DEMAREE V. SCATES.

[50 KANSAS, 275.]

PUBLIC OFFICERS, QUALIFICATIONS OF — ELIGIBILITY, MEANING OF.—Where a statute provides that "no person holding any state, county, township, or city office, or any employer, officer, or stockholder in any railroad in which the county holds stock, shall be eligible to the office of county commissioner," the word "eligible" signifies "legally qualified to hold office,” and does not comprehend the two meanings, "capable of being elected,” and “capable of holding office." Hence, even though a person may under the above provision be disqualified for the office of county commissioner at the time of his election, he is entitled to be inducted into the office if his disqualification is removed before the day appointed for entering upon his duties arrives.

ORIGINAL proceeding in quo warranto to test the right of the plaintiff to the possession of the office of county commissioner, which his predecessor refused to surrender to him on the ground that, at the time of his election, he was disqualified to hold the office.

Edwin A. Austin, for the plaintiff.

James K. Beauchamp, for the respondent.

T. S. Brown, of counsel.

HORTON, C.J. The principal question in this case is whether T. E. Demaree was eligible to take the office of county commissioner of Seward County on the ninth day of January, 1893. He was elected on the eighth day of November, 1892. At that time he was the treasurer of the township of Fargo of his county. Paragraph 1622, General Statutes of 1889, reads: "No person holding any state, county, township, or city office, or any employer, officer, or stockholder, in any railroad in which the county owns stock, shall be eligible to the office of county commissioner."

The contention is over the meaning that should be given to the word "eligible" in the statute. This word is determined by law and other standard lexicographers thus: Black: "Capable of being chosen"; "competency to hold office." Bouvier and Anderson: "This term relates to the capacity of holding, as well as that of being elected to an office." Abbott: "The term 'eligible to office' relates to the capacity of holding as well as the capacity of being elected." 19 Am. & Eng. Ency. of Law, 397: "Capable of being chosen "; "implying competency to hold the office, if chosen." Worcester: "Legally qualified"; "capable of being legally chosen." Webster:

AL. ST. REP., VOL. XXXIV. -8

"That may be selected"; "legally qualified to be elected and to hold office." Some law writers define the word as "legally qualified; as, eligible to office"; "legally qualified to hold office"; "electible"; "proper to be chosen ”; “qualified to be elected."

Plaintiff contends that "legally qualified" is the proper definition of the word "eligible," as used in this statute. On the other hand, it is contended by the defendant that "eligible" means "proper to be chosen," "qualified to be elected,” "that may be elected"; that is, the candidate for county commissioner must be eligible to the office at the time of the election.

It is a cardinal rule of construction that the words of a statute should be so construed as to carry out the purpose or intent of the lawmakers. Therefore, if a word in the statute has two or more definitions according to the standard lexicographers, that definition should be given in its construction that will best subserve the general purpose for which it was enacted. The literal or strict meaning of a word sometimes gives way to its general import. "The sense and reason of the law are the soul of the law": Intoxicating Liquor Cases, 25 Kan. 751; 37 Am. Rep. 284.

In Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301, there was construed the provision of our constitution ordaining that no person who has ever voluntarily borne arms against the government of the United States shall be qualified to hold office in this state until such disability is removed by a vote of two thirds of all the members of both branches of the legislature. In that case it was said: "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 ineligble or incapable of being elected, and one who may hold the office. . . . . 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 neligibility is not as to the election, but only to the holding of the office, such ineligibility is cured by the subsequent removal of the disqualification."

Although the statute under consideration uses the word "eligible" instead of the words "qualified to hold office," contained in the provision of the constitution referred to, yet, if

"legally qualified to hold office" is the meaning that may be given to "eligible," the statute and the provision of the constitution may be construed alike, without difference; that is, as going only to the holding of the office. If the statute is a prohibition merely against any person holding any state, county, township, or city office, or any employer, officer, or stockholder in any railroad in which the county holds stock, from being elected to the office of county commissioner, then a persou "eligible at the election," that is, "capable of being legally chosen," might be elected to the office of county commissioner, and afterwards accept a state, county, township, or city office, or become a stockholder in a railroad in which the county has stock. If "eligible" is to be construed as to the capacity of being chosen or elected, the statute would be of no actual benefit. It would permit that to be done which it was evidently the purpose of the lawmakers to prevent. They did not desire a county commissioner to hold another office, or that he should be a stockholder in a railroad in which his county is interested. They evidently intended to prohibit a county commissioner, while holding that office, from being a state, county, township, or city officer, and also intended to prohibit him, while holding such office, from being an employer, officer, or stockholder in any railroad in which his county owned stock. This was the evil sought to be avoided by the statute. Therefore, to construe the word "eligible" as meaning "legally qualified to hold office," seems to us to better subserve the spirit, as well as the letter, of the statute. Even if we should construe "eligible" as "electible," or "proper to be chosen," or "capable of being elected," then, to carry out the purpose of the statute, as already stated, we must also give "eligible" the additional definition of "legally qualified," or "capable of holding office," or of "acting as a member," because it will not comply with the spirit of the statute to rule that if a person is elected county commissioner, although eligible at the time of his election, he may, after his election, accept the other offices referred to in the statute, or become connected with a railroad in which the county owns stock. To give these two different definitions to the word "eligible" in the same statute, and at the same time, would be an unusual construction. Generally, a word in the same statute is not construed in two different ways. "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": McCrary on Elections, sec. 311.

