Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1881-03-30
THE LIEUT.. GOVERNORSHIP.
The Supreme Court Refuse to Dust Charley
Gilman Because the Republican Tickets
Did Not Announce His Ineligibity on
Their Face.

Syllabus-A person who receives less than @
plurality of the votes cast at popular election
for lieutenant governor, is not entitled to the
office, though the next highest
candidate who receives such
plurality is ineligible to the office
the fact of such ineligibility not appearing
upon the ballots which he so received.
the consent of the attorney general upon in.
formation of a private party
having no personal interest
in the question distinct from the public
to try the right Of an incumbent of public
Office to hold the same.
Application of relator denied.
OPINION.
The question of granting leave to the relator
without the consent of the attorney general to
file an information for quo warranto against
the defendant to inquire into and determine
his right to the office of lieutenant governor,
which he now holds, Is presented upon the ad.
mission and averments of his answer to the
petition and order to show cause, taking them
to be true. If upon the showing thus made
the relator Is not entitled to the Office under
any circumstances, he clearly has no interest
in any question properly triable by means OF
the writ, and his application should be denied
on that ground alone irrespective of any other
question or consideration.
At the State election, in November 1879, the
relator and respondent were both candidates
for the Office Of Lieutenant Governor, for the
term commencing January l, 1850, having
been put in nomination and supported as such
by their respective parties. The result Of the
official canvass, the correctness of which is
admitted, showed that of all the votes cast
for that office, the respondent received de
clded majority and some &c, 1000 more than the
relator, who was the next highest candidate.
Thereupon the respondent was duly declared
elected, and given O certificate of election, and
he subsequently qualified as such officer.
At the time of his nomination, he was
holding the office of q Representative in the
legislature from the First Representative dis.
trict in the county of Stearns, under an elec-
tion for term extending to January /, 1881,
but prior to the said State election, he re.
signed that office, and his resignation was
duly accepted. In the convention that nomina.
ted him, the fact of his being o
Representative was made known, and
the question OF his eligibility to the of
flee in view of it was discussed with
the result already stated. The discussion was
continued during the subsequent canvass in
the newspapers, and at various public meet
ings held in different parts of the State, his
eligibility being insisted upon by his friends
and supporters and denied by his opponents.
respondent was ineligible to the office, under
article 4, section 8, Of the constitution, which
provides that "no Senator or Representative
shall during the term for which he is elected,
holdany office under the authority of the
United States, or the State of Minnesota, ex-
cept that OF postmaster" and that the fact of
his ineligibility was of such general notoriety
as to be presumably within the knowledge Of
the whole body of electors, SO that all votes
ha tad
although not declared to be void by an express
provision of law.
1t may well be doubted whether the constl-
tutional provision in question was intended as
restriction upon the choice Of the electors in
the selection of their official servants. Claus
es OF that character must receive strict con-
struction. They cannot be extended by impli-
cation. lhe constitution makes every quail
fled elector eligible to every office elective by
the people except as otherwise provided by
some OF its provisions, or by the constitution
and laws Of the United States. (Article Z, sec.
tion ~ In the case of justices of the supreme
and district courts, special provision is made
against their holding any other office under
the United States or this State, and it is also
expressly provided that call votes for either
ofthem for any elective Office under the consti-
tuition, except judicial one, given by the leg
islature, or the people during their continuance
In office, shall be void" (Article O.,
Sec. ll). The clause under consideration con-
talns no such declaratory enactment as to the
effect OF votes given to a Senator or Represen-
tative while in office for any other office. The
ineligibility of person holding the office of
Senator or Representative while in office for
any other office. The prohibition Is against
holding any other office embraced within it.,
but In terms does not 60 to the ineligibility
OF person holding the office Of
Senator or Representative to an election to such
other office. Ineligibility to hold an Office
and ineligibility to an election to it are not
Identical. One may be disqualified from hold
Ing an office at the time of his election thereto,
and yet be eligible to IN election to it, and ii
before he Is required to enter upon Its duties
the disability is removed he may also take and
hold it. The plain purpose of the provision
was to prevent persons holding official rela.
tions with any other department Of govern.
ment, State or federal, from influencing direct.
ly by their presence and votes legislative &C.
ton in matters affecting such, their relations
or their private or personal interest connected
Herewith.
Hence the disqualification was attached 60
.sominic to "Senator or Representa-.
tive" which of itself clearly implies
that it can only continue while the
party affected by 1t remains Senator or Rep.
resentative. When he ceases to be such,
whether by lapse of time, resignation or other.
wise, the disability terminates. The clause
''durlng the time for which he is elected" can
not properly be construed as charging the
scope of the prohibition so as to include per.
sons not in fact members of the Legislature.
vision was 10 prohibit Senators
and Representatives from holding
any other office than postmaster, and not to
| disqualify for definite period of time persons
who may become such whether they remain
In Office or not. The clause may very proper,
ly be construed to mean "during his term ot
office" and this may be the full time during
which the office may be held, or such shorter
period as the Incumbent may consent to hold
| it. The term of every elective Office in the
absence OF any express enactment of law tc
the contrary, may be terminated at the pleas
ure of the incumbent by resignation, or by
the acceptance of an incom patble office
| COnceeding however the incOrrectness o
| these views as to the construction of the CON
stitutonal provision in question and that th,
respondent was In fact legally ineligible to the
office of lieutenant governor, 1t is certain the
right to hold the office cannot be rested upor
the information OF the rslator alone without
| the consent OF the attorney general, unless hs
| shows himself elected to the office BY reason
of his having received the next highest num-
Der OF votes to those cast for his ineligible
competitor.
The REALTORS right to the Office depends upon
| the legal effect of the votes which the respond
ent received, assuming him to have been In
| eligible by reason of tie alleged fact that hi:
term Of Office as Representative had not theu
expired, notwithstanding his resignation, tht
contention on the part Of the relator being
that they were absolute utilities and therefore
| not to be counted or considered in determininp
| the result of the election.
The authorities of both the English and
American courts agree that the ineli
gibility OF candidate who has received
| the highest number of votes for an Office
will not in the absence of any statute declar
| ing them to be void, work the result OF
giving. the election to the next highest candi
date when the voters for the former had nc
| prior actua knowledge of the disqualifyine
fact, together with such other information a:
would raise reasonable inference that they
also knew that the fact amounted
| in law to disqualification rem