State Ex Rel. Sullivan v. Hauerwas , 254 Wis. 336 ( 1949 )

The relator is disqualified by reason of his age. The constitution requires that a circuit judge be twenty-five at the time of his election. It is admitted that relator will not have attained that age at the time of the election in which he wishes to be a candidate for such office. This being established it was impossible for him to show a specific right entitling him to have his name on the ballot at the primary or at the election. This will not prevent any elector from exercising his franchise in any way he chooses even to the extent of casting a useless vote. We are considering only the lack of a right in the relator to the writ of mandamus.

The principles which influence my opinion are those recognized as the law in State ex rel. Dunning v. Giles, 2 Pin. 166;State ex rel. Holden v. Tierney, 23 Wis. 430; People ex rel.Furman, v. Clute, 50 N.Y. 451. In State ex rel. Smith v. Drake,83 Wis. 257, 261, 53 N.W. 496, it was said: "The writ will not issue to compel the performance of what would be unlawful, . . . or to enforce what would be without authority of law." See alsoState ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N.W. 1068.