Smith v. Moore

Zollars, J.

— This case presents for decision a novel, and somewhat difficult question, involving, as it does, the proper construction and application of section 16, article 7, of the State Constitution.

Upon proper request, the trial court made a special finding •of facts.

So far as they need be set out in this opinion they are substantially >as follows:

At the general election in 1880, appellee was duly elected for his first term, treasurer of Benton county for the period of two years, from and after August 15th, 1881, was commissioned', duly qualified, entered upon the discharge of the duties of the •office, and was so serving at the time of the general election in 1882.

At this last election, appellant, appellee, and one Finly' were candidates for the office of treasurer of Benton county, for the term of two years, to commence on August 15th, 1883.

Appellant received a majority of all the votes cast, which was duly certified by the proper board of convassers.

At the April election’ in 1878, appellant was elected a justice of the peace in and for York township, in Benton county, for the term of four years, commencing on the 29th day of November, 1878, was duly commissioned, qualified, and •was discharging the duties of the office at the time of the general election in 1882.

At the April election in said York township, in 1882, appellant, with his knowledge and consent, was voted for, for the office of justice of the’peaee for the term of four years, commencing on the 29th day of November, 1882, and received 127 votes, being the whole number of votes cast for that office.

Proper returns were made of this election. On the 18th day ■of April, the Governor issued a commission to appellant as such justice for a term of four years, from and after the 29th day of November, 1882.'

This commission was forwarded to the clerk of the circuit ■court, where it still remains, appellant never having accepted the same, given bond, or in any way qualified or entered 'upon the duties of the office for the term' so to commence on .November 29th, 1882.

On the 27th day of November, 1882, appellant notified the clerk in writing that he refused to accept or qualify for the second term as justice of the peace.

The court below found as conclusions of law upon these facts:

First. That on the 7th day of November, 1882, appellee was eligible to the office of treasurer of Benton county, for the term to commence on the 15th day of August, 1883.

Second. That appellant on November 7th, 1882, was not ineligible to election to said office of treasurer for the term to commence on the 15th day of August, 1883, by reason of his first election, commission and qualification as such justice of the peace from November 29th, 1878, to November 29th, 1882.,

Third. That appellant was ineligible to election on November 7th, 1882, to the office of county treasurer, for the term commencing August 15th, 1883, by reason of his second election as such justice of the peace for' the term of four years, from November 29th, 1882.

Fourth. That, by reason of appellant’s ineligibility, appellee was elected and entitled to the office of treasurer of the said county, for the said term, commencing on the 15th day of August, 1883.

Judgment was rendered accordingly, declaring appellee, who was the contestor, entitled tó the said office of treasurer. From this judgment appellant prosecutes this appeal.

The section of the Constitution above referred to is as follows :

“ No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the State, other than a judicial office.”

Appellant contends that the ineligibility refers to the right and fitness to be inducted into, and discharge the duties of, an office other than a judicial one, and that the term elected has reference not merely to receiving a majority of votes, but also the acceptance of the office.

And that, hence, although appellant may have been ineligible on the day of election, 1882, by reason of his term of office as justice not having expired, yet, the ineligibility was removed by the expiration of that term on the 29th day of November, 1882, and he might rightfully and legally take and hold the office of treasurer, for the term to commence in August, 1883.

And that, although appellant was, by the proper vote, at the April election, 1882, chosen for a second term as justice, not having filed'the bond or taken the oath required by law, he was not by such election rendered ineligible to the office of treasurer.

On the other hand, it is contended by appellee that the ineligibility has reference to the right to be voted for, and that as the term for which appellant had been elected a justice of the peace in 1878 had not expired on the day of election in November, 1882, all of the votes cast for him counted for nothing, and that the subsequent expiration of such term did not render him eligible to the office of treasurer, the term of which did not commence until August, 1883. And further, that having, with his knowledge and consent, received the votes for the office of justice of the peace in April, 1882, and having received a majority of the votes, he was elected, and thus rendered ineligible for four years to hold the office of county treasurer, although he declined the commission, and refused to file a bond, take the oath, or accept the office of justice of the peace.

