On its face it purports to be, and in fact was, the work of the people-of the whole people-in which all had an equal and common interest and right, and to which all owed a common duty and allegiance; and I can not believe that a constitution thus broad and catholic ever meant, by adopting an old provincial law, to extend the political disabilities of certain inhabitants of the territory to the citizens of the state. I therefore regard this provision of the territorial statute as repugnant to the constitution, and consequently not adopted by it.

It remains to be seen whether the inhibition of the re-election of sheriffs, contained in the constitution itself, applies to those persons who happened to hold that office at the time of its adoption, or only such as should be elected under it. I think it applicable to the latter only; that it has reference to its own

The constitution

officers, and not to the territorial incumbents. did not perpetuate or modify any of the political rights of the inhabitants of the territory, for, properly speaking, they had none; but it created those rights for the citizens of the state-for all citizens-without preference or exclusion. All were alike its framers, and were equally enfranchised by it; and it seems to me harsh and invidious to say that some five and twenty of its citizens should be excluded from any of its privileges by the circumstance of their happening to hold, at the time of its adoption, a particular office under the expiring government.

Such being the opinion of the court, it is unnecessary to pass upon the second question, whether, in the event of the person receiving the highest number of votes being ineligible, the person receiving the next highest number is elected. But as the question was fully argued, and as it is one that may arise again, it is proper to say, that 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 electors obstinately 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.

The motion for a mandamus is denied.

EFFECT OF INELIGIBILITY OF CANDIDATE RECEIVING HIGHEST NUMBER OF VOTES ON ELECTION.—The question discussed by the court in the principal case has developed into one of considerable importance in this country, in view of the fact that most of the states have enacted statutes which render ineligible to certain offices various classes of persons, generally other officeholders, of a specified kind. Although there is some conflict of authority on this question, the undoubted American doctrine is in harmony with that of the principal case; and the mere ineligibility of the candidate receiving the highest number of votes will not have the effect of electing an eligible candidate who has received the next highest number, but will simply render the attempted election ineffectual for any purpose: Dillon on Mun. Corp., sec. 135; Cooley's Const. Lim. 620; Naar on Elections, 163; Barnum v. Gilman, 27 Minn. 466; State ex rel. Herget v. Walsh, 7 Mo. App. 142; State v. Vail, 53 Id. 97; Sublett v. Bedwell, 47 Miss. 266; State v. Boal, 46 Mo. 528; State v. Smith, 14 Wis. 497; State v. Tierney, 23 Id. 430; Fish v. Collens, 21 La. Ann. 289; Commonwealth v. Cluhy, 56 Pa. St. 270; State v. Gastinel, 20 La. Ann. 114; State v. Swearingen, 12 Ga. 23; Opinion of the Judges, 38 Me. 597; Matter of Corliss, 16 Am. Law Reg. 15; Crawford v. Molitor, 23 Mich. 241;

Saunders v. Haynes, 13 Cal. 145; People ex rel. Furman v. Clute, 50 N. Y. 451. In Saunders v. Haynes, supra, in affirming the doctrine of the principal case, the court said, and its language has been frequently quoted with approval: "Upon principle, we think the law should be so ruled. An election is the deliberate choice of a majority or plurality of the electoral body. This is evidenced by the votes of the electors. But if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him on the poll should receive the office. If this be so, a candidate might be elected who received only a small portion of the votes, and who never could have been elected at all but for this mistake. The votes are not less legal votes because given to a person in whose behalf they can not be counted; and the person who is the next to him on the list of candidates does not receive a plurality of votes because his competitor was ineligible. The votes cast for the latter, it is true, can not be counted for him; but that is no reason why they should, in effect, be counted for the former, who possibly could never have received them. It is fairer, more just, and more consistent with the theory of our institutions, to hold the votes so cast as merely ineffectual for the purpose of an election than to give them the effect of disappointing the popular will, and electing to office a man whose pretensions the people had designed to reject." In People v. Clute, 50 N. Y. 451, Mr. Justice Folger, in reviewing many of the cases cited above, reaches the same conclusion. In his opinion, the learned judge suggests the possibility that there may be a disqualification so open and notorious that voters who persist in giving their ballots for a candidate so ineligible will be held to throw away their votes. What would be the nature of the disqualification in order to have such effect, there is no attempt to accurately define. The mere existence of a general law disqualifying a given class of persons, in which class the majority candidate was included, was held not a sufficient knowledge of the disqualification to render void the votes cast for such candidate. In discussing this subject, the court said: "We think that the rule is this: 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." In State v. Walsh, 7 Mo. App. 142, the court went still further, and held that the death of the candidate receiving the highest number of votes, a few hours before the opening of the polls, did not have the effect of electing the candidate standing next highest on the lists, although the voters and judges of election had knowledge of such fact. In this case the court denied the rule that from such a state of facts any presumption was raised that the voters intended throw away their votes; and in Crawford v. Molitor, 23 Mich. 241, a somewhat similar position was maintained by the court, which laid down the broad doctrine that a minority candidate could never be allowed an election, whether the person receiving the highest num ber of votes was or was not in existence.

