Territory of Minnesota ex rel. Parker v. Smith

| Minn. | Jul 15, 1859

By the Court

— Flandrau, J.

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 ground, and the Territorial form of government would have continued as if no such election had taken place, and all the officers, from Delegate to Congress to those of precinct jurisdiction, elected under Territorial laws, would have entered upon their functions precisely as they did the previous year. It cannot be said, therefore, that the Constitution or any of its provisions in any manner changed or influenced either the eligibility of the candidates for such offices, or the qualifications of the electors who voted for them. Nor do.its words import any such intention. The Constitution is for the State, not for the Territory, and when Section 1 of Art. 7, after saying who shall vote, adds, “ for all officers that now are, or hereafter may be elective.by the people,” it has reference to a time after it shall have become a Constitution, vested with authority, and has reference to all officers then to be elected, whether under Territorial laws or its own provisions: the six months residence qualification then yields to the four, as prescribed by that section, but not before. It follows that a six months residence in the Territory was necessary to the eligibility of a District Attorney elected at the October election of 1857, the office being created under a Territorial law. It. S.,jp. 69.

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.

The Attorney General is empowered to bring an action on his own information, or upon the complaint of a private party, against any one who usurps, intrudes into or unlawfully holds or exercises any public office, civil or military. B. 8.,p. 411, § 5. The statute very wisely makes provision, not only to settle the question of the right of the Defendant to the office he seeks to hold, but allows any person interested to be joined with the Territory as a Plaintiff, and the whole question of the rights of both parties to be settled in the action, so that the usurper may be ousted and the claimant installed. Judgment may also be rendered in the action for the damages the claimant may have sustained by the usurpation of his rights. 11.) ¶. 53, §§ T to 12, loth incluswe.

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.

Emmett, Oh. J., having been Attorney General for the Territory, took no part in the decision of this cause.