State v. Howell

• Decision Date: 10 October 1912
• Citation: 126 P. 954,70 Wash. 467
• Parties: STATE ex rel. REYNOLDS v. HOWELL, Secretary of State, et al.
• Court: Washington Supreme Court

126 P. 954

70 Wash. 467

STATE ex rel. REYNOLDS v. HOWELL, Secretary of State, et al.

Supreme Court of Washington

October 10, 1912

Prohibition on the relation of Charles A. Reynolds, against I. M. Howell as Secretary of State, and others, and W. W. Black. Writ granted.

Reynolds Ballinger & Hutson, of Seattle, for plaintiff.

J. E. Horan, Robert McMurchie, and J. A. Coleman, all of Everett, for respondents.

GOSE J.

This is an application for a permanent writ of prohibition prohibiting the state canvassing board from certifying to the Secretary of State the nomination of the defendant Black as Governor of the state, and prohibiting the latter from certifying his nomination.

The relator alleges in his affidavit that he is an adherent of the Democratic party, a citizen of the United States, a citizen, resident, taxpayer, and elector of the state; that the defendants Howell, Clausen, and Lewis constitute the state canvassing board; that the defendant Howell is the Secretary of State; that at the primary election held on the 10th day of September, 1912, more than four persons appeared as candidates for the Democratic nomination for Governor; that no candidate received 40 per cent. of all first choice votes cast for candidates for that office on the Democratic ticket; and that the defendant Black, who was one of the candidates, received a larger number in the aggregate of first and second choice votes for the nomination than any other candidate, and that he was nominated, if he was eligible to the nomination. It is further alleged that on November 2, 1908, the defendant Black was duly elected to the office of judge of the superior court of the state for Snohomish county for the term of four years commencing on the second Monday in January, 1909, and until his successor should be elected and qualified; that he duly qualified for the office, entered upon the discharge of his duties, and still is such judge, and that, by reason of his election and qualification as such judge, he is ineligible to be elected or to hold the office of Governor of the state for the term commencing on the Wednesday following the second Monday of January, 1913. It is further alleged that the state canvassing board and the Secretary of State have declared their intention to and will certify his name as the candidate on the Democratic ticket for Governor, unless prohibited by this court. The defendants have demurred to the affidavit upon the ground that it does not state facts sufficient to entitle the relator to relief.

The parties to the proceeding unite in asking the court to take jurisdiction and dispose of the case upon the merits. We think the right to maintain an action, questioning the eligibility of a candidate for election to a public office, is inherent in a citizen and an elector. State ex rel. Harvey v. Mason, 45 Wash. 234, 88 P. 126, 9 L. R. A. (N. S.) 1221. Moreover, the proceeding seems to have the sanction of the statute law. Laws 1907, p. 471, § 25.

