State ex rel. Taylor v. Sullivan

• Decision Date: 30 January 1891
• Citation: 45 Minn. 309,47 N.W. 802
• Parties: STATE EX REL. TAYLOR v SULLIVAN.
• Court: Minnesota Supreme Court

45 Minn. 309

47 N.W. 802

STATE EX REL. TAYLORvSULLIVAN.

Supreme Court of Minnesota.

Jan. 30, 1891.

(Syllabus by the Court.)

1. The incumbent of an office, the term of which is for a specified period, “and until his successor is elected and qualified,” is entitled to retain the office after the lapse of the specified period, in the event of the election of another person to succeed him, who is ineligible; hence, he has such an interest in such election that he may invoke a decision as to its legality.

2. The constitution, making persons of foreign birth, who have not declared their intention to become citizens of the United States, ineligible to any elective office, disqualifies such persons from being legally elected. They are not entitled to hold office even though, after being elected, they declare their intention to become citizens.

Application for quo warranto. Order to show cause.

Taylor, Calhoun & Rhodes, for relator.

Theo. Bruener, for respondent.

DICKINSON, J.

By this proceeding, the relator seeks an adjudication as to the right of the respondent to hold the office of county attorney of Stearns county, for which office he received a majority of the votes cast at the general election in 1890. The point of contention is whether the respondent was legally elected, and can hold the office under such election, he being of foreign birth, and having never declared his intention to become a citizen of the United States until after such election. The contention that the relator has no such private interest in the matter as justifies him to invoke a decision upon it, is not sustained. The relator was elected to the office at the election in 1888, qualified and entered upon the discharge of its duties. He is still the incumbent of the office, unless he has been superseded by the respondent, or unless a vacancy has occurred by force of the statute. The term of office for which the relator was elected was “two years, and until his successor is elected and qualified.” Gen. St. 1878, c. 8, § 210. If the election of the respondent was not legally authorized, the relator would continue to hold the office by force of this express provision of the statute. State v. Benedict, 15 Minn. 198, (Gil. 153;)People v. Tilton, 37 Cal. 614. The case in this particular is distinguishable from that of County of Scott v. Ring, 29 Minn. 398,13 N. W. Rep. 181. We therefore hold that the relator's interest entitled him to call in question the legality of the respondent's election. We come then to the question of the right of the respondent to hold the office by virtue of his election in 1890. It appears that at the time of the election, the respondent was not a citizen of the United States, and had not declared his intention to become a citizen, conformably to the laws of the United States upon the subject of naturalization. He relies, however, upon the fact that after the election, and before the commencement of the term of office for which he was elected, he duly declared his intention to become a citizen; and so the fact is shown to be. It is not to be questioned that at the election in 1890, the respondent was not entitled to vote at any election in this state. The constitution (article 7, §§ 1, 2) so declares. Section 7 of the same article reads: “Every person who, by the provisions of this article, shall be entitled to vote at any election, shall be eligible to any office which now is, or hereafter shall be, elective by the people in the district wherein he shall have resided thirty days previous to such election, except as otherwise provided in this constitution, or the constitution and laws of the United States.” This was intended as a restriction, and it has the effect of a constitutional declaration that only such persons as by the provisions of this article are entitled to vote shall be “eligible” to any elective office. We need not dwell upon this proposition, for the argument for the respondent virtually concedes it. He rests his case upon the proposition that this restriction refers merely to the holding of office, and not to elections, and hence that he was legally entitled to the office, because his disqualification was removed before the commencement of the term, although subsequent to the election. This question has not been heretofore decided in this state. The terms of the statute construed in Territory v. Smith, 3 Minn. 240, (Gil. 164,) were such that the decision has no bearing upon the construction of the very different language of the constitutional provision under consideration. The case of Barnum v. Gilman, 27 Minn. 466,8 N. W. Rep. 375, relating to a different...