In Indiana, on the contrary, the law is settled directly opposite to that which is above stated: Gulick v. New, 14 Ind. 93; Carson v. McPhetridge, 15 Id. 327; Price v. Baker, 41 Id. 572. In this last case it is said to be "law well settled in this state, that where a majority of the ballots at an election

are given to a candidate who is not eligible to the office, the ballots so cast are not to be counted for any purpose. They can not be counted to elect the ineligible candidate or to defeat the election of an opposing candidate by showing that he did not receive a majority of the votes cast at such election. They are regarded as illegal, and as having no effect upon the election for any purpose. As a consequence, it follows that the candidate who is eligible, having the highest number of legal votes, though that number may be less than the number of votes cast for the ineligible candidate, and less than a majority of all the votes cast at such election, is entitled to the office."

In England, where the election system is open, and the voters known, knowledge of a candidate's disqualification is much more easily presumed than in this country, and upon the establishment of such disqualification on the part of the majority candidate, the one receiving the next highest number of votes is elected: King v. Hawkins, 10 East, 211; King v. Parry, 14 Id. 549; Gosling v. Veley, 7 Q. B. 406; French v. Nolan, 2 Moak, 711; Reg. v. Cooks, 3 El. & Bl. 249; Rex v. Monday, 2 Cowp. 530; Rex v. Foxcroft, Burr. 1017.

LUNING v. STATE.

[2 PINNEY, 215; 1 CHANDLER, 178.]

WITNESSES WHO ARE NOT EXPERTS, IN PROSECUTION FOR NUISANCE in erecting and maintaining a mill-dam, can not testify as to what effect an overflow caused thereby had upon the public health in that vicinity. MEDICAL EXPERT MAY GIVE HIS OPINION UPON THE FACTS OF CASE, hypothetically stated, but can not be asked to state his opinion upon all the evidence given on a trial and heard by him.

REFUSAL TO ALLOW COUNSEL TO READ EXTRACTS FROM MEDICAL BOOKS to the jury is within the discretion of the trial court, and therefore not the subject of a writ of error.

STATUTE AUTHORIZING CONSTRUCTION OF MILL-DAMS across streams not navigable does not warrant the building of such dams so as to create a public nuisance.

PROSECUTION for building and maintaining a mill-dam so as to create a public nuisance. The prisoner was convicted. The further facts appear in the opinion.

Holliday, for the plaintiff in error.

J. S. Brown, attorney general, and A. D. Smith, for the state. By Court, LARRABEE, J. This case is brought to this court by a writ of error to the Dodge county circuit court. The plaintiff in error was indicted for erecting and maintaining a mill-dam, which caused the water to overflow a large tract of heavily timbered land, in the immediate vicinity of the village of Cedarburg, in Washington county, and which was alleged created unpleasant and unwholesome vapors, and sickness to the inhabitants of that village. Many witnesses residing in the village

were called by the counsel for the state to prove the situation of the mill-pond, the effect of the stagnant water upon standing and fallen timber, and the prevalence of intermittent fevers to an extraordinary extent subsequent to the erection of the dam. After stating the facts, the question was asked, and the reply of the witnesses permitted to go to the jury: "What effect has the overflowing of that land had upon the public health in that vicinity?" This is the first assignment of error, and on the ground that the opinions of these witnesses, not being experts, was incompetent as testimony. The general rule that the opinions of witnesses are confined to men of science, art, or skill in some particular branch of business, is well settled, and was admitted by the counsel for both parties.

But it was contended by the counsel seeking to introduce this as testimony that the witnesses, having detailed the facts, were properly allowed to state their opinion in connection with them; that they were, from their position and means of information, experts for that particular purpose. They were inhabitants of the village; had lived there before the erection of the dam, and afterwards; had observed the general good health before, and the universal sickness after-there being not enough in health to minister to the necessities of the sick; that the stench from the dam was intolerable, compelling the closing of the doors and windows, and the resort to other expedients to remove its influence. It was upon this ground that I considered this an exception to the general rule, and permitted the evidence to go to the jury. But I am satisfied, upon further examination, and concur in opinion with the other members of the court, that the evidence introduced was not within the general rule; and though perhaps in this case operating unreasonably, yet the rule should have been strictly applied. For this error a new trial must be had.

Another ground of error assigned is, that the witness Whitney, being a medical man, was not allowed to answer the following question: "You state you heard all the evidence given on this trial; now, from that evidence, did Luning's mill-pond, in your opinion, cause the sickness spoken of by the witnesses?" In this the ruling was correct. The answer to this question would have been an opinion as to the general merits of the cause, the weighing of conflicting testimony, and swearing to a legal conclusion; in fact, usurping the province of the jury. The facts, as given in evidence, might have been stated to the witness, and then his opinion upon them would have been