Bradfield v. Avery

• Decision Date: 26 June 1909
• Parties: ALBERT D. BRADFIELD, Respondent, v. JENNIE FARRER AVERY, Appellant
• Court: Idaho Supreme Court

102 P. 687

16 Idaho 769

ALBERT D. BRADFIELD, Respondent, v. JENNIE FARRER AVERY, Appellant

Supreme Court of Idaho

June 26, 1909

ELECTION-CONTEST-COUNTY SUPERINTENDENT-ELIGIBILITY.

1. A complaint to contest an election, under subd. 2, sec. 5026 Rev. Codes, must allege and show facts which disqualify the incumbent, or person declared elected, at the time of the election.

2. Where the word "eligibility" is used in connection with an office, and there are no explanatory words indicating that such word is used with reference to the time of election, it has reference to the qualification to hold the office, rather than the qualification to be elected to the office.

3. The provisions of sec. 585, Rev. Codes, "That no person shall be eligible to the office of county superintendent of public instruction except a first grade practical teacher of not less than two years' experience in Idaho, one of which must have been while holding a valid first grade certificate issued by a county superintendent," relates to the time the person so elected is inducted into office and although the person so elected does not possess such qualification at the time of election, still if the disqualification is removed and the person elected becomes qualified at the time he is inducted into office, such person is eligible to the office of county superintendent of public instruction.

4. A person who will become qualified to hold the office of county superintendent of schools, under the laws of this state, may be elected to such office while under disqualification provided such disqualification is removed before the term of office, to which such person is elected, begins.

5. Sec 593, Rev. Codes, empowers the state board of education "to authorize the county superintendents to issue teachers' certificates to graduates of state normal schools, and to graduates of any chartered college or university having the right to grant degrees: Provided, that applicants for certificates under the provisions of this section shall have been successfully engaged in teaching not less than twenty-seven months, and shall present to the state board of education a certificate of graduation from a state normal school, or a literary degree from a chartered college or university."

6. When application is made to the state board, under said sec. 593, and the necessary credentials and proof are furnished the board and the board admits such proof is sufficient, and subsequently is- sues a certificate thereon and by reason thereof, then the applicant is entitled to have such certificate issue as of the date such application and proof is made; and a certificate issued upon such proof will relate back to the date such applicant showed she was entitled to such certificate.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, in and for Ada County. Hon. Fremont Wood, Judge.

An action to contest the election to the office of county superintendent of schools. Judgment for contestant. Contestee appeals. Reversed.

Reversed and remanded, with direction. Costs awarded to the appellant.

J. G. Watts, and Wyman & Wyman, for Appellant.

Sec. 5026, and those sections following it, providing for the institution and conduct of contests of election, belong to the law of procedure solely, and cannot be construed as prescribing disqualifications of persons to hold office. (Ward v. Crowell, 142 Cal. 587, 76 P. 491.) It is an eligible officer the law requires, and any person who can qualify himself to take and hold the office is eligible to it at the time of the election (Ward v. Crowell, supra; State v. Van Beek, 87 Iowa 569, 43 Am. St. 397, 54 N.W. 525, 19 L. R. A. 625.)

When appellant made the application on September 27, 1907, and showed herself possessed of all the qualifications required by the statutes, she was then and there qualified, and was entitled to a certificate as of that date, and the officers, whose duty it was to authorize the issuing of a certificate could not, by withholding that authority, deprive her of any of those substantial rights guaranteed by the constitution and laws of the state. Parties litigant should not be made to suffer through the default of an officer of the court, when due diligence is shown. (Westheimer v. Thompson, 3 Idaho 418, 31 P. 797.)

The date named in a certificate is not conclusive, and proof may be introduced to show the true date. (Hobson v. Kissam, 8 Ala. 357; Harrington v. Gage, 6 Vt. 532; Gest v. Flock, 2 N.J. Eq. 108.)

John F. Nugent, for Respondent.

