On Petition for a Rehearing.
Elliott, J. —In the brief on the petition for a rehearing appellee’s counsel shift the ground upon which they place their cause, and we might, under settled rules, decline to consider the new points made upon the petition for a rehearing,, but as the case must go back for further proceedings, we have-thought it proper to discuss the questions now presented.
What we decided in the original opinion is, that the complaint makes a prima facie case for the contestant, that is, it shows the ineligibility of the appellee to enter into the office of township trustee at the time his term of office began. Whether he can successfully defeat that case was not the question before us, and, of course, no decision upon that question was made. It may be that the appellee can show by answer that he removed the cause of his ineligibility by resigning the-office of postmaster, but that question can not now be decided,, for it can not arise until there is an answer presenting it.
The complaint demurred to by the appellee shows that he-was not eligible to enter into the office to which he was elected,, and that he claims the office, thus showing a prima facie cause-of action, for we think it quite clear - that a voter may challenge the right of an ineligible person to hold office. The statute expressly so provides.
The cases cited by counsel are not at all in point, except, perhaps, that of Searcy v. Grow, 15 Cal. 117, which is very *227strongly against the appellee, for it goes much further than we have done, as it holds that an incumbent of the office of postmaster is ineligible to be voted for at the election. We are simply required to decide that if a person chosen to office is shown to be ineligible at the time when he ought to be inducted into office, such a case is made as at least drives him to answer.
Filed March 6, 1886.Petition overruled.