State ex rel. Attorney General v. George

The Chief-Justice delivered the opinion of the court:

The Attorney-General of the State files an information against George for a writ of quo warranto, alleging that George illegally usurps the office of Marshal and Collector of Taxes of the town of DeLand, in the county of Volusia. The basis of the complaint is, that George, though elected to these offices, is ineligible because he had not resided in the corporate limits of DeLand six months prior to the election, and was not a registered voter in said town at the time of his election. An alternative writ was issued from this court, to which George responds by a demurrer, founded partly on alleged defects of the information, but mainly on the insufficiency of the facts to sustain the proceeding.

Passing by unimportant matters, we address ourselves to the vital question in the case, to wit: Is a man eligible to office, under the Constitution and laws of this State, in a town of which he has not been a resident for six months, and in which he is not a registered voter ? The argument for the relator against eligibility dwells considerably on the idea that the office of Marshal of a town is a State office, and subject to the same rules applicable to other' similar State offices. The authorities cited seem to sustain the view that municipal officers charged with the duty of preserving the peace and good order of society, and of bringing offend-, ers to punishment, are at the same time State officers. Dillon’s Mun.Cor., sections 58, 60, 210; Burch vs. Hardwick, 30 Grat., 24; People vs. Hurlbut, 24 Mich., 44. But to our apprehension it makes no difference in regard to the question here whether the office was a State office or a strictly municipal office. There is nothing in the Constitution or statutes to distinguish between them in respect to qualifications necessary to eligibility. The simple question, therefore, is, whether, not having had a residence in the town six months, and not being registered therein, the respondent can hold the office to which he was elected ?

The Constitution prescribes no qualifications for office? except for Governor, Senators and members of the House of Representatives, and Judges of the Supreme and Circuit Courts ; and as to these, only the Governor, Senators and members are required to be qualified electors. It is silent as to the qualifications of all other officers. We do not infer from this that the framers of the Constitution were unmindful of the importance of having only such' persons put into office as would be endowed with suitable qualifications. Our inference rather is that they deemed it best to leave that without rigid restriction, trusting that those who were to have the selection of officers would take care that none but fit persons should be selected or appointed; fit, not only in respect'to capacity and character, but also in having citizenship to identify them in interest with the communities in which their official duties were to be performed. Considering the .conditions of population in the State, this would not seem an unreasonable course. The fact that large portions of the State were sparsely settled, but were filling up more or less l’apidly with new inhabitants, and that new towns and cities were emerging from the woods, and in manj’ instances growing at a rate that left the people of one year a minority of those of the next, naturally suggest that it might be impolitic to narrow the field from which officials were to be taken so that none should be eligible who were not eligible to vote—the qualification for voting, among other things, being twelve months’ residence in the State and six months in the county, and registration.

We are satisfied from the history of the convention which framed our present Constitution, in 1885, that the absence of qualifications for officers other than as above mentioned, either for the reason given, or some other, was intentional.. The convention was called “ for the purpose of making an entire revision of the Constitution ” of 1868. Acts of 1885, chapter 3577, section 1. The proceedings of-the convention show that the work of that body was made to conform to the idea of “ revision.” In appointing committees they were designated by names corresponding to-the seventeen Articles of the Constitution to be revised, accompanied by this resolution: “ That the functions of these committees shall be to revise the Constitution in such matters as are indicated by their respective titles, and to consider and report on all matters referred to them.” Con. Journal, p. 31. One of these was a “ Committee on Miscellaneous Provisions,” and by reference to section 22, under that title in the Constitution of 1868, this provision will be found: “ No person shall be eligible to any office unless he be a registered voter.” But this does not appear under that title, or any other, in the new Constitution. Considering that the matter was expressly before the committee, that this provision was dropped, and that the convention acquiesced in so doing, the conclusion is hardly to be resisted that it was dropped purposely; and if so, that the intention must have been not to restrict the election of officers to persons having the full qualifications of a registered voter. Those qualifications as to the length of residence are the same in both Constitutions,.and retaining-them for voters, and not for officers, indicates that in the-view of the convention, when officers were to be elected, the provision for duly qualified electors would furnish sufficient safeguard against the choice of unsuitable persons.

But apart from this, it is held to be the law that “ municipal officers may be elected from non-residents of the corporation where there is po statute or constitution prohibiting it.” See note 3 to section 195, 1 Dillon Municipal Corporations, 222, 3d edition ; State, ex rel., Hardwick vs. Swearingen, 12 Geo., 23 ; State vs. Blanchard, 6 La. Ann. Rep., 515 ; Commonwealth vs. Jones, 12 Penn. St. Rep., 365. In the case here, however, it is not necessary that the rule should be stretched so far. The information does not allege that respondent was not a resident of DeLand at the time he was elected marshal and collector. It only alleges that he had not been residing there six months before his election, adding to this the further allegation that he was not a registered voter at the time of his election. If residence be not necessary, or if residence short of six months be sufficient, it follows that registration is not necessary either, as that cannot be had without the prescribed residence.

The case of the State, ex rel., Off vs. Smith, 14 Wis., 497, in which it was held that an alien was ineligible to the office of Sheriff, although elected to it, is not considered in conflict with the cases before cited. The reason given for the decision is a good one—that ours are governments for the good of the people who compose the citizenship of the country, and it is inconsistent with the nature and spirit of such governments that aliens who owe allegiance elsewhere should be permitted to have a share in the conduct of public or official business.

There is no absolute connection between voters and officers, by which the qualifications for the latter should necessarily be determined by those for the former. Each is regulated to its own end, the former always by special provision, the latter sometimes not at all, except, as in this State the more important political and judicial places; so that, as to all other officers, the people, in the absence of other requirements, are left to their own discretion, limited only by a common understanding, equivalent to law, that prohibits electing to office any persou who is not in some-wise a member of the body politic.

It is our opinion that the facts stated in the information do not render the respondent ineligible to the office he claims, and the demurrer is, therefore, sustained.