These conflicting positions are maintained with much learning and ability by the counsel for the respective parties.

After a careful and full examination, we have reached the conclusion that the position of appellant is the correct one in this case, and that the court below erred in its conclusions of law, so far as they relate to the ineligibility of appellant.

“Legally qualified” is the meaning that should be given to the word eligible, as used in the section of the Constitution under consideration.

“ Office ” has been defined to mean public employment, and its legal meaning to be, an employment on behalf of government in any station of public trust; a place of trust, by virtue of which a person becomes charged with the performance of certain public duties. 5 Wait’s Actions and Defenses, p. 1, et seq., and authorities cited. With this definition of the words “ eligible ” and “ office,” the constitutional provision may be read as follows: No person elected to any judicial office shall, during the term for which he shall have been elected, be legally qualified to be employed qn behalf of government in' any station of public trust, other than a judicial office. In other words, be. legally qualified as an officer, to perform the duties of a public office, other than judicial.

This interpretation disposes of one branch of the case, viz., the alleged ineligibility of appellant on account of his term as justice, which expired on the 29th day of November, 1882, more than eight months before the beginning of the term of office as county treasurer, for which he received a majority of the votes at the November election, in 1882.

When appellant entered upon his term as justice of the peace on the 29th day of November, 1878, he became, during the continuance of that term, disqualified to hold and perform the duties of any public office except a judicial one. But while he could not, during that term, hold or perform the duties of a public office other than judicial, it does not follow that he might not, dui'ing that term, be legally voted for and chosen to an office, the term of which would not begin until after the expiration of the judicial term as justice. Suppose that the judicial term had ended on the 8th day of November, 1882, or on the 7th day of November, 1882, the day of the general election, could it be said with reason that appellant might not have been voted for, and legally chosen to, the office of county treasurer for a term to begin in August, 1883? If so, then the office of justice of the peace disqualified him for holding and performing the duties of that office, not only during the term for which he was elected a justice of the peace, but for almost two years after the expiration of that term. Such' a construction would make the Constitution read that no person elected a justice of the peace shall, during the term for which he shall have been elected,be eligible to be voted for, for any office except a judicial one. Such a construction, we think, is not compatible with sound reason nor a proper interpretation of the Constitution.

We are cited by appellee’s counsel to a number of authorities, which, they contend, support their interpretation of the constitutional provision. The questions for decision in the case at bar are before this court for the first time, and hence, so far as this court is concerned, we are upon untrodden ground. Isolated expressions are found in some of the earlier cases, but they will be found to be purely dicta, so far as they in any way bear upon the questions in this case. They were not necessary to the decision of the questions before the court, and were evidently made without any thought of deciding or intimating a decision of the questions here involved. We notice those cited:

Waldo v. Wallace, 12 Ind. 569. Wallace was the mayor of the city of Indianapolis. During the continuance of his term of office as such, he resigned, became a candidate, and received the highest number of votes, for the office of sheriff for Marion- county. The question for decision, and the only one decided, was, could he, during such term, hold and discharge the duties of the office of sheriff. It was decided that he could not. Of the correctness of this decision we have no doubt, but this is not the question before us in the case at bar.

