Stensoff v. State
| Citation | 15 S.W. 1100 |
| Parties | STENSOFF v. STATE <I>ex rel.</I> LACOUR. |
| Decision Date | 27 March 1891 |
| Court | Texas Supreme Court |
Sam R. Perryman, for appellant. Hume & Kleberg, for appellee.
This was an information in the nature of a quo warranto, brought in the name of the state of Texas upon the relation of Gustavus Lacour, for the purpose of removing appellant from the office of tax assessor of Liberty county. The appellant was chosen to that office at the general election held in November, 1890, and thereupon qualified and entered upon the discharge of the duties of the place. The relator was the appellant's predecessor in the office. The ground upon which the removal was sought was that the respondent was not a legal voter in the county at the time either of his election or of qualification, and that, therefore, he was not eligible to the office. The facts were that the appellant had been a resident and voter in Liberty county for many years; but in March, 1889, he removed with his family to the city of Houston, where he engaged in a mercantile business. In June, 1890, he moved back to Liberty county, and resumed his residence. There was testimony tending to show that he took up his residence in Houston for a temporary purpose, and that it was never his intention to abandon permanently his home in Liberty county; but there was also evidence tending to establish the contrary conclusion. However, the jury found that he "had not lived in the county six months prior to the election," etc.; and this may, for the purposes of this opinion, be assumed to be a finding of the issue against the appellant, and the establishment of the fact that he was not a qualified voter in the county at the time he received a majority of the votes. We then have the question, did the fact that he was not a legal voter in the county render him ineligible to the office of tax assessor? There is no express provision to the effect that the tax assessor of a county must be a voter therein either in our constitution or laws, and, if we decide such to be the law, we must hold that the rule results from the fundamental principles of our form of government. It is said by a recent text writer: "Where no limitations are prescribed, the right to hold office under our political system is an implied attribute of citizenship, and is presumed to be co-extensive with that of voting at an election held for the purpose of choosing an incumbent for the office; those, and those only, who are competent to select the officer being deemed competent also to hold the office." Mechem, Pub. Off. § 67. The cases cited in support of this doctrine are State v. Smith, 14 Wis. 539, and State v. Murray, 28 Wis. 96. These cases involved the question of the eligibility of an alien to hold office under the constitution and laws of Wisconsin, and the decisions were that citizens of the state only could hold office under the state. They are not authority, in any sense, for the proposition that a citizen of the state would be ineligible to office because for the time being he might be disqualified by reason of a change of residence from voting in a particular county. A similar question arose in State v. McMillen (Neb.) 36 N. W. Rep. 587, and there the court held that the claimant to an office was not eligible because...
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