The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-08-15
Question Is Raised Against
Judge w. 1. Stuart.
Office May Bar Him from Con-
gressiOnal Race.
ATTORNEYS DISAGREE.
Some Saw Clause in Constitu-
tiOn Is Invalid.
s. r.. Peters Was Elected Con-
gresham While Judge.

Since the announcement of the cam
didacy OF Judge W. J. Stewart, of Troy
FOR the Republican nomination in the
First district against Congressman Cur
tbs, the question has been raised as to
Judge Stuart's eligibility for the office.
1t is alleged by some attorneys that
district judge is prohibited by the con-
Btitution Of the state from holding any
other Office during the time for which
he is elected and as Judge Stuart's
term will not expire until three years
from next fall. it is argued that he can
not run for congress next year.
On the other hand there are attorneys
who say that it has been held that the
state cannot prescribe. either in its con-
stitution or statutes, the eligibility of
federal officer. and congressman is
federal official
The fact that the provision of the
constitution has twice been abrogated in
this respect seems to lend weight to the
aatter allegation. One Of these cases
was exactly parallel to that Of Judge
Stuart.
When S. r. Peters Of Newton was
first elected to congress from the Sew
enth district he was on the bench as d
district judge. His opponent was S. NJ.
Wood. Wood. it is stated, brought an
injunction suit to keep Peters from get
ting his certificate of nomination. and
gress. In both instances it was held
that while the constitutional provision
was good as to state offices. the state
could not place limit on the eligibility
Of persons for federal offices.
The other case in which the constitu-
tional provision was ignored was when
David j. Brewer was appointed to the
federal bench. He was on the state SUI
preme bench at the time and was ad-
vanced to the federal bench during his
term Of office as a state judge.
If the constitutional provision bars
Judge Stuart from running for congress,
st would also bar Chief Justice John
Eton and Justice Pollock from being
candidates for the federal bench, and
that question has never been raised. The
same provision applies to both supreme
and district judges. 1t is in section Is,
article 8. of the constitution and reads
Such justices or judges shall receive no
fees or perquisftes nor hold any other
office of profit or trust under the authority
of the state or the United States during
the term of office for which such justices
or judges shall be elected"
Because Judge Peters was elected and
seated the legislature of 1883 PASSED a law
ito preserve the purity of the judiciary"
but the only portion Of it now remaining
IN force prohibits election boards from
counting ballots cast for district judges
or supreme justices for any office except
a judicial one. 1t is section 1888 of the
general statutes Of 1901 and reads as fol-
"All ballots or votes cast at any election
for any person holding the office of judge
OF the district court or justice of the SUI
preme court. except for judicial office.
shall be deemed and held to be void and
shall not be counted by the judges snd
clerks at any election. nor by any canvass
ing board, nor shall any record Of the same
be made by any canvassing board. nor any
certificate Of election Issued thereon"
This would prohibit a district Judge from
having any votes for him counted If he
held the office at the time. of the cleo
tion. but IL is pointed out that a district
judge can resign and he is no longer dis
trict Judge and that If he resigns before
the election the election board would count
his votes.
Il looks as though this Is a question
which will give the lawyers a chance to
quarrel for some time. II IS quite likely
too, that their views are likely to be guided
gressiOnal race.