Gulick v. New, 14 Ind. 93. The facts in this case are the same, substantially, as in the case of Waldo v. Wallace, supra. In this case, it was decided that Gulick, the competitor of Wallace for the office of sheriff, was entitled to 'the office because of the ineligibility of Wallace. Hanna, J., used this language: “ Wallace, the person shown by the record to have been the competitor of Gulick, was ineligible to the office of sheriff at the date of the election.” In construing this language, it must be remembered that Wallace’s term of office as mayor had not expired, and would not expire before the beginning of the sheriff’s term to which he claimed to have been elected. At the time the proceeding was instituted, the term for which he had been elected mayor had not expired; Wallace had abandoned it by a resignation, and was assuming to act as sheriff. It was not necessary to decide, and the language used shows no attempt to decide, that if Wallace’s term as mayor had expired before the beginning of the sheriff’s term, he might not have been chosen to, and legally performed the duties of, the latter office. Perkins, J., in the same case, speaking of the ground upon which the lower court based its rulings, used language similar to that'above quoted from Hanna, J. Without disapproving or giving sanction to the position of the lower court, the judge, subsequently speaks of the inéligibility of Wallace at the time he was. voted for, for the office of sheriff, and in another portion of the opinion, of his disability to hold the office of sheriff The question, and the only question, before the court for decision, was the right of the minority candidate to the office, Wallace being ineligible to hold it. Erom the language used by the learned judge in deciding that question, we can not tell what his opinton was upon the question of ineligibility under the Constitution; whether it applies to the right to be voted for, or to the right to hold and discharge the duties of the office. Howard v. Shoemaker, 35 Ind. 111.

In May, 1869, one Sparks was'elected mayor of Jefferson-ville for the term of two years. On the 11th day of January, 1871, before the expiration of the two years, he was elected by the Legislature a director of the Southern prison, and, having qualified, entered upon the discharge of the duties of .that office. In May, 1871, he was re-elected mayor, and took upon himself the discharge of the duties of that office. The eligibility of Sparks for the office of prison director was one of the questions before the court. It was decided that he was not eligible. This was manifestly correct under former decisions, as the time for which he had been elected mayor had not expired at the time he entered upon the discharge of the duties of director. Downey, C. J., in delivering the opinion, said that 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. This is not authority in support of appellee’s position. It is rather against it. The ineligibility at the time of the election by" the Legislature, seems to be made dependent upon the ineligibility to take and hold the office of director.

It will be seen from this brief review of the cases in this court, that each grew out of an attempt to take and hold another office during the term of a judicial office. In this respect, they differ with the one in hearing. The decisions made in the several cases are authority in all cases of similar facts, but are not applicable to a case like this, so dissimilar in facts.

We are also referred by counsel for appellee to the following cases:

Searcy v. Grow, 15 Cal. 117. Grow was returned as elected to the office of sheriff. His right to hold that office was contested on the ground that at the time of his election he was postmaster. He had resigned that office at the time of his qualification as sheriff. The section of the Constitution upon which the contest was based is as follows: “ No person holding any lucrative office under the United States or any other power, shall be eligible to any civil office of profit under the State,” etc. The court decided that the word “ eligible,” as used in the above constitutional provision, is an inhibition upon being chosen, and that Grow could not hold the office of sheriff, although he had resigned the Federal office.

State, ex rel., v. Clarke, 3 Nevada, 566. This case arose under a constitutional provision similar to that in the Constitution of California, above set out. The case in its facts is similar to the case in 15 Cal., supra. The decision of the court is also similar. It was held that, while the purpose of the provision in the Constitution is to prevent the holding of a State and Federal office at the same time, in order to carry out the intent of the convention that formed the Constitution, the word “eligible” should be given a more extended signification than is generally given to it, and should be held to mean incapable of being chosen, and incapable of holding. The judge, in delivering the opinion, uses substantially the following language: The etymology of the word, and the meaning generally given to it by the best English authors, would hardly justify this interpretation; but the word, as use,d in various constitutions, seems to justify this broader and more comprehensive interpretation. These cases are in point in support of appellee’s position, that the word “ eligible” has reference to the capability of being chosen. But we are not satisfied with the conclusions reached in these cases, nor with the reasoning by which they were reached. We think that the view we have adopted is supported by better authority, and the better reason. It has been decided by the Supreme Court of Wisconsin that a pei'son, not an elector of the State, is ineligible to hold a public office therein, although, the Constitution and statutes of the States do not expressly so ordain, and that, in the absence of a constitutional or statutory provision on die subject, such ineligibility goes only to the holding of the office, and hence, that if an alien, who is not an elector, receives a plurality of votes for an office, he may lawfully hold and exercise the same, if by naturalization his disability is removed before the commencement of the term of office to which he has been elected. State, ex rel., v. Smith, 14 Wis. 497; State, ex rel., v. Murray, 28 Wis. 96 (35 Am. R. 638); State v. Trumpf, 50 Wis. 103. In the case last cited, it appears that one Geilfuss received a majority vote for treasurer of the city of Milwaukee. At the time he was voted for, he was 'an alien, and hence, under the decision in 14 Wis., supra, was ineligible to the office. Before the beginning of the term, of office to which he was chosen, he was duly admitted to citizenship of the United States, and at the proper time filed his bond, took the required oath and demanded the office. The court held that he was entitled to it, the ineligibility-having been removed by naturalization before the beginning-'of the term. See also Privett v. Bickford, 26 Kan. 52 (40 Am. R. 301).

