In re Barnum

• Decision Date: 29 March 1881
• Parties: IN RE BARNUM.
• Court: Minnesota Supreme Court

27 Minn. 466

8 N.W. 375

IN RE BARNUM.

Supreme Court of Minnesota.

Mar. 29, 1881

Quo Warranto.

H. F. Masterson, for Barnum.

C. K. Davis, for Gilman.

CORNELL, J.

The question of granting leave to the relator, without the consent of the attorney general, to file an information for a quo warranto against the defendant to inquire into and determine his right to the office of lieutenant governor, which he now holds, is presented upon the admission and averments of his answer to the petition and order to show cause, taking them to be true. If, upon the showing thus made, the relator is not entitled to the office under any circumstances, he clearly has no interest in any question properly triable by means of the writ, and his application should be denied on that ground alone, irrespective of any other question or consideration.

At the state election in November, 1879, the relator and respondent were both candidates for the office of lieutenant governor, for the term commencing January 1, 1880, having been put in nomination and supported as such by their respective parties. The result of the official canvass, the correctness of which is admitted, showed that of all the votes cast for that office the respondent received a decided majority, and some 20,000 more than the relator, who was the next highest candidate. Thereupon the respondent was duly declared elected, and given a certificate of election, and he subsequently qualified as such officer.

At the time of his nomination he was holding the office of a representative in the legislature from the first representative district, in the county of Stearns, under an election extending to January 1, 1881; but prior to the said state election he resigned that office, and his resignation was duly accepted. In the convention that nominated him, the fact of his being a representative was made known, and the question of his eligibility to the office in view of it was discussed, with the result already stated. The discussion was continued during the subsequent canvass, in the newspapers and at various public meetings held in different parts of the state, his eligibility being insisted upon by his friends and supporters, and denied by his opponents. Upon this state of facts relator claims that the respondent was ineligible to the office, under article 4, section 9, of the constitution, which provides that “no senator or representative shall, during the term for which he is elected, hold any office under the authority of the United States, or the state of Minnesota, except that of postmaster,” and that the fact of his ineligibility was of such general notoriety as to be presumably within the knowledge of the whole body of electors, so that all votes cast for him must be treated as nullities, although not declared to be void by any express provision of law.

It may well be doubted whether the constitutional provision in question was intended as a restriction upon the choice of the electors in the selection of their official servants. Clauses of that character must receive a strict construction. They cannot be extended by implication. The constitution makes every qualified elector eligible to every office elective by the people, except as otherwise provided by some of its provisions, or by the constitution aud laws of the United States. Article 7, § 7. In the case of justices of the supreme and district courts, special provision is made against their holding any other office under the United States or this state, and it is also expressly provided that “all votes for either of them for any elective office under the constitution, except a judicial one, given by the legislature or the people, during their continuance in office, shall be void.” Article 6, § 11. The clause under consideration contains no such declaratory enactment as to the effect of votes given to a senator or representative while in office for any other office, or the ineligibility of a person holding the office of senator or representative while in office for any other office. The prohibition is against holding any other office embraced within it, but it does not in terms go to the ineligibility of a person holding the office of senator or representative to an election to such other office. Ineligibility to hold an office, and ineligibility to an election to it, are not identical. One may be disqualified from holding an office at the time of his election thereto, and yet be eligible to an election to it; and if, before he is required to enter upon its duties, the disability is removed, he may also take and hold it. The plain purpose of the provision was to prevent persons holding official relations with any other department of government, state or federal, from influencing directly, by their presence and votes, legislative action in matters affecting such, their relations or their private or personal interest connected therewith.

Hence the disqualification was attached eo nomine to a “senator or representative,” which, of itself, clearly implies that it can only continue while the party affected by it remains a senator or representative. When he ceases to be such, whether by lapse of time, resignation, or otherwise, the disability terminates. The clause, “during the time for which he is elected,” cannot properly be construed as enlarging the scope of the prohibition so as to include persons not in fact members of the legislature. The expressed purpose of the provision was to prohibit senators and representatives from holding any other office than postmaster, and not to disqualify for a definite period of time persons who may become such, whether they remain in office or not. The clause may very properly be construed to mean “during his term of office,” and this may be the full time during which the office may be held, or such shorter period as the incumbent may consent to hold it. The term of every elective office, in the absence of any express enactment of law to the contrary, may be terminated at the pleasure of the incumbent, by resignation, or by the acceptance of an incompatible office.

Conceding, however, the incorrectness of these views as to the construction of the constitutional provision in question, and that the respondent was in fact legally ineligible to the office of lieutenant governor, it is certain that his right to hold the office cannot be rested upon the information of the relator alone, without the consent of the attorney general, unless he shows himself elected to the office by reason of his having received the next highest number of votes to those cast for his ineligible competitor.

The relator's right to the office depends upon the legal effect of the votes which the respondent received, assuming him to have been ineligible by reason of the alleged fact that his term of office as representative had not then expired, notwithstanding his resignation; the contention on the part of the relator being that they were absolute nullities, and therefore not to be counted or considered in determining the result of the election.

The authorities of both the English and American courts agree...