Dissenting Opinion.
Elliott, J.— In my judgment our own cases have given a construction to section 16, of article 7, of our Constitution, and their interpretation is, as I think, correct in principle and sustained by authority.
There are points decided in Waldo v. Wallace, 12 Ind. 569, and Gulick v. New, 14 Ind. 93, to which I yield assent only upon the rule of stare decisis. These cases, however, have not only been again and again approved, but the prevailing opinion in the present case also recognizes them as correct expressions of the law, and as this is done they ought, I deferentially submit, be taken in their full force and not stripped of their only support. The central position in these cases is that the term “eligible” refers to the time of the election; this proposition is assumed, and upon it the cases are built. It is logically inconceivable that electors should be required to take notice of ineligibility at any other time than that at which they cast their votes. It is impossible to make anything else of these decisions than a bundle of inconsistencies upon any other *308basis; without it the reasoning is foundationless. The whole theory of the decisions, the entire framework of the opinions, and the language of the writers, refer to the time the electors cast their ballots. It id then that the candidate must be eligible; it is then that he must' have .capacity to receive the suffrage of the voters. Subsequent cases unhesitatingly give this effect to these decisions. In Carson v. McPhetridge, 15 Ind. 327, it was said: “ The term eligible, as used in our Constitution, relates to capacity of holding, as well as the capacity of being elected.” Can anything be clearer than that this means that the person voted for must be eligible when elected as well as eligible to hold after he is chosen ? In Jeffries v. Rowe, 63 Ind. 592, the court thus expressed its view: “The term eligible means, not only eligible to be elected to the office, but also eligible to hold it after the election.” The decision in Howard v. Shoemaker, 35 Ind. 111, turns upon the meaning of the constitutional provisions under discussion, and it was held that eligible means eligible at the time of the election. The language in which the controlling and pivotal proposition of the case is stated is this: “ The mayor of a city is a judicial officer within the meaning and intent of sec. 16, art. 7, of the constitution of the State, and that, therefore, Sparks was ineligible to the office of director of the prison during the term for which he was elected mayor in 1869, and consequently ineligible when he was elected by the Legislature in January, 1871.” In Reynolds v. State, ex rel., 61 Ind. 392, the court held that an information filed in proceedings in the nature of a quo warranto by one claiming an office, .was bad, because, to borrow the language of the opinion, “it did not contain any averment, either that the relator was eligible, or of the facts which would have shown that he was eligible, at the date of said election.” In the recent case of State, ex rel., v. Bieler, 87 Ind. 320, the. case cited is expressly approved. Bouvier, Abbott and Law-r son adopt the definition of the word given by our cases, and say that it means capacity to be elected as well as to hold. In the case of Searcy v. Grow, 15 Cal. 721, it is said: “We un*309derstand the word eligible to mean capable of being chosen— the subject of selection or choice.” A forcible illustration is given in the opinion in that case, which I borrow: “ Suppose a man, when elected, under sentence and conviction for crime— if such a case can be supposed — would a pardon before qualification give him a right to hold the office ?” In the case of State v. Clarke, 3 Nevada, 566, the decision is that a person ineligible at the time of the election can not be legally elected although before the time comes for him to take the office he becomes eligible. In the cases of Miller v. Board, etc., 25 Cal. 93, and People v. Sanderson, 30 Cal. 160, and Searcy v. Grow, supra, the' same point is decided. The case of the Parker v. Smith, 3 Minn. 240, also holds that where one is required to be eligible to hold office, the eligibility should be consummate at the time of his election. I think that State, ex rel., v. Murray, 28 Wis. 96, will, when carefully studied, be found to be not hostile to the position here taken. In that case, it was admitted that “The term ‘ineligible5 means as well disqualification to hold an office, as disqualification to be elected to an office; ” and it was said that the question was not affected by any constitutional or statutory provision. The real point decided was, that the general rule does not apply in cases where the disqualification is one which the person may remove by his own act. I quote from the opinion: “ In my judgment it is not that a person who is not an elector only because of some disqualification which he has the power to remove at any time, is thereby rendered ineligible to be elected to a public office for a term which is to commence at a future time.” It is obvious that the decision does not apply here, because we have a constitutional prohibition, and because the disqualification is one which the person can not remove. A constitutional barrier can not be thrown down. What is said of the case just cited is true of the Kansas case built upon it. In State, ex rel., v. Smith, 14 Wis. 497, Chief Justice Dixon, speaking for the court, said that there were two questions in the case, and thus stated the first: “ 1st. Whether the defend*310ant, being an alien and not a qualified elector at the time of his election, was eligible to the office,” and assumes in the entire argument that the eligibility refers to the time of the election. In a work of recognized worth it is said: “ If an election is made of a person, who is ineligible, that is, incapable of being elected, the election of such person is absolutely void.” Cush. Pari. Law, section 175. This author recognizes the difference between disabilities which may be removed by the act of the party, and those which the person can not divest himself of, and says that the latter prevents a valid election. He also says, “where the following terms are used, namely, — ‘shall be incapable of being elected;’ — ‘shall be eligible to a seat; ’ — ‘ shall be eligible as a candidate for; ’— ‘ shall be ineligible; ’ the disqualification relates to the time of election.” Cush. Pari. Law, sec. 78.