In different provisions of the Federal and State Constitutions, we find various inhibitions and various uses of the word “ eligible.” In some instances, it is apparent that they relate to the holding of office; in others, it is just as apparent that they relate to the right and capacity to be chosen to an office. Thus, in section 2, of article 1, of the Constitution of the United States, it is provided that no person shall be a Representative-who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who-shall not, when elected, be an inhabitant of that State in which he shall be chosen.

It is very plain that, under this provision, the person elected must' be an inhabitant of the State when elected. On the other hand, persons have been admitted as members of the House, who were of proper age at the beginning of the term for which they were elected, although they were not of such age when elected. So, too, section 3, of the Fourteenth Amendment to the Federal Constitution, provides that no person shall be a Senator or Representative in Congress who, having previously taken an oath as a member of Congress, etc., to support the Constitution of the United States, shall have-engaged in insurrection or rebellion, etc., against the same. But Congress may, by a two-thirds vote, remove such disability. Under this provision, as stated by Judge McCrary, it has been the constant practice of the Congress of the United States since the Rebellion, to admit persons to seats in that body who were ineligible- at the date of the election, but whose disabilities had been subsequently removed. McCrary Elections, section 258.

It may be that these rulings of Congress have not the-same weight as judicial determinations, but they are entitled to very great respect. Section 7, art. 4, of the Constitution of this State, fixes the qualifications of members of the General Assembly. These qualifications are all, in plain language, made to relate to the election. We call attention to these sections because they show, as we think, that when the intention Avas to fix qualifications and limitations to the election^ it has been plainly stated, and that when 'such expressions as “ eligible to office ” are used, they relate to the holding of office.

Section 2, art. 6, of the State Constitution, provides that no person shall be eligible to the office of clerk more than eight years in any period of twelve. Here the phrase “eligible to office” has reference to the qualification to hold the office, and not to the election; hence it has been held that while a person might properly be elected, he could not hold beyond the eight years. Carson v. McPhetridge, 15 Ind. 327. And, so, “ eligible to any office,” as used in the section of the Constitution under consideration in this cause, has reference to the qualification to hold office, and not to the choosing or election to such office.

We conclude therefore, that the term for which appellant was elected a justice of the peace in 1878, having expired on the 29th day of November, 1882, he was and is qualified to hold the office of county treasurer, the term of which commenced on the 15th day of August, 1883, and that, having received a majority of the votes for such office at the general election in 1882, he is entitled to the office.

