Demaree v. Scates

• Decision Date: 06 May 1893
• Citation: 50 Kan. 275,32 P. 1123
• Parties: T. E. DEMAREE v. T. A. SCATES
• Court: Kansas Supreme Court

32 P. 1123

50 Kan. 275

T. E. DEMAREE v. T. A. SCATES

Supreme Court of Kansas

May 6, 1893

Decided January, 1893.

Original Proceeding in Quo Warranto.

AT the general election held on the 8th day of November, 1892, T. E Demaree was a candidate for the office of county commissioner of Seward county, from the third commissioner district. At the election, he received the highest number of votes for the office, and was by the board of canvassers declared to be elected. About the 17th day of November, 1892, the county clerk of Seward county issued to him his certificate of election, and on the 3d day of December, he subscribed to the oath of office and gave the bond required by law. On the 9th day of January, 1893, being the second Monday of January, and the day prescribed for him to take his seat as a member of the board, he appeared and demanded that the place be surrendered to him. T. A. Scates was the sitting member of the board of county commissioners from the third commissioner district, duly elected and qualified to that position for the term expiring on the 9th of January, 1893. When Demaree demanded that the office of county commissioner be surrendered to him, Scates refused to comply, alleging as the grounds for his refusal that Demaree, at the date of the general election, held a township office in Seward county viz., the treasurer of the township of Fargo; that at the date upon which he qualified for the office, he held the office of township treasurer, not having resigned therefrom and that, on the 9th day of January, 1893, when he demanded the office, he also held the office of treasurer of Fargo township. Scates further alleged, as a ground for his refusal to surrender the office, that Demaree, at the general election on the 8th day of November, 1892, gave and offered to give a bribe to an elector to vote for him for the office of county commissioner. The other material facts are stated in the opinion herein, filed on May 6, 1893.

Edwin A. Austin, for plaintiff:

The disqualification is against holding the office of county commissioner; it is not against being elected, not against receiving a certificate of election, not against taking the oath of office, or giving an official bond. See P 1622, Gen. Stat. of 1889; Privett v. Bickford, 26 Kan. 52, and cases therein cited. The cases of Roger v. Slonaker, 32 Kan. 191, and The State, ex rel., v. Plymell, 46 id. 294, are not in conflict with this doctrine.

Jas. K. Beauchamp, for respondent; T. S. Brown, of Counsel.

The plaintiff was not eligible to the office in question. See P 1622 of the Gen. Stat. of 1889; Bouvier's Law Dict.; Black's Law Dict., term. "Eligible"; Smith v. Moore, 90 Ind. 294; People v. Leonard, 73 Cal. 230; Searcy v. Grow, 15 id. 117; The State, ex rel., v. Murray, 28 Wis. 96; The State, ex rel., v. Clarke, 3 Nev. 566; In re Corliss, 11 R. I. 638; Taylor v. Sullivan, 45 Minn. 309.

It is submitted that the foregoing authorities establish beyond question the doctrine and the construction, that "eligible to office" means, and can only mean, "eligible to election, or to be elected to the office."

Nor is this construction contrary in any degree to any principle heretofore laid down by this court. Wood v. Bartling, 16 Kan. 109; Privett v. Bickford, 26 id. 52; Rogers v. Slonaker, 32 id. 191.

It is submitted that plaintiff is not eligible to hold the office in question, even had he been eligible to election. See PP 7075, 7078, 7079, Gen. Stat. of 1889. The case of Jones v. Gridley, 20 Kan. 584, is good law, but it has no bearing on this case, being under a different rule. See P 7081, Gen. Stat. of 1889; The State, ex rel., v. Matheny, 7 Kan. 327.

HORTON C. J. JOHNSTON, J., concurring. ALLEN, J., dissenting.

OPINION

HORTON, C. J.:

The principal question in this case is whether T. E. Demaree was eligible to take the office of county commissioner of Seward county on the 9th day of January, 1893. He was elected on the 8th day of November, 1892. At that time he was the treasurer of the township of Fargo of his county. Paragraph 1622, General Statutes of 1889, reads:

"No person holding any state, county, township or city office, or any employer, officer or stockholder in any railroad in which the county owns stock, shall be eligible to the office of county commissioner."