It is, as I read the decisions, a mistake to suppose that the cases of Gulick v. New, supra, Waldo v. Wallace, supra, Carson v. McPhetridge, supra, and Howard v. Shoemaker, supra, do not give meaning and effect to the constitutional provisions here under consideration. The vital question in these cases was the construction of that provision. It was the important, the controlling question; without a decision of. it no conclusion was logically possible. Upon it the eases turned. The whole provision was the subject of discussion. The questions in those cases were not as to mere individual rights, nor were they confined to mere isolated and collateral questions of individual eligibility — not these by any means — but the question which controlled the decisions and gave them tone and character was as to the force and meaning of this provision of our organic law. I see not how the conclusion can be escaped, that the question as to the meaning of this provision has been forever set at rest by judicial decisions.
It seems to me that the question has not only been decided, but that it has been correctly decided. The purpose of the framers of the Constitution was to prevent one chosen to a judicial office from going before the people for any other *311than a judicial office. This was the view of this court in the 'first case which came before it, involving a discussion of the constitutional provision. It was said in that case of the person who received the highest number of votes for the office ■of sheriff: “ Wallace, having voluntarily accepted a position .under that law, was, by that act, and by force of the constitutional prohibition, placed in a condition that his mind was left free to discharge judicial functions, for the term for which he accepted, without being disturbed by seeking preferment, for the time being, in either of the other departments.” This is a clear expression of - the views of the ■court, and it reflects the intention of the framers of the Constitution, for they meant that during the term of the judicial office no disturbance of the judge’s mind should be caused by political aspirations or contests. In speaking of a similar provision in the Constitution of California, it was said in People v. Sanderson, 30 Cal. 160, that “This provision of the Constitution, so far as it relates to the judicial department •of the State, is, in our judgment, eminently wise. One of its objects seems to have been to confine judges to the performance of judicial duties; and another to secure them from entangling alliances with matters concerning which they may be called upon to sit in judgment; and another still to save.them from the temptation to use their vantage ground of position and influence to gain for themselves positions and places from which judicial propriety should of itself induce them to refrain.” The purpose of the Constitution was to keep judicial officers, during the time they are serving as such, from becoming candidates for office, and the mischief intended to be prevented is that of a judge, holding in his hands personal interests and property rights with power to favor attorneys •and parties, or to annoy and injure them, from entering a ■contest where such power might give him undue influence or lead to unjust favoritism and corrupt results. The evil against ■which the constitutional provision is directed is the entrance into the political contest by one who is at the time a judicial *312officer. The prohibition shuts the judicial officer from the political race. If he be such an officer, he can not be a contestant. In some of the counties of the State, ministerial officers are elected nearly two years before they can be inducted into office (this has occurred because of changes in the statutes and by amendment to the Constitution changing the time of elections), and if the construction of the Constitution for which I am contending be not correct, then a judge may be a candidate, may be elected and yet serve as judge for two years, or until the time the' ministerial office is1 entered into, and surely the Constitution never meant to permit such a result. But take the. ordinary case, officers are elected in November; they usually become contestants weeks before, sometimes months, and not unfrequently years before the election, and if a judge becomes a competitor for the office, he is during all this period engaged in a political strife, the very thing the Constitution intended to prevent. The only way to avoid such a result is to give effect to the plain language-of the Constitution and hold that a judge can not be a competitor in a strife for political preferment, but that while he-is a judge he must “beware of an entrance” into a political contest. This is the result the Constitution was intended to accomplish, and the purpose is a wise one, forjudges ought not to be allowed to be scramblers for political places. The judge must wait until his term of office expires before he can. enter the strife 'for political office, and as long as he is barred from entering into a contest, he is not eligible.