The provisions of the Constitution, relied upon by the relator as establishing the ineligibility of the defendant Black, are as follows: 'The term of office of all superior judges in this state shall be for four years from the second Monday in January next succeeding their election, and until their successors are elected and qualified.' Const. § 4, art. 5. 'The judges of the Supreme Court and the judges of the superior court shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they shall have been elected.' The relator contends that the provision last quoted means that Judge Black is not eligible to be elected to any office other than a judicial one during his term. On the other hand, counsel for Judge Black asserts that the ineligibility extends only to holding another office during his term, and that inasmuch as his term will expire a day or more before the Governor's term will begin, if his successor has then been elected and has qualified, it will be presumed at this time that this contingency will happen, or, at most, that it will not be presumed that it will not happen, and hence that Judge Black is eligible. We think the relator has correctly interpreted the Constitution. It will be observed that the inhibition is not limited to the incumbency of the judge, but that it is extended to the term for which he shall have been elected. It was conceded at the bar, and it cannot be doubted, that a judge cannot qualify himself to hold an office other than a judicial one during his elective term by resignation or by any other act on his part. The framers of the Constitution knew that judges would be called upon to sit in judgment upon cases of large public and private moment, and they also knew that the righteous cause is not always the popular one, and it was their purpose, in so far as it could be accomplished by the paramount law, to keep the judges out of politics. Both the letter and the spirit of the Constitution are in harmony with this view. Its soundness is illustrated by the fact that a judge cannot qualify for an office, other than a judicial one, during his term by resignation or otherwise, and by the further fact that his term continues until his successor has been elected and has qualified. If the Legislature had enacted that the term of Governor should commence on the second Monday in January next succeeding his election, Judge Black would not then be qualified either to be chosen or to hold the office. We cannot think that the framers of the Constitution intended that the qualification of a judge for election to another office when that officer was elected during his term should depend upon the contingency of that office beginning a day before or a day after the expiration of his term, nor was it their purpose to require the elector to speculate as to whether a candidate, ineligible to hold an office when voted for, might or might not be eligible to hold the office when the time to qualify arrived. There were lawyers of great learning, experience, and ability in the convention that framed our Constitution, and they knew the importance of confining judges to the performance of their judicial duties and the evils that would attend if judges were permitted during their term to take part in the activities of a political campaign for the furtherance of their own political ambitions. If it had been intended to limit a judge to hold an office other than a judicial one during his term, we have no doubt that clear and express words indicating that intention would have been used. Our conclusion is that Judge Black is ineligible to election as Governor. This view is in accord with the definition given to the word 'eligible' by the majority of the lexicographers and text-writers, and with what impresses us as being the best-considered cases.

Black defines the word 'eligible' as 'capable of being chosen,' 'competent to hold office'; Bouvier &amp 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. Enc. Law, 397, 'capable of being chosen,' 'implying competency to hold the office if chosen'; Worcester, 'legally qualified,' 'capable of being chosen'; Webster, 'that may be elected,' 'legally qualified to be elected and to hold office,' 'fitted or qualified to be chosen or elected,' 'subject to election,' 'forming a matter of choice,' 'requiring selection.' The following cases also support this construction: Searcy v. Grow, 15 Cal. 118; People v. Sanderson, 30 Cal. 160; Taylor v. Sullivan, 45 Minn. 309, 47 N.W. 802, 11 L. R. A. 272, 22 Am. St. Rep. 729; Parker v. Smith, 3 Minn. 240 (Gil. 164), 74 Am. Dec. 749; People v. Leonard, 73 Cal. 230, 14 P. 853; State v. McMillen, 23 Neb. 385, 36 N.W. 587; In re Corliss, 11 R.I. 638, 23 Am. Rep. 538; State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739, 51 N.W. 602; State v. Clarke, 3 Nev. 566. In Searcy v. Grow, in construing the following language in the California Constitution, 'no person holding any lucrative office under the United States or any other power shall be eligible to any civil office of profit under this state,' etc., the court said: 'The counsel for the appellant contends that the true meaning of the Constitution is that the person holding the federal office described in the twenty-first section is forbidden to take a civil state office while so holding the other; but that he is capable of receiving votes cast for him, so as to give him a right to take the state office upon or after resigning the federal office. But we think the plain meaning of the words quoted is the opposite of this construction. The language is not that the federal officer shall not hold a state office while he is such federal officer, but that he shall not, while in such federal office, be eligible to the state office. We understand the word 'eligible' to mean capable of being chosen--the subject of selection of choice. The people in this case were clothed with this power of choice. Their selection of the candidate gave him all the claim to the office which he has. His title to the office comes from their designation of him as sheriff. But they could not designate or choose a man not eligible; i. e., not capable of being selected. They might select any man they chose, subject only to this exception: That the man they selected was capable of taking what they had the power to give. We do not see how the fact that he became capable of taking the office, after they had exhausted their power, can avail the appellant. If he was not eligible at the time the votes were cast for him, the election failed. We do not see how...