The Indianapolis journal., 1883-10-02
RECORD OF THE COURTS.
Proceedings in the Various Courts of
Record Yesterday.
Full Abstract of the Opinions Rendered
by the Judges of the Supreme Court
Work in the Local Courts.
Supreme COurt-Oct. 1.


ELECToRs-JUDICIAL oFFICER-ELIGIBILITY TO
OFFICE OF PROFIT
1O,971. Joseph F. Smith VS.. William Moore.
Benton Q. G.
collars, J.-This case involves the proper con-
structiOn of sec. 10, art. OF the State eopstl-
ton. At the general election in 1882, the ap-
pellant elected TO the Office of county treas
urer, the term beginning Aug 10, 1883. AT
the time of his election appellant was a justice
of the peace, his term of office expiring Nov ~,
1882, which was after the date of his election as
treasurer. At the April election in 1857 ne was
elected, with his knowledge and consent for
second term OF justice of the peace, but never
accepted the office by giving bond or qualifying,
but gave notice of his refusal to accept 1t. The
court below found that by virtue of this second
election to the office of justice appellant was In
eligible TO election to the office of county treas
urer Section l6 is as follows: "NO person
elected TO any Judicial office shall, during the
term for which he shall have been elected, be
eligible to any office of trust or profit under
the State other than judicial once.
Held, when appellant entered upon his term
as justice on Nov. 29 1873, he became during
the continuance of that term disqualified to
hold and perform the duties of any other public
office except one judicial. But this would not
prevent his being elected to an office the term
of which would not begin until after the eXpira-
ton OF the Jndlclai term. GSec. "a WIS az G
% i'd, 90; so i'd l03; 26 Kan. 50; s. O., 40;
Am. r., 301j The WORD "term" in said section
implies that there shall be term by which the
ineligibil1ty shall be measured, and the term can
only begin with the acceptance of the office by
proper qualification. The fact that appellant
elected for a second term as Justice, with his
knowledge and consent, did not prevent his re-
fusing the Office and when he did so he became
eligible TO hold the office Of county treasurer.
Judgment reversed.
Elliott, j., dissenting, in an elaborate opinion,
fortified by numerous authorities, holds that
this court has hitherto given d construction to
said section 16 adverse to that given above.
az Ind, $40; 4 i'd, 93.) The central position
in these cases is that the term eligible
refers to the time of election, and not
lsee also Is Ind, 391, es i'd 592; 35 ID, II; )
Nevada, sec; % Cal, 90; 80 i'd, $50; Mimi.
240; % Wis, SO; IA i'd, 539) The trainers OF
the constitution meant that during the term or
the judicial office no disturbance of the Judges
mind should be caused by political aspirations
officer from the political race. The mischief in
tended to be prevented is that of judge, hold
ing in his hands personal interests and property
rights, with power to favor or annoy and lnJure
parties from entering contest where sueh a
power might give him undue influence, lead to
unjust favOritism and corrupt results. Appel
liant still officer by virtue of prior cleo
tiOn and qualification, and was also an OthGer-
elect at the time OF his election as treasurer. If
acceptance of the office is necessary to lnellgl-
bility such acceptance may be made, as well be-
fore as after the election, and when appellant
was voted for for Justice for a second term, with
his consent this acceptance of the Office.
Courts never use the word elected as including
qualified. @ Mich. 227; Cd Mo-, 80; New,
Ill; "a Ala. 205; 25 Md, 173.
The following cases Were also decided
Matthias Mount VS.. ex rel Rlchey Scott G. @.
Affirmed. Elliott, j.
James Thornton VS.. Lycurgus Barr. Henry G..
c. Reversed. HOwk, j.
Rawson VS.. Pratt, Elkhart c. c.; SlOuter VS..
Hollowell, Warren c. c.; Ingeman VS.. Mobiles
vile township Hamilton Z. c. Rehearing de-
MED.