In this case, the appellant was still in office by virtue of a. prior election and qualification, and was also an officer elect,, having been, at his own will, chosen his own successor. I can not escape the conclusion that having been elected at his request, whether express or implied is not material, he became ineligible to election to a ministerial office. It can not be doubted that when it is said of one that he is elected to an office, it is ordinarily meant that he has been chosen or selected. It is never meant, I think it not too much to say, *313that he has been chosen and has also been inducted into office, or has qualified by giving b.ond and taking an official oath. All will agree, I dare say, that as to the public, the candidate who has been legally chosen is elected when so declared by the proper authorities. As to the public then, the question is without difficulty, for the candidate declared chosen is elected.
A citizen, however, has individual rights, and it would result in injury and lead to injustice to declare that whenevér he is chosen to the office of justice of the peace, or any other judicial office, he can seek no political preferment, even though he may' have been chosen against his will. A construction of the Constitution that would result in making a man a judicial officer against his will would put it in the power of those desiring to obstruct his way to other offices to- disfranchise him, and this the Constitution never intended should occur.- We can not, therefore, I agree, hold that a man selected or chosen against his will or consent is, so far as concerns his own rights, elected within the meaning of the Constitution, however it may be as to the public.
I agree, too, that there must be some acceptance on his part. Here comes the point of divergence upon this branch of the case. The majority of the court think that acceptance can only come after election and by qualification, and I, that it may come before as well as after, and that election and qualification are essentially distinct and different things. To my mind it is clear that consent or acceptance may be given as effectually before as after election; that an acceptance is acceptance whensoever made.
I can not see that it is any more difficult to prove acceptance before an election than it is to prove it afterwards. In any event, it is a question of fact to be determined, like all other questions of fact, upon evidence. If it leads to a reductio ad absurdwm in the one case, to hold consent essential, it no less does so in the other. It seems to me that it is much more unreasonable to permit a man to cast aside an office which he has sought, after he has secured the votes *314■of the electors, by his own efforts, than to hold that when he has done this he must abide the consequences of his ■own voluntary act. If men are not held to keep what they have sought and obtained, they are at unrestrained liberty to lightly toss about offices conferred upon them at their own solicitation.
• If the view which I take adds, which I deny, a provision to the Constitution, so, I say with deference, does that of the majority, for it in effect adds the provision “and qualified.” If for this reason one theory is erroneous, so also is the other, for the one adds the element of qualification, which the Con•stitution itself makes a distinct and different thing.
We add nothing to the Constitution in either case. If my view is adopted, then we say the provision does not apply to an individual who has not assented to his selection; if the view of the majority is adopted, then we say that it does not ■apply to one who has not consented and evidenced his consent by qualifying. In neither case is there addition or subtraction ; simply and only a denial of applicability to an individual who has not assented. This objection lies not against either theory, but if in this I am in error, then, surely, I am not when I affirm that if it lies against one, so it does against ■both, and this would drive us to stand on the bare words of the Constitution, and to hold it applicable whether there was ■or was not assent before or after the election.
Acceptance is the vital element; without it the candidate voted for and chosen is not within the purview of the constitutional provision. But whether this acceptance precedes or follows the election is not material. Assent on the part of the individual brings him within the prohibition, gives it applicability to him. This, I understand, we all affirm, but the majority think that the only evidence of binding assent is the qualification, for it is said that “ the term in contemplation begins with the acceptance of the office by proper qualification.” I heartily agree that the term contemplated is that to which the person is chosen with his assent, but can not *315think that assent implies or requires qualification; I believe that election precedes qualification.
Our statutes make a clear and broad distinction between ■election and qualification. Our Constitution does so in no uncertain terms. It declares that “ Every person elected or appointed to any office under this Constitution shall, before entering on the duties thereof, take an oath, or affirmation to support the Constitution of this State and of the United States, and also an oath of office.” Is it not clear from this that election precedes qualification, that before a man can qualify he must be elected ? It is manifest that election and qualification are as distinct as things pertaining to one general subject can possibly be. If, then, one must be elected before he can qualify, ■can it be logically conceivable that in order to make it appear that he was elected within the meaning of the Constitution it must be shown that he qualified? To hold this is to reverse the order of things established by our organic law, our statutes, and our decisions.
