The Elko independent. [volume] (Elko, Nev.) 1869-1872, 1870-06-11
Il He IreliRibleJ

I fons upon, the question Of Judge Berry,s ELI
gieility to the Office of Governor, We propose
to have our say on the subject; and, as usual,
ind ourselves differing widely from thee
sions arrived at by them; in fact we would
doubt very much the. correctness of any con-
clcsion we might arrive at upon any question
pertaining to political. matters, unless we
could make it certain that We differed in our
views from those maintained by the press Of
the Radical party. The objection urged
against the eligibility of Judge Berry for Gov
crnor is founded on q supposed constitutional
prohibition, designed to prevent judicial off,
Gers from being elected to any other than a
Judicial Office during the term for which thew
were elected as such Judicial officers. The
constitutional prohibition is contained in Sec.
IL, Art. OF the Constitution, and reads:
The Justices of the Supreme Court and the
District Judges shall be ineligible to any Of
nee other than q judicial Office during the
term for which they shall have been elected "
II this section of the Constitution ended here
there would not be a color of doubt, in the
mind Of any one conversant with the facts, that
the prohibition contained in the Constitution
did not apply to Judge Berry, as the term of
the Office which he seeks does not begin until
after the expiration OF his present Judicial
term. But it is contended that the sutse-
quent portion of the section contains an adj
ditionai disqualification, to the effect that. al
though eligible to hold All Office which begins
ct and runs from the close of n judicial term,
yet If the election to such Office falls within
the term then il is void and confers no right
to hold such Office after the expiration of such
judicial term. The subsequent portion reads:
And all elections or appointments OF any
such judges"-that is judges that come with
in the disabilities before named-"by the peo-
pie. Legislature or otherwise during said pc
Rod shall be void" This portion o! the sec
ton does not create a new disability separate
and independent OF that contained in the first
part of the section. but is only used rs au1iIia-
~ TO the prohibition against holding IN once
the term of which would enter into and form
a portion Of une1Pired judicial term; that
is TO say. the election of any person coming
within the preceding disability shau te void
The authorities On tho general doctrine OF
ineligibS!ity furnish numerous examples 10
the effect that where person il Ineligible 10
hold an Office. his election thereto during
the existence Of such iueljGiLilny shall be
null and void; brg, II our researches We have
been unable TO fiud q single case where the
person chosen would DO eligible to hold The
Office at the commencement Of his term that
his election would be held 10 lie void In tho
case of the State Of Nevada e1 rel Nourse
vs.. Clark, reported in Sd Nevada, where the
disqualifying section of the Constitution
reads. mo person holding any lucrative Of
ice under the Government Of the United
States or any other power, shall be eligible
to any civil office Of prof, under this State"
the court say, "If, then. as We have con-
cluded, one holding the Office Of United States
District Attorney on the day of election is in
capable Of being lawfully chosen to the Office
of Attorney General of the State of Nevada,
the next point of inquiry is, was the defend
ant United States District Attorney on the 9th
day of November, 1862" The Court in this
csse merely affirm tho general doctrine
that person Ineligible to an Office on the day
Of election is incapable of being chosen there
to-thnt u.s. the ineligibility to hold the office
renders the election void. In the case we arc
now considering it will not be contended that
Judge Berry is incapable of holding the Office
or that he is ineligible TO the Office of Cover.
nor but that he is simply incapable of being
elected. II will therefore be seen that the de.
cisions above cited and the general doctrine
on the subject Of ineligibiIity 70 Office does
not touch his case, as the ineligibility, il any,
is not 20 the right to hold tho Office, but nero.
ly to the right TO DO elected. In our researches,
we have been unable to find any casc directly
in point, as the language Of our Cons titution
is very peculiar in it's wording. and may loavo
room for uncertainty in its construction With.
out the light Of precedent or Judicial decision
on tho point. Indel endent however, Of
what we consider 10 be fair construction of
the context Of tho whole section taken to-
gcther, the general doctrine established by
"Cnshing's Law and Practice Of Legislative
Assemblies" and tho decisions In California |
and Nevada, sustain the doctrine contended |
for by us in this instance. Tho doctrine boz |
ing that one ineligible to Office is incapable Of |
being lawfully elected thereto, the converse of |
the proposition should be equally truo that |
ono eligible IN an Office should DO capable Of |
an election thereto. II tho want Of capacity |
TO hold nm Office would vitate an election |
Z conUsrso, tho capacity TO hold an Office would !
rendor valid the election .thereto-at any rate |
II should certainly be circumstance going to |
aid doubtful construction not coming within /
the rule OF adindioated cases.
In wow Of the foregoing premises. orr DON.
clnsioDs are that Judge Berry is eligible TO
the ofico Of Governor beyond the peradven.'
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