26 Kan. 52 | Kan. | 1881
The opinion of the court was delivered by
This is an original action in the nature of quo warranto, brought by plaintiff against defendant to try the title to the office of sheriff of the county of Harper, held and occupied by the defendant. An election was held on the 2d of November, 1880, for county officers. At such election plaintiff and one S. S. Singer were the opposing candidates; plaintiff received 607 votes for sheriff’, and S. S. Singer '401 votes. The returns of such election were not canvassed, on account of the refusal of the board of canvassers, until May 16, 1881. The canvass was then made under a peremptory writ of mandamus issued out of this court, and by such canvass plaintiff was declared duly elected as sheriff. Thereafter a certificate of election was issued .to plaintiff, and on the 18th of May, 1881, he duly qualified. On the next day he demanded of the defendant the possession of the office, and the records of the same, which defendant refused. The defendant alleges in his answer that on Tuesday succeeding the first Monday, of November, 1878, he was elected sheriff of
Upon the question of vacancy, this court recently decided, in Privett v. Stevens, 25 Kas. 275, that on the second Monday of November, 1880, there was a vacancy in the office of sheriff in Harper county; that at such election it was lawful to elect a sheriff to fill such vacancy; and therefore nothing further need be said upon the first defense. (
The preponderance of the evidence produced upon the trial tends, we think, to support the claim of defendant, that the plaintiff voluntarily bore arms against the government during the late rebellion, but as the legislature of the state, during its session of 1881, removed such disability (Laws of 1881, ch. 106, p. 209), the question is presented whether a person ineligible under the provisions of our constitution at the election for the office of sheriff, is ineligible to hold the office, provided the disability be removed or cured prior to his receiving his certificate of election and his demand for the possession of the office. Upon this question the weight of authority seems to be, and in our opinion is the better
Section 2 of article 1 of the constitution of the United States ordains that: “No person shall be a representative [in congress] 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.”
Mr. John Y. Brown, of Kentucky, who was elected to the house of representatives of the thirty-sixth congress when he had not reached the age of twenty-five years, and was for that reason ineligible, did not take his seat at the first session; but being of the requisite age at the second session, he took his seat unchallenged, by force of the very votes cast for him when he was in fact ineligible.
Sec. 6 of the same constitution ordains that “ . . . No person holding any office under the United States shall be a member of either ^house [in congress] during his continuance in office.”
Mr. Robert C. Schenek was elected to the thirty-eighth congress in October, 1862, and on the following March was commissioned as a major general of volunteers, and entered upon the discharge of his duty, but resigned the office before the meeting of congress in December, 1863. This raised the question whether he could be admitted to a seat, and the answer was in the affirmative. The committee of elections, in its report on the subject, said:
“ The inhibition attaches the moment the member enters upon the discharge of his duties as such, and nothing is gained by an earlier application of it.”
■ Again, sec. 3 of the fourteenth amendment of the same constitution prescribes:
“No person shall be a senator or representative in congress, or elector of president or vice president, or hold any office, civil or military, under the United States, or under any
Under this provision of the amendment, Judge McCrary, in his work on the Law of Elections, says :
“ 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 their election, but whose disabilities had been'subsequently removed. ” (2d ed., p. 232, § 258.)
On the 8th of November, 1870, one Murray was elected clerk of the board of supervisors in the county of Waukesha, in Wisconsin, for the term of two years, to commence on the first Monday in January, 1871. At the time of such election Murray was an alien, and had not declared his intention to become a citizen of the United States. On the 14th day of November his disability was removed by appropriate proceedings in the circuit court for Milwaukee county, he then becoming a citizen of the United States. Thereafter he commenced an action to obtain possession of the office. The supreme court of Wisconsin held that he was entitled to the office to which he was elected, and decided that a person disqualified to take office at the time of the election would, in the absence of any statutory or constitutional provision to the contrary, be entitled to enter upon and discharge its duties, provided his disability be removed before the commencement of the term for which he is elected. (State v. Murray, 28 Wis. 96; State v. Trump, 50 Wis. 103; 1 Cushing’s Law and Practice of Legislative Assemblies, 2d ed., §§78, 82)
The conclusion reached by us also fits the intimation in Wood v. Bartling, 16 Kas. 109, that where a majority of the electors vote for an ineligible candidate, the election is not a nullity. In England, it has been held that where electors
Judgment will be entered in favur of the plaintiff for the possession of the office of sheriff, and all the costs in the case are hereby adjudged against the defendant.