
    Fletcher P. Privett v. Charles D. Bickford.
    1. Political Disability1 — Removal of, Before Taking Office. Section 2 of article 5 of the constitution of the state, as amended November 5, 1867, ordaining that no person who has ever voluntarily borne arms against the government of the United States, or in any manner voluntarily aided or abetted in the attempted overthrow of the government, shall be qualified to hold office in this state, until such disability shall be removed by law, operates upon the capacity of the person to take office; and if the disqualification is removed subsequently to the election and prior to the assumption of the office, the person, though ineligible under said provision at the time of the election, will not be disqualified when taking the office.
    
      2. Sheriff — Removal of Disability to take the Office. One P., who had voluntarily borne arms against the government of the United States during the late rebellion, at the election on November 2, 1880, was ineligible under the constitution of the state to hold office. At such election, however, he was a candidate for the office of sheriff, and received a majority of the votes of the electors therefor. Afterward, and before he received his certificate of election, and before demanding possession of the office, his disability was removed by law. Held, That he was entitled to the office of sheriff, and to enter upon and discharge its duties after the removal of such disability.
    
      Original Proceedings in Quo Warranto.
    
    Action brought in this court by Fletcher P. Privelt against Charles D. Bichford, to try the title to the office, of sheriff of Harper county. The opinion, filed July 26, 1881, contains a sufficient statement of the facts.
    
      Grove & Shepard, for plaintiff.
    
      Davis & Jetmore, for defendant.
   The opinion of the court was delivered by

Horton, C. J.:

Upon the question of vacancy, this court recently decided, in Privett v. Stevens, 25 Kas. 275, that on the second Monday of November, 1880, there was a vacancy in the office of sheriff in Harper county; that at such election it was lawful to elect a sheriff to fill such vacancy; and therefore nothing further need be said upon the first defense. (

The preponderance of the evidence produced upon the trial tends, we think, to support the claim of defendant, that the plaintiff voluntarily bore arms against the government during the late rebellion, but as the legislature of the state, during its session of 1881, removed such disability (Laws of 1881, ch. 106, p. 209), the question is presented whether a person ineligible under the provisions of our constitution at the election for the office of sheriff, is ineligible to hold the office, provided the disability be removed or cured prior to his receiving his certificate of election and his demand for the possession of the office. Upon this question the weight of authority seems to be, and in our opinion is the better doctrine, that where the disability concerns the hold°®ce) and is not merely a disqualification *° eiectefi to an office, a person who is ineligible at the election will be entitled to enter upon and hold the office, if his disability be removed or cured before the issuance of the certificaté, and before entering upon the discharge of the duties of the office for which he is elected. The provision of our constitution is, that no person who has ever voluntarily borne arms against the government of the United States, or in any manner voluntarily aided or abetted in the attempted overthrow of said government, except all persons who have been honorably discharged from the military service of the United States since the first ■day of April, 1861, provided they have-served one year or more therein, shall be qualified to vote or hold office in this state, ■until such disability shall be removed by a law passed by a vote of two-thirds of all the members of both branches of the legislature.” (Amendment to the constitution, adopted Nov. 5, 1867.) This provision operates upon the capacity of the person to take office, rather than as a ■disqualification to be elected to an office. So the disqualification is to the holding of the office, and not to the election. There is a marked distinction between a person who is ineligible or incapable of being elected, and one who may hold the •office. If a person may hold the office, he may be elected while he is under disqualification; and if he becomes qualified after the election and before the holding, it is sufficient. In the one case the disqualification strikes at the beginning of the matter — that is, it prohibits the election of an ineligible candidate; in the other case, the disqualification relates only to the holding of the office. The constitution expressly provides that the disability may be removed by a vote of two-thirds of all the members of both branches of the legislature. When the electors of Harper county voted for the plaintiff they had the right to look at and to build their expectation's upon this provision, because, although at the election the plaintiff was ineligible to hold office, yet they knew that the legislature had the right to remove the disability, and if removed, he was entitled to the possession of the office to which he was preferred by the majority of the electors. If our constitution provided that the plaintiff was ineligible to be elected, instead of being ineligible to hold office, the contention of the defendant would be good; but as the ineligibility is not as to the election, but only the holding of the office, such ineligibility is cured by the subsequent removal of the disqualification. In support of these views we refer to the following:

Section 2 of article 1 of the constitution of the United States ordains that: “No person shall be a representative [in congress] who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.”

Mr. John Y. Brown, of Kentucky, who was elected to the house of representatives of the thirty-sixth congress when he had not reached the age of twenty-five years, and was for that reason ineligible, did not take his seat at the first session; but being of the requisite age at the second session, he took his seat unchallenged, by force of the very votes cast for him when he was in fact ineligible.

Sec. 6 of the same constitution ordains that “ . . . No person holding any office under the United States shall be a member of either ^house [in congress] during his continuance in office.”

Mr. Robert C. Schenek was elected to the thirty-eighth congress in October, 1862, and on the following March was commissioned as a major general of volunteers, and entered upon the discharge of his duty, but resigned the office before the meeting of congress in December, 1863. This raised the question whether he could be admitted to a seat, and the answer was in the affirmative. The committee of elections, in its report on the subject, said:

“ The inhibition attaches the moment the member enters upon the discharge of his duties as such, and nothing is gained by an earlier application of it.”

■ Again, sec. 3 of the fourteenth amendment of the same constitution prescribes:

“No person shall be a senator or representative in congress, or elector of president or vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath as a member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But congress may, by a vote of two-thirds of each house, removed such disability.”

Under this provision of the amendment, Judge McCrary, in his work on the Law of Elections, says :

“ It has been the constant practice of the congress of the United States since the rebellion to admit persons to seats in that body who were ineligible at the date of their election, but whose disabilities had been'subsequently removed. ” (2d ed., p. 232, § 258.)

On the 8th of November, 1870, one Murray was elected clerk of the board of supervisors in the county of Waukesha, in Wisconsin, for the term of two years, to commence on the first Monday in January, 1871. At the time of such election Murray was an alien, and had not declared his intention to become a citizen of the United States. On the 14th day of November his disability was removed by appropriate proceedings in the circuit court for Milwaukee county, he then becoming a citizen of the United States. Thereafter he commenced an action to obtain possession of the office. The supreme court of Wisconsin held that he was entitled to the office to which he was elected, and decided that a person disqualified to take office at the time of the election would, in the absence of any statutory or constitutional provision to the contrary, be entitled to enter upon and discharge its duties, provided his disability be removed before the commencement of the term for which he is elected. (State v. Murray, 28 Wis. 96; State v. Trump, 50 Wis. 103; 1 Cushing’s Law and Practice of Legislative Assemblies, 2d ed., §§78, 82)

The conclusion reached by us also fits the intimation in Wood v. Bartling, 16 Kas. 109, that where a majority of the electors vote for an ineligible candidate, the election is not a nullity. In England, it has been held that where electors have personal and direct knowledge of the ineligibility of the majority candidate, the votes cast for such candidate are void, and the minority candidate is elected. In this country, the great current of authorities sustains the doctrine that the ineligibility of the majority candidate does not elect the minority candidate, and this without reference to the question as to whether the voters knew of the ineligibility of the candidate for whom they voted. It is considered that in such a case the votes for the ineligible candidate are not void. Therefore the votes cast for the plaintiff were properly counted; and although' ineligible to hold office when the votes were cast for him, his disability having been legally removed, he became legally qualified to accept the place which the will of the majority desired him to fill.

Judgment will be entered in favur of the plaintiff for the possession of the office of sheriff, and all the costs in the case are hereby adjudged against the defendant.

All the Justices concurring.  