"Eligible" means capable of being chosen; the subject of selection or choice. (Ward v. Crowell, 142 Cal. 587, 76 P. 491; Sheehan v. Scott, 145 Cal. 684, 79 P. 350; State v. Clarke, 3 Nev. 570; State v. Moores, 52 Neb. 770, 73 N.W. 299.) Etymologically, the meaning of "eligible" is capable of being chosen, and therefore denotes a condition existing at the time of choosing, whether by election or by appointment. (People v. Purdy, 21 A.D. 66, 47 N.Y.S. 601; Taylor v. Sullivan, 45 Minn. 309, 22 Am. St. 729, 47 N.W. 802, 11 L. R. A. 272; Drew v. Rogers (Cal.), 34 P. 1081; Searcy v. Grow, 15 Cal. 118; Roane v. Matthews, 75 Miss. 94, 21 So. 665.) Ineligibility "creates an incapacity to be elected to the office." (Saunders v. Haynes, 13 Cal. 145; People ex rel. Palmer v. Woodbury, 14 Cal. 43; Spear v. Robinson, 29 Me. 531; People ex rel. Hoffman v. Hecht, 105 Cal. 621, 45 Am. St. 96, 38 P. 941, 27 L. R. A. 203.)

The words "shall have the power," in sec. 593, Rev. Codes, undoubtedly give the board a discretionary power, and are permissive in their nature. "When statutes are couched in words of permission, or declare that it shall be lawful to do certain things or provide that they may be done, their literal significance is that the persons, official or otherwise, to whom they are addressed are at liberty or have the option to do those things or refrain, at their election." (Suth. Stat. Const., sec. 460; Minor v. Bank, 1 Pet. 46, 7 L.Ed. 47; Binney v. Canal Co., 8 Pet. 201, 8 L.Ed. 917; Thompson v. Lessee of Carroll, 22 How. 422, 16 L.Ed. 387.)

STEWART, J. Ailshie, J., concurs. Sullivan, C. J., did not sit at the hearing.

OPINION

STEWART, J.

At the general election held in this state on the 3d day of November, 1908, the appellant was elected to the office of county superintendent of public instruction in Owyhee county and received a certificate of election therefor. The respondent contests such election upon the ground that upon the date of such election the appellant had not had one year's experience as a teacher in the state of Idaho while holding a valid first grade certificate, issued by a county superintendent of public instruction in this state.

The respondent demurred to the complaint upon the ground of insufficiency of facts, first, for the reason that the allegation of want of one year's experience while holding a valid first grade certificate at the date of election is not a ground of ineligibility; and second, for the reason that the act of 1903 (sec. 585, Rev. Codes), in so far as it prescribes the qualification of one year's experience under a first grade certificate is unconstitutional and void. The demurrer was overruled and answer filed in which the appellant plead the facts with reference to her application for and the issuing to her of a certificate.

It is alleged in the answer and found by the trial court that on September 27, 1907, the appellant presented to the state board of public instruction of the state of Idaho a certificate of graduation from the Mansfield State Normal School of Mansfield, Pennsylvania, and also presented proof to said board that she had taught twenty-seven months since said certificate was issued to her, together with proof of her good moral character, and in every way complied with the statute of Idaho defining the qualification necessary to entitle a state normal school graduate to receive a certificate from a county superintendent of public instruction in Idaho; and that upon said date she requested said board to authorize the county superintendent of public instruction of said Owyhee county to issue a certificate to her; that said board refused the request of the said appellant, and gave as the reason for said refusal that the said Mansfield State Normal School of Pennsylvania was not included in an accredited list of schools that was then being prepared by said board; that on said day, and frequently thereafter, the appellant by correspondence and interviews requested and insisted that said board authorize the issuing to her of a license to teach, and that on March 31, 1908, said board authorized the county superintendent of Owyhee county to issue said certificate to appellant, and it was so issued on April 2, 1908; that said certificate was issued, notwithstanding the fact that the said Mansfield State Normal School was not on an accredited list prepared by said board; that no objection was ever made by the board to the diploma of the appellant from the Mansfield State Normal School or to her qualifications, and that the only reason ever given by said board for not authorizing the issuance of a first grade certificate to her was that said school was not included in said accredited list; that the only time the appellant ever presented her said diploma or her qualifications, as provided by law, to said board was on said September 27, 1907, and the first grade certificate issued to her by said county superintendent on April 2, 1908, by authority of said board was based upon said diploma and qualifications presented to said board on September 27, 1907. Trial was had and judgment rendered in favor of the contestant, respondent here. This appeal is from the judgment.

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