The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-02-21
They MAY SERVE.
CONTINUED from Page one,

Kansas and the following year Judge
Ewing accepted colonelcy In the lltn
regiment of Kansas volunteers by APP
pointment Of Edwin M. Stanton, secre-
tary of war, and resigned the Office OF
chife justice. Nelson H. Cobb was ap-
pointed to succeed him at a time TOD
shortly prior to the election to permit
the election of a successor. On the the
DRY that Judge Ewing's acceptance Oh
the colonelcy operated ipso facto 10
vacate his office as chief justice, one
John H. Watson ran for the office or
chief justice at the election and secured
some votes, and the state board OF can
vassers gave him a certificate OF cleo
ton and quo warranto was brought by
the attorney general in the name OF
the state challenging the right OF Chlef
Justice Cobb to continue In OFFICE, anu
it became necessary for the supreme
court to discuss to some extent the
questions herein considered. me SUI
preme court admitted that the constltu-
tional provision restricting state judges
from holding or enjoying other onlces
during the terms for which they had
been elected was totally ineffective ard
unenforcible as to offices and created oy
the constitution or laws Of the state
of Kansas. Doubtless there might oe
valid penalty, such as forfeiture or
the judicial office, for accepting an
other office under the national govern
ment.
Again in state ex rel against Gill
more, Goth Kansas, 551 an act OF the
legislature Of the state of Kansas super
adding qualifications to those spec1fled
in the constitution Of the state of KAN
sas for membership in the legislature or
the state of Kansas, was considered
and it was there held that the state leg
islature could not add the qualification
Of sobriety to the qualifications defined
by the constitution of the state Of Kan
sas requisite to hold the seat in the leg
islature.
Not for State Offices.
'fIt is undoubtedly true that for all
offices created by the constitution OF
the state of KansasNand by the laws of
the state of Kansas, the justices of the
supreme court and judges of the d1stric.
courts of this state are ineligible to be-
come candidates to be elected to CT to
hold any other office than a judicial
office during the terms for which they
were elected either as justices or judges,
and this would hold true whether they
resigned their offices as justices Of the
supreme court or judges of the district
courts. The disqualification would con-
tinue. But as to offices created by the
national government, by the national
constitution or statutes, our Constltu-
tional provision disqualifying our JUS
tees and judges has no application AS
ing of ballots and the making of a rec
ord of votes cast for any person holding
the office of justice or judge, the scope
of that act must be limited and restrict
ed to offices created by the constitution
and statutes of the state of Kansas.
That Is to say, a justice of the supreme
court, or a judge of a district court,
may not become candidate for COVER
nor, nor state treasurer, nor county at
torney, nor county assessor during the
term for which he was elected as jus
tice or judge, and his resignation of his
judicial office would not cure his in
eligibility; but as to the office of Unit
ed State senator or congressman or
any office created by the constitution
or statutes OF the United States, he may
lawfully become a candidate and law
fully be elected thereto, anything in the
constitution, or laws of the state of Kan
sas to the contrary Notwithstanding.
''Our Kansas statute of 1888, for
bidding the counting or recording of
voters, does not apply to elections of
members of congress and matters
pertaining thereto such as a primary
election, and the refusal to count the
votes or to do any act restricting the
right Of citizensof the United States
to run for such office or to hold such
office, or to vote for a person for such
office, and all such acts are grievous
offenses under section 1897, 5508 and
$50 of the compiled statutes of the
United States of 1901.
"As a matter Of operative con-
it may be noted as fact
of Kansas history that the restriction
in the Kansas constitution did not
prevent the election to congress OF
Judge Peters of Newton, Kansas
district judge, some twenty years ago;
and neither did the state law against
counting of votes, or the state law
regulating the printing of the general
ballots prevent the nomination and |
recent election of Hon. Edward Madi- |
son, congressman from the Seventh |
district Judge Madison resigned from |
the district court during his canvass
for the office of congressman. but his
resignation did not remove any al |
legged disability, for the constitution of
Kansas, if it were applicable to his
case, would bar him for the entire |
term for which he was elected as dis
trict judge-four years. A resfgna- |
ton would not cure any such consti- |
disability.
"In fine, a judicial officer of the |
state of Kansas may lawfully become |
a. candidate for member of congress, |
and it Is a crime under the laws of
the United States to do any act deny
ing or impeding his right so to do |
under cover of any state law.