Privett v. Bickford

• Decision Date: 26 July 1881
• Citation: 26 Kan. 52
• Parties: FLETCHER P. PRIVETT v. CHARLES D. BICKFORD
• Court: Kansas Supreme Court

26 Kan. 52

FLETCHER P. PRIVETT v. CHARLES D. BICKFORD

Supreme Court of Kansas

July 26, 1881

Decided July, 1881.

Original Proceedings in Quo Warranto.

ACTION brought in this court by Fletcher P. Privett against Charles D. Bickford, to try the title to the office of sheriff of Harper county. The opinion, filed July 26, 1881, contains a sufficient statement of the facts.

Grove & Shepard, for plaintiff.

Davis & Jetmore, for defendant.

HORTON C. J. All the Justices concurring.

OPINION

HORTON C. J.:

This is an original action in the nature of quo warranto, brought by plaintiff against defendant to try the title to the office of sheriff of the county of Harper, held and occupied by the defendant. An election was held on the 2d of November, 1880, for county officers. At such election plaintiff and one S. S. Singer were the opposing candidates; plaintiff received 607 votes for sheriff, and S. S. Singer 401 votes. The returns of such election were not canvassed, on account of the refusal of the board of canvassers, until May 16, 1881. The canvass was then made under a peremptory writ of mandamus issued out of this court, and by such canvass plaintiff was declared duly elected as sheriff. Thereafter a certificate of election was issued to plaintiff, and on the 18th of May, 1881, he duly qualified. On the next day he demanded of the defendant the possession of the office, and the records of the same, which defendant refused. The defendant alleges in his answer that on Tuesday succeeding the first Monday of November, 1878, he was elected sheriff of Harper county for the unexpired term ending on the second Monday of January, 1880, and duly qualified and took possession of the office; that he has held possession of the office since, and is now holding and discharging its duties; that there was an omission to fill the office on the first Monday of November, 1879, and therefore he says there was not any vacancy in the office to be filled by an election on the second Monday of November, 1880. He further alleges that the plaintiff, at the time of the election, was ineligible to be elected or hold the office of sheriff, because he had voluntarily borne arms against the government of the United States, and voluntarily aided and abetted in the attempted overthrow of the government during the rebellion.

Upon the question of vacancy, this court recently decided, in Privett v. Stevens, 25 Kan. 275, that on the second Monday of November, 1880, there was a vacancy in the office of sheriff in Harper county; that at such election it was lawful to elect a sheriff to fill such vacancy; and therefore nothing further need be said upon the first defense.

The preponderance of the evidence produced upon the trial tends we think, to support the claim of defendant, that the plaintiff voluntarily bore arms against the government during the late rebellion, but as the legislature of the state, during its session of 1881, removed such disability (Laws of 1881, ch. 106, p. 209), the question is presented whether a person ineligible under the provisions of our constitution at the election for the office of sheriff, is ineligible to hold the office, provided the disability be removed or cured prior to his receiving his certificate of election and his demand for the possession of the office. Upon this question the weight of authority seems to be, and in our opinion is the better doctrine, that where the disability concerns the holding of the office, and is not merely a disqualification to be elected to an office, a person who is ineligible at the election will be entitled to enter upon and hold the office, if his disability be removed or cured before the issuance of the certificate, and before entering upon the discharge of the duties of the office for which he is elected. The provision of our constitution is, that "no person who has ever voluntarily borne arms against the government of the United States, or in any manner voluntarily aided or abetted in the attempted overthrow of said government, except all persons who have been honorably discharged from the military service of the United States since the first day of April, 1861, provided they have served one year or more therein, shall be qualified to vote or hold office in this state, until such disability shall be removed by a law passed by a vote of two-thirds of all the members of both branches of the legislature." (Amendment to the constitution, adopted Nov. 5, 1867.) 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 a person may hold the office, he may be elected while he is under disqualification; and if he becomes qualified after the election and before the holding, it is sufficient. In the one case the disqualification strikes at the beginning of the matter -- that is, it prohibits the election of an ineligible candidate; in the other case, the disqualification relates only to the...