The contention is over the meaning that should be given to the word "eligible" in the statute. This word is determined by law and other standard lexicographers thus: Black: "Capable of being chosen;" "competency to hold office." Bouvier and Anderson: "This term relates to the capacity of holding, as well as that of being elected to an office." Abbott: "The term 'eligible to office' relates to the capacity of holding as well as the capacity of being elected." 19 Am. & Eng. Encyc. of Law, 397: "Capable of being chosen;" "implying competency to hold the office, if chosen." Worcester: "Legally qualified;" "capable of being legally chosen." Webster: "That may be selected;" "legally qualified to be elected and to hold office." Some law writers define the word as "legally qualified; as, eligible to office;" "legally qualified to hold office;" "electible;" proper to be chosen;" "qualified to be elected."

Plaintiff contends that "legally qualified" is the proper definition of the word "eligible," as used in this statute. On the other hand, it is contended by the defendant that "eligible" means "proper to be chosen," "qualified to be elected," "that may be elected;" that is, the candidate for county commissioner must be eligible to the office at the time of the election.

It is a cardinal rule of construction that the words of a statute should be so construed as to carry out the purpose or intent of the lawmakers. Therefore, if a word in the statute has two or more definitions according to the standard lexicographers, that definition should be given in its construction that will best subserve the general purpose for which it was enacted. The literal or strict meaning of a word sometimes gives way to its general import. "The sense and reason of the law are the soul of the law." ( Intoxicating-Liquor Cases, 25 Kan. 751.)

In Privett v. Bickford, 26 Kan. 52, there was construed the provision of our constitution ordaining that no person who has ever voluntarily borne arms against the government of the United States shall be qualified to hold office in this state until such disability is removed by a vote of two-thirds of all the members of both branches of the legislature. In that case it was said:

"This provision operates upon the capacity of the person to take office, rather than as a disqualification to be elected to an office. So the disqualification is to the holding of the office, and not to the election. There is a marked distinction between a person who is ineligible or incapable of being elected, and one who may hold the office. . . . If our constitution provided that the plaintiff was ineligible to be elected, instead of being ineligible to hold office, the contention of the defendant would be good; but as the ineligibility is not as to the election, but only to the holding of the office, such ineligibility is cured by the subsequent removal of the disqualification."

Although the statute under consideration uses the word "eligible" instead of the words "qualified to hold office," contained in the provision of the constitution referred to, yet, if "legally qualified to hold office" is the meaning that may be given to "eligible," the statute and the provision of the constitution may be construed alike, without difference; that is, as going only to the holding of the office. If the statute is a prohibition merely against any person holding any state, county, township or city office, or any employer, officer or stockholder in any railroad in which the county holds stock, from being elected to the office of county commissioner, then a person "eligible at the election," that is, "capable of being legally chosen," might be elected to the office of county commissioner, and afterwards accept a state, county, township or city office, or become a stockholder in a railroad in which the county has stock. If "eligible" is to be construed as to the capacity of being chosen or elected, the statute would be of no actual benefit. It would permit that to be done which it was evidently the purpose of the lawmakers to prevent. They did not desire a county commissioner to hold another office, or that he should be a stockholder in a railroad in which his county is interested. They evidently intended to prohibit a county commissioner, while holding that office, from being a state, county, township or city officer, and also intended to prohibit him, while holding such office, from being an employer, officer or stockholder in any railroad in which his county owned stock. This was the evil sought to be avoided by the statute. Therefore, to construe the word "eligible" as meaning "legally qualified to hold office," seems to us to better subserve the spirit, as well as the letter, of the statute. Even if we should construe "eligible" as "electible," or "proper to be chosen," or "capable of being elected," then, to carry out the purpose of the statute, as already stated, we must also give "eligible" the additional definition of "legally qualified," or "capable of holding office," or of "acting as a member," because it will not comply with the spirit of the statute to rule that if a person is elected county commissioner, although eligible at the time of his election, he may, after his election, accept the other offices referred to in the statute, or become connected with a railroad in which the county owns stock. To give these two different definitions to the word "eligible" in the same statute,...