It is insisted, however, and the court beloAV so decided, that appellant is disqualified for the office of county treasurer because, at the spring election in his toAvnship in 1882, he was voted for, and received a majority of the votes for the office of, justice of the peace, the term to begin on the 29th day of November, 1882, although he did not accept the commission, file a bond, take the oath, or in any way accept such office, but declined it. We can not adopt this view, because we do not think it in harmony with a proper interpretation of the provision of the constitution, or with the intent of the framers of that instrument and the people in its adoption, and because it leads to a “reductio ad absurdum.” In the construction of statutes and constitutions, the prime object is to ascertain and carry out the purpose and intent of the authors. To do this, the words used in the instrument should be first considered in their literal and ordinary signification. But, if by giving them such a signification the meaning of the whole instrument is rendered doubtful, or is made to lead to possible injustice and contradictions, or absurd results, the intent as collected 'from the whole instrument must prevail over the literal import of terms, and control the strict letter of the law or constitution. State, ex rel., v. Mayor, etc., 28 Ind. 248; Baker v. Kirk, 33 Ind. 517; McDonel v. State, post, p. 320; Smith Stat., section 488; People, ex rel., v. Potter, 47 N. Y. 375, and authorities cited. As we have seen, the provision of the constitution under consideration provides that “Ho person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office,” etc.1

The language of the section is not, that a party shall be ineligible during the time for which he shall have been elected, but during the term for which he shall have been so elected. This, we think, implies that there shall be a term by which the ineligibility shall be measured, and that the term in contemplation begins, and can only begin, with the acceptance of the office by proper qualification. It is contended, on one side, that the purpose of the convention in the adoption of this provision was to insure a stable judiciary; that by thus rendering the judges ineligible, the result is to keep them in their places during the term for which they may have been elected. On the other side, it is insisted that the purpose was to keep the judges of the courts free from political alliances, and prevent them using their positions as a means of acquiring other offices. . Judging from the debates, we might conclude that the convention had both objects in view. However that may be, the section, without doubt, was meant to apply to judges in office, and not to persons who may be chosen simply, but never qualify or enter upon the discharge of official duties. In order, then, to carry out the purpose and full intent of the section, the word “elected,” as used therein, can not be taken in the narrow sense contended for by appellee, but must be construed to include, not only being chosen to, but an acceptance of, the office.

Let us suppose that A. and B. are rival aspirants for an office not judicial. In order to render B. ineligible to that office, and thus dispose of him as such rival, A. procures the voters ofB.’s township to vote for him for the office of justice of the peace. Having received a majority of the votes, A. contends that B. is elected to that office, and,, without accepting or qualifying, is rendered ineligible to the other for the period of four years. Such a contention on the part of A. would strike the common understanding as entirely untenable and unreasonable. Nor could it make- any difference whether such election might be with the knowledge- and consent of B. or without his knowledge.

An office is not obtained nor held by contract. McCrary on Elections, 216; Pomeroy Const. Law, sec. 547. It can not be said, with reason, that such consent to be voted for is, in any sense, an acceptance of the office. Until the consenting party is known to have received a majority vote, there is nothing for him to accept. If being voted for and receiving a majority of the votes is an election, in the sense in which the word “elected” is used in this section of the Constitution, it can make no difference whether such votes are cast with or without the knowledge and consent of the party voted for. To say that if the votes are cast with the knowledge and consent of the party voted foi’, he is thereby elected, and if, without such knowledge, he is not elected, is to depart from the literal signification of the word “elected,” as contended for by appellee. To adopt this view, it would become, necessary to construe the word “ elected,” and make the Constitution read: No person elected, with his knowledge and consent, to a judicial office shall be eligible, etc. And further, it would impose upon the courts, in every case of contest like this, under this section, the unreasonable and difficult duty of deciding whether or not the- party thus elected was voted for, with his knowledge and consent. Other questions are argued by counsel, but it will not be necessary for us to consider them.

"Without further extending this opinion, we hold that appellant was eligible to the office of county treasurer to which he was chosen, is entitled to it, and that the court below erred in its conclusions of law. The judgment of the trial court is therefore in all things reversed, at the costs of appellee, and the cause remanded, with instructions to that court to make its conclusions of law, and render judgment in accordance with this opinion.

Hammond, J., was absent during the consideration of this cause.