State ex rel. McKelvie v. Wait
146 N.W. 1048
Neb.
1914
Check Treatment

Lead Opinion

Per Curiam.

Relator is the present lieutenant governor of the state.. Desiring to become the republican party’s candidate for governor at the next general election, he requested the secretary of state to place his name on the official ballot for the primary election to be held August 18, 1914. This the secretary of state declined to do, on the sole ground that relator, being the present lieutenant governor, is ineligible to be elected governor for the two-year term beginning in January, 1915. The course taken by the secretary of state is based on his interpretation of the following constitutional provision: “None of the officers of the executive department shall be eligible to any other state office during the period for which they shall have been elected.” Const., art. Y, sec. 2. The secretary of state defines the word “eligible” as “capable of being elected,” and argues that, since relator was elected lieutenant governor for the two-year term ending in January, 1915, he cannot, during that term, be elected governor, another state office, at the general election in November, 1914. This is an application to the district court for a writ of mandamus commanding the secretary of state to comply with relator’s request for a place on the official primary ballot. A demurrer to the application was sustained and the action dismissed. Relator has appealed.

Relator was elected lieutenant governor for the term of two years “from the first Thursday after the first Tuesday in January,” 1913. Const., art. V, sec. 1. Is he eligible to the office of governor for the term of two years “from the first Thursday after the first Tuesday in January,” 1915? The answer depends upon the meaning of the constitutional provision that “none of the officers of *808the executive department shall he eligible to any other state office during the period for which they shall have been elected.” In constitutions and statutes, the use of the word “eligible” in connection with an office has often been discussed by the courts. Authority is divided. To what the courts have already said on the subject, little new matter can be added.

There is abundant authority for the rule that ineligibility to office extends to the capacity to be elected. State v. Clarke, 3 Nev. 566; Roane v. Matthews, 75 Miss. 94, 21 So. 665; Taylor v. Sullivan, 45 Minn. 309; Finklea v. Farish, 160 Ala. 230, 49 So. 366; State v. Howell, 70 Wash. 467, 41 L. R. A. n. s. 1119. This court is committed to the doctrine announced in the cases last cited. Stave v. Moores, 52 Neb. 770, 801; State v. Boyd, 31 Neb. 682; State v. McMillen, 23 Neb. 385. The interpretation was : “The word ‘eligible’ relates to the capacity to be elected or chosen to office, as well as to hold office.” In the dissenting opinion it was also said: “We think the greater number of the adjudicated cases, as well as the decided weight of authority, sustain the proposition that the word ‘eligible’ means both competent or capable of being elected to office, and competent or capable of holding office. * * * Not one of the cases reviewed above is authority for the contention made here that the word ‘eligible’ found in our constitution refers solely to legal qualification to hold office. Nor, after a somewhat protracted examination, have I been able to find any case where the word ‘eligible’ was given such a construction when used in a law or constitution like ours.” State v. Moores, 52 Neb. 770, 801. Without departing from this rule, it cannot be held that relator is eligible, or that he is entitled to a place on the primary ballot. There being reason and authority on both sides of the question presented, no sufficient ground has been suggested for changing the rule to which this court is committed. It follows there is no error in the proceedings below, and the judgment is

Affirmed.

*809Reese, C. J., not sitting.



Concurrence Opinion

Hamer, J.,

(Concurring in conclusion only).

I concur in the conclusion because the opinion is based upon the former decisions of this court. If the question were a new one I should be in favor of a different determination of the case, and I am inclined to the belief that the former opinions, in the interest of public policy and a fair construction of the language used, should be overruled. I have glanced into the opinions of some of the other courts and find that they rest upon different constitutional provisions than those contained in our constitution. The meaning to be given to the word “eligible” depends upon the connection in which it is used. If it is used in connection with holding an office, then it means eligible to hold an office and it does not mean something else. The languág-e “None of the officers of the executive department shall be eligible to any other state office during the period for which they shall have been elected” would seem to mean ineligible to hold the office during such period, but not to forbid an election of the proposed officer for another and different period for which he was not elected. The power of the voter to nominate and elect his choice should not be restricted beyond the clear import of the language used.