While, therefore, it was conceded that the House should not insist upon looking beyond the certificate in determining a prima facie case, it was held that if the party holding the certificate saw fit to offer evidence in addition to the certificate, the House might take notice of it.

§ 225. While it is, as we have seen, true that where a certificate of election is confined to a statement that the person to whom it is given is duly elected, or words to that effect, it is prima facie evidence that such person is entitled to the office, it is also true that where it recites the facts, upon which the certifying officer relies as his justification for issuing it, and where, from those facts, it clearly appears that the person named was not elected, the certificate destroys itself. [Hartt vs. Harvey, 32 Barb. 55.]

CHAPTER V.

OF ELIGIBILITY TO OFFICE, AND OF TENURE.

§ 226. The qualifications for federal offices are fixed by the federal constitution or federal law, and the qualifications for state offices, are fixed by state constitutions or state laws. It is not competent for any state to add to or in any manner change the qualifications for a federal office, as prescribed by the constitution or laws of the United States. Nor can the United States add to, or alter the qualifications for a state office, as fixed by State regulations.

§ 227. The constitution of the United States fixes the qualifications of representatives in congress, in the following words:

"No person shall be a representative who shall not have attained the age of twenty-five years and have 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." (Constitution Art. 1, Sec. 2.) A State law requiring that a representative in Congress shall reside in a particular town or county within the district from which he is chosen, is unconstitutional and void. (Barney vs. McCreery. Cl. & H., 169.)

§ 228. The constitution of Illinois, of 1848, provided as follows:

"The judges of the Supreme and Circuit Courts shall not be eligible to any other office or public trust of profit in this State, or the United States, during the term for which they are elected nor for one year thereafter. All votes for either of them for any elective office, (except that of judge of the Supreme or Circuit Courts) given by the General Assembly or the people, shall be void."

The House of Representatives held that this clause of the constitution of Illinois, so far as it related to the election of member of Congress, was void, because in conflict with the federal constitution, and, also because it was an unauthorized attempt on the part of the State of Illinois to fix or to change the qualifications of Representatives in Congress. Mr. Marshall and Mr. Trumbull, of Illinois, were elected Representatives in the thirty-fourth Congress. They had previously been elected, respec

tively, judge of the Supreme and Circuit Court of that State, for terms which had not expired. This was held to be no objection to their holding the office of Representative in Congress. (Taney vs. Marshall, 1 Bartlett 167. Fouke vs. Trumbull, 1 Bartlett 167. The United States Senate adopted the same rule in Trumbull's case, (ibid p. 619.)

§ 229. The Supreme Court of Pennsylvania has held that the trial and conviction of a sheriff of the offence of bribing a voter, previously to his election, does not constitutionally disqualify him from exercising the duties of his office, because it is not a conviction of "any infamous crime," within the meaning of the constitution of that State. (Commonwealth vs. Shover, 3 Watts and Sergeant, 338, Brightley's Election Cases, 134.) In the opinion in this case will be found an elaborate discussion of the meaning of the terms "infamous crime," and a reference to many authorities upon that subject. It seems that infamous crimes are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, &c.

§ 230. The acceptance for a term of years of an office, the duties of which require the incumbent to reside outside of the limits of a given place, does not necessarily render him ineligible to another office, one of the qualifications of which is residence within such place. If the office accepted is for life, the law presumes that upon its acceptance the incumbent elects to make his residence permanently where its duties are to be discharged, but if it be an office only for a term of years, or for an indefinite period, the presumption is that no change of residence is in

tended, and none of the rights or privileges of his residence are lost by the acceptance of it. (Commonwealth vs. Jones, 12 Penn. State R., 67.)

§ 231. We come now to a question which has been much discussed, and upon which the authorities are somewhat conflicting; it is this: suppose the candidate who has received the highest number of votes for an office is ineligible, and that his ineligibility was known to those who voted for him before they cast their votes, are the votes thus cast for him to be thrown out of the count, and treated as never cast, and should the minority candidate, if eligible, be declared elected in such a case? No doubt the English rule is, that where the majority candidate is ineligible, and sufficient notice of his ineligibility has been given, the person receiving the next highest number of votes being eligible, must be declared elected. Great stress is laid upon the fact of notice having been given, and the reason of the English rule is said to be "that it is wilful obstinacy and misconduct in a voter to give his vote for a person laboring under a known incompetency." (Southwark on Elections, p. 259.) An examination of the English cases will show that in some of them the election was declared void, and sent back to the people, on the ground that there was not sufficient notice of the incapacity of the successful candidate, while in others the minority candidate was declared elected, on the ground that due notice of the ineligibility of the person receiving the majority was given. The following are some of the principal English authorities upon the subject. Rex vs. Monday, Cowp., 537. Rex vs. Coe, Heywood 361. Rex

vs. Bissell, ibid 360. Rex. vs. Parry, 14 East, 549. Regina vs. Coaks, 28 Eg. L. and Eq., 304, 7 Q. B., 406. Heywood on County Elections, 535. Male on Elections, 336. King vs. Hawkins, 10 East, 210. Claridge vs. Evelyn, 5 B. and A., 8. Clarke on Election Committees, page 156. Southwark on Elections, page 259.

§ 232. Although the law of the British parliament, as well as that administered in the courts of that country, recognizes the rule as laid down in the cases just cited, the House of Representatives of the United States has refused to adopt it. See the case of Smith vs. Brown, (2 Bartlett, 395,) in which, in an able report, submitted by Mr. Dawes, chairman of the Committee of Election, the authorities are reviewed, and the conclusion is reached, "that the law of the British parliament, in this particular, has never been adopted in this country, and is wholly inapplicable to the system of government under which we live." And the courts of this country generally take the same view.

§ 233. Thus, in Commonwealth vs. Cluley, 56 Pa. St. R. 270, the Supreme Court of Pennsylvania held that where at an election for Sheriff, a majority of the votes are cast for a disqualified person, the next in vote is not to be returned as elected; and the Supreme Court of California in Saunders vs. Haynes, (13 Cal. 145,) holds the same doctrine and enforces it, by cogent reasoning. And in Wisconsin we have the same ruling in State vs. Giles, (1 Chand. 112,) and in State vs. Smith, (14th Wis. 497. And see opinion of judges, 32 Maine, 597. State vs. Boal, 46 Mo. 528. Cushing Election Cas. 496, 576, and see,