St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-07-10
INSPECTOR sUTToN's CASE.
FORMER ATTORNEY GENERALS
ALSO SEEMED TO BE BE-
FOGGED
BY CONSTITUTIONAL CT
CLAUSE
Prohibiting State Senator's and
Representatives From Holding
Other Offices During Term.

granted the request made by the sta
tionary engineers of Minneapolis for
the use of his name in quo warranto
proceedings to test the right of State
Boiler Inspector Sutton to hold his
position. The case will now be taken
up by the supreme court in the Octo-
Der term. The attorney generals opin-
ion is as follows:
l am requested to file an informa-
ton in the nature of a quo warranto
against Hon. John B. Sutton to test
his title to the office of state boiler in
spector, TO which he was appointed
by the governor of this state in the
month of May of the present year.
AT the last general election Mr.. SUIT
ton was elected a member of the house
of representatives from the Twenty
third legislative district, and there
upon duly entered upon and continued
in the discharge of the duties thereof
until his resignation therefrom, occur
ring short time prior to his said ap-
pointment. His title to his present
office is assailed on the ground that he
was ineligible to such appointment, by
reason of the prohibition contained in
the constitution of Minnesota, article
4, section g. which, so far as material,
is as follows: No senator or repre-
sentative shall, during the time for
which he is elected, hold any office
under the authority of the United
States or the state of Minnesota, eX-
cept that of postmaster.
1t is contended that during the period
of two years from and after his induc-
ton into Office, a member of the legis-
lature is ineligible to hold any other
office save that of postmaster, and that
such ineligibility cannot be overcome
by resignation, or otherwise. Although
the question has long been deemed res
adJudicata in this department. l de-
termined, in view of its great public
Importance. to afford the gentlemen
an opportunity to be heard upon it, and
accordingly provided a day for hear
ing, at which the subject was
THOROUGHLY DISCUSSED
in all it's various lights. Whenever the
question has heretofore engaged the
attention of the attorney general,
whether as to elective or appointive
off1ces, it has invariably been held that
the prohibition of the constitution was
designed merely to prevent ones hold
ing another office during his inc1Ir1-
bency Of the office of senator or rep
resentative. In the TWO leading mat
tiers heretofore considered in this de-
partment-in re Paige and in re Gilman
it was held that as to an elective
officer the disability ceases upon resig-
nation. The same doctrine has on sew
eral occasions been extended to an
pointiVe officers.
The case of Barnum VS.. Gilman. 81
Mimi, 465, is relied upon as an au-
thorlty in support Of Mr.. Sutton's
claims. Strictly speaking, that case
really decides that one not receiving a
majority of votes cast for a given office
has no such interest therein as entities
him to call in question his opponents
title thereto. What was said in that
case as TO the eligibility of the re-
spondent was really obiter, and was
SO regarded by the chief justice, who
for that reason refused to concur in
the views expressed in the majority
opinion. However, it cannot be de-
MED that that case has quite generally
been regarded as decisive of the ques-
ton, and no doubt has greatly infiu-
enced the more recent views of this
Office.
L have on several occasions. been
constrained to adopt the views ex-
pressed in the earlier decisions of NV
predecessors, not SO much because of
my approval of the construction which
had been placed upon the constitu-
ton, as by force of the rule stare
declSiS. But in the matter of Jones re-
Gently considered, l expressly stated
that l should not hesitate, whenever
| the public interests might seem to re-
quire, to submit the question to the
courts. 1t certainly cannot be said
that the question is free from doubt or
that the reasoning of this office in
prior cases will receive judicial sane
ton. Indeed it is somewhat signifi-
cant to note the
EXPRESSIONS OF DOUBT
with which both of the leading opin-
ions above referred to are character
lied. Thus in re Paige it was said:
Hence, whatever may be the rule as
regards appointive offices, whether the
presidents of a legislative and execu-
tive character heretofore established
| in relation to them are correct or in
| correct, it seems to me beyond reason
! able controversy that the clause in
| question cannot be construed as limit
ing or in any manner restricting the
| people in their choice of elective of
! ficerS or in voting for whomever they
| may deem best fitted and qualified to
serve them in situations of public trust
! and confidence. And IN re. Gilman it
| was said: l must admit that the rea-
/ soning of my predecessors on this ques-
| ton does not wholly satisfy my judg-
ment-an infirmity of the latter rather
| than any defect in the logic of the
former-and prior to examining the
records of my office I was impressed
with the idea that Mr.. Gilman was
ineligible to the Office of lieutenant
governor. 1 proceeded on the theory
that the trainers of the constitution
meant just what the language used
naturally imports, and that a member
should not be elected to or hold any
other office during the time for which
he was elected; that the. object of the
constitution was to take away from
members all temptation to convert the
legislature into hot-bed of political,