A person may, therefore, hold the office of county commissioner even if, when elected, he is disqualified under the provisions of the statute. If he becomes qualified after the election and before the holding, it is sufficient. Among the authorities which are generally cited to support the definition of “eligible” as meaning "the capacity of being elected," are Carson v. McPhetridge, 15 Ind. 327; Howard v. Shoemaker, 35 Ind. 111; and Jeffries v. Rowe, 63 Ind. 592. More recently (1883) these decisions have been carefully re-examined by the supreme court of Indiana, in Smith v. Moore, 90 Ind. 294. In that case, a provision of the constitution of Indiana was construed. That provision reads: "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 a judicial office."

"Eligible" was defined as meaning "legally qualified," and "eligible to any office," as used in the provision of the constitution, was construed as having reference to the qualification to hold office, and not to the choosing or election to such office. One of the judges, Elliott, J., dissented; but that judge, in the case of Brown v. Goben, 122 Ind. 113, decided, under all the circumstances, it was best to adhere to the decision in Smith v. Moore, 90 Ind. 294. He said in his opinion, among other things, that,

"We conclude, therefore, that it must be held to be the settled law of this state that the disqualification must exist at the time the term of office begins, and that the right of the claimant is not affected by the fact that at the time of his election he was ineligible." The syllabus in that case reads: "The disqualification must exist at the time the term of office begins, the right of the claimant not being affected by the fact that at the time of his election he was ineligible."

In the case of Vogel v. State, 107 Ind. 374, the judge writing the opinion (Zollars, J.), speaking for the court, said: "The constitution provides that '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 a judicial office': Rev. Stats. 1881, sec. 176. That the office of justice of the peace is a judicial office, under our constitution and statutes, is well settled. It was

held in the case of Smith v. Moore, 90 Ind. 294, that a judicial officer may be elected to an office not judicial, the term of which will begin after the expiration of the judicial term; in other words, that the disability imposed by the constitution has reference to the taking and holding of the office, and not to the election. That case has been followed and approved in subsequent cases. Marks was eligible to take and hold the office of township trustee, if the term began after the expiration of his term as justice of the peace, although suct term may not have expired at the time of the election."

A part of the syllabus reads: “A judicial officer may be elected to an office not judicial, the term of which will begin after the expiration of the judicial term, the disability imposed by the constitution merely having reference to the tak ing and holding of the office."

The court at that time consisted of five judges. The decis ion was unanimous. These decisions of Indiana referred to must be considered of greater force because the earlier decisions of that state construed "eligible to office" as relating "to the capacity of being elected." A more thorough examination of the whole subject induced that court to change its former decisions, and to construe "eligible" as "going only to the holding of the office," and not to mean "incapable of being chosen."

The case of People v. Hamilton, 24 Ill. App. 609, is in line with the later Indiana cases, and "eligible to the office of alderman" is construed to mean "legally qualified." The disqualification referred to in the statute in that case is construed to apply to the office and not the election.

In addition to the earlier Indiana cases, we are also cited to Searcy v. Grow, 15 Cal. 117, which was followed in People v. Leonard, 73 Cal. 230; State v. Clarke, 3 Nev. 566; Taylor v. Sullivan, 45 Minn. 309; 22 Am. St. Rep. 729; and In re Corliss, 11 R. I. 638; 23 Am. Rep. 538. The decisions in California and Nevada are commented upon in Smith v. Moore, 90 Ind. 294, and the reasoning by which the conclusions were reached in those cases was not satisfactory to that court. The same may be said of the reasoning in Taylor v. Sullivan, 45 Minn. 309, 22 Am. St. Rep. 729, as applied to the statute under consideration. In the Nevada case, which construes the word "eligible" as meaning "incapable of being legally chosen," the judge writing the opinion says: "The etymology of the word and the meaning generally given to it