Our Legislatures, through a long series of years, have used the word “ elected ” in a uniform sense, and have never, so far as I can find after a somewhat careful search, used it as meaning selection and qualification. Thus, in the section of the statute prescribing the duties of the board of canvassers, it is declared that “ Such board shall declare the person having the highest number of votes given for any office to be filled by the voters of a single county duly elected to such office.” E. S. 1881, sec. 4718. In another section it is written : “ Where any person is elected to an- office,” not commissioned by the Governor, the clerk shall issue a certificate of election. But further quotations are unnecessary, for all statutory provisions make like use of the word.
Sedulous care has been taken by the framers of our Constitution and laws to confine the word “elected” to its popular and legal signification, and to contradistinguish the term “elected” from the term “qualified.” Especially is this apparent, where the purpose has been to prevent a vacancy in *316office. In all such cases there is a careful conjunction of the terms “ elected ” and “ qualified.” Courts have with equal care marked this distinction. It is the rule that if one is elected to office and dies before qualification, there is a holding over, but if he dies after election and qualification, there is no holding over, but a vacancy; People v. Lord, 9 Mich. 227; State, ex rel., v. Seay, 64 Mo. 89 (27 Am. R. 206). Many cases might be cited to show that the courts never use the word “elected” as including “qualified.” Clarke v. Irwin, 5 Nev. 111; State, ex rel., v. Tucker, 54 Ala. 205; Magruder v. Swann, 25 Md. 173. It would ruffle the current of judicial opinion, do violence to language, and throw into hopeless confusion our constitutional and statutory law, to hold that one can not be deemed elected until he has qualified. No such result will follow by holding that as to the public the candidate chosen is elected, and as to the individual chosen that if he assented, before or after election, he is within the Constitution and bound by its terms.
The conclusion for which I contend is the only one which will effect the purpose of the makers of the Constitution. They never meant that one chosen to a judicial office should wait until the time for the induction into place arrived before it could be said that he was elected. They never meant that one chosen might, during the time intervening between his selection and induction or qualification, become a candidate for a ministerial office. They never meant that one so chosen should in this interim play fast and loose; nor did they mean that one so chosen might have it in his own power to make the provision apply or not as he himself willed. If qualification is necessary to make the constitutional provision apply, then there is an interim in all cases of a considerable period of time, in others of a long time — long, at all events, as con- ■ trasted with the term of office, after the result of the election is declared before the candidate is elected. In some of the circuits, judges were elected in 1882, but their terms can not begin until November, 1884. In such a case can the judge elect, by-delaying to qualify until October, 1884, make'an interim of. *317twenty-three months, in which he can not be said to be elected, although at his own solicitation the majority cast their votes for him ? If we say that the meaning of elected “ is elected and qualified,” we have this remarkable result; but if it be held that assent perfects the choice; then this result with all its evil consequences is avoided, for there is then no interim. Suppose —and I do no more than assume what in the main is a real case —assume, I say, that A. was elected judge in November, 1882 ; that the term does not begin until November, 1884; suppose further that he becomes a candidate for some profitable ministerial office; that for this he is defeated; that then he falls •back upon his first election and qualifies for and claims the judicial office held in abeyance. If he be not elected until qualified there is no way to prevent this, and the judge elect is at liberty to take or reject the judicial office, and to use the position given by his selection for selfish purposes. The evil of permitting one elected to a judicial office to hold it in suspension is even greater than that of allowing one actually in office to seek political preferment, for it gives him a position of vantage equally as great because it enables him to use his place as an officer elect to unduly influence voters. It tends to degrade the judicial office, for it suffers it to become a thing to be tossed about at the will of an unworthy man. It either' leaves unfilled the office which the voters had done all they could to fill, or else leaves one there whose only claim is that a successor has not been elected and qualified. These are results to be deplored, and which the Constitution intended to prevent. If it be held that a man who has sought the office is elected when the voters give him their suffrages this is-prevented, and no wrong is done the public, and surely none to the man who freely sought or accepted what was put before him. If he be held to keep what he sought, he has no reason to complain, but if he be allowed to toss it about at will, the voters have just reason for complaint.
I concur in the conclusion reached by the trial court upon this question, and am for affirming the judgment.