3 Minn. 240 | Minn. | 1859
By the Court
During the Territorial existence of Minnesota, a residence of six months in the Territory was necessary to the eligibility of any officer under its laws. Laws of 1854, ¶. 104, § 3.
When a Constitution was formed preparatory to becoming a State, a different rule was adopted, which cut down the necessary period of residence to four instead of six months. Const,, Art. 7, §§ 1 and 7. But the Constitution was not operative until after its adoption by the people, and did not change any rights, duties, requirements or obligations that were created by or dependant upon any Territorial act, until it had received such sanction. All elections of officers, and every innovation upon the Territorial form of government made by the Constitution were necessarily dependent and conditioned upon its adoption by the people.
At the election in October, 1857, at which the Constitution was submitted, there were two distinct elections, although held on the same day and at the same places for convenience. _ Tin's was absolutely necessary in the event of the Constitution being rejected by the people, in which case all the votes 'cast for any of the officers created by the Constitution would have been of no effect, and the whole State scheme would have fallen to the
This qualification of residence should be consummate at the time of the election, and it will not do that the period of probation is completed before the party qualifies or enters upon the duties of the office. This must be so, or different periods of residence would suffice for the same office under different circumstances of election. "When a person is elected to a Territorial county or precinct office for the regular term, his duties do not commence until the succeeding January; but when elected to the same office to fill a vacancy, he qualifies and enters upon the duties of the office at once. It. S.,p. 53, §§ 45 and 46. It cannot mean that a longer time of residence is necessary for an officer who is elected to fill a vacancy than is requisite for him to fill the full term, yet such would be the inevitable result if the doctrine contended for by the Defendant in Error should prevail.
The Defendant in Error not having resided within the Territory six months prior to the election of 1857, was not eligible to fill the office of District Attorney.
There are two separate and dissimilar interests allowed to be united in this action. The one, that of the Territory, in preventing any one not «Inly chosen from exercising official functions, the other, private in its nature, as to who shall exercise them, and enjoy the emoluments thereof.
The cause of action is perfect against the Defendant, if the private interests are not united, and if joined and defectively averred, there might be a misjoinder of parties Plaintiff. The complaint clearly avers the ineligibility of the Defendant, and we think shows the Plaintiff entitled to hold the office. It alleges his election in 1855, which would make his regular term end on the 1st day of January, 1851. B. 8.,jp. 53, § 45, y?. 69, § 1; but should no one be elected and qualify at the succeeding election, he would hold over. B. 8.,p. 85, § 5. The. complaint alleges that no one was elected as a successor, and also that he has not otherwise lost the office by resignation, removal, or disqualification; these allegations leave him entitled to hold it; the votes cast for the Defendant could in no way influence his rights to continue alter the expiration of the regular term and until his successor is elected and qualified.
The Court below clearly erred in sustaining the demurrer to the amended complaint, and the judgment thereon is reversed, and case remanded.