Jеff A. Taylor, of Marion County, Georgia, filed an information in the nature of a quo warranto against T. B. Eainey, alleging that Eainey was, at the time of his electiоn to the General Assembly of Georgia, and is now the duly elected and acting superintendent of schools for the County of Marion; that at the time of the filing оf said information Eainey was a representative in the General Assembly of Georgia, and he was in fact discharging the duties of the office, then and now. Eainey, filed a general demurrer to the petition, and thereby raised the question as to whether the judge of the superior court had jurisdiction to inquire into thе right of the respondent to hold office as a representative in the General Assembly of Georgia, contending that the right to pass upon this question bеlonged exclusively to the General Assembly. The judge overruled the demurrer, and the respondent excepted. The judge, in a written opinion included in the rеcord, distinctly recognizes the constitutional provision embodied in section 6430 of the Civil Code, which declares that “Each house shall be the judge of the election, returns, and qualifications of its members,” but in effect holds that the question raised in this case is not one as to the qualifications of the respondent as a member of the General Assembly, but is as to his “eligibility,” and in effect holds that the court has the right to pass upon the “eligibility” of a member of the Generаl Assembly, and, if the member in question be found to be “ineligible,” to deprive him of his seat. In support of that conclusion the trial judge sets forth in his opinion the definitions оf the word “qualification” and the word “eligibility.” These definitions are taken from Webster’s Die
We are of the opinion that the word “qualifications,” as used in the constitutional provision quoted, is not subject to the limitations which the definition taken from the dictionary referred to would seem to impose. The word “qualification” as thus used in the constitution, seems to include also certain of the еlements of “eligibility,” as will appear from paragraph 1 of section 6 of the constitution (Civil Code, § 6427), which relates to “qualifications of representatives,” and which declares: “The representatives shall be citizens of the United States, who have attained the age of twenty-one years, and who shall have been citizens of this State for two years, and for one year residents of the counties from which elected.” These provisions last quotеd would seem to relate as much to eligibility, or even more to that question, than to the question of qualification, if we accept the definition quoted above from the lexicon referred to. And we are satisfied that the ground upon which the plaintiff seeks to oust the respondent as a member of thе General Assembly is based upon the disqualification of the member in the light of the meaning which must be given to the two paragraphs of the constitution referred to above. We do not think this precise question has been before this court for determination in any other case, and it has been before but few оf the courts of last resort in other- States of the union. In Attorney-General v. Board of Canvassers,
This ruling by the Supreme Court of Michigan is in eileet that the disqualification of a member of the General Assembly on the ground thаt he was the holder of another office at the time he was elected thereto is a question for determination by the legislative body to which he was elected, under the constitution of the State of Michigan. And the provision of the constitution of that State upon this question is precisely the same as it is in ours. See also the cases cited there. In State v. Tomlinson, 20 Kansas, 692, it was said: “That our decision in this case may not be misunderstood, or misconstrued, we desire to say, that we do not decide that the house of representatives can consist of more than one hundred and twenty-five members, that being the mаximum number allowed by the constitution; nor do we decide that the house, in the exercise of its power to judge of the election and qualification оf its members, can legally admit to seats, as members, any number of persons in excess of one hundred and twenty-five; but our decision is, that, whether the house dogs or does not admit a greater number
It follows that the demurrer to the petition should have been sustained. Judgment reversed.