§ 612. Act of candidate. The duties required of public officers are many and vary with the nature of each office. Some collect and disburse the public moneys, others enact laws, others construe them and still others perform administrative and executive duties. In order to secure the proper performance of these duties respectively, the law may require as qualifications that highest excellency and ability which is necessary. This principle applied eliminates as candidates for office, controlling and handling public moneys, those persons who have been defaulters, embezzlers or have committed other crimes or misdemeanors, the nature of which would incapacitate them from honestly, efficiently and safely performing these duties.113 113 Taylor v. The Governor, 1 Ark. 21; Trustees of Town of Gillett v. People, 13 Colo. App. 553, 59 Pac. 72, construing § 9 of the corrupt practices act, Laws 1891, p. 168. Cawley v. People, 95 Ill. 249; Shuck v. State, 136 Ind. 63, 35 N. E. 993; Carrothers v. Russell, 53 Iowa, 346; State v. Watkins, 21 La. Ann. 631; Hudspeth v. Garrigues, 21 La. Ann. 684; State v. Reid, 45 La. Ann. 162, 12 So. 189; State v. Dart, 57 Minn. 261. The eligibility of a person for office during the remainder of a term is involved in removal proceedings which may be prosecuted for the purpose of determining that eligibility. The removal of a county treasurer was sought in this case for misfeasance in office. On the question above the courts say: "But we are of the opinion that he was not eligible for reappointment while under suspension, or during the pendency of the proceedings. The removal proceedings cannot be nullified or reversed in that manner. Such removal proceedings are not merely for the purpose of ousting the person holding the office; they include a charge that he has forfeited his qualification for the office for the remainder of the term. They are brought to declare a forfeiture of a civil right, his eligibility, his qualification to hold that office for the rest of that term. The proceeding is not brought for his removal from a day or a week or a month of his term, but from the whole of the remainder of his term, and the final order of removal is not made for his removal from a day or a week or a month of his term, but from the whole of the remainder of his term. Nothing less is involved in the proceedings. Whether the voters at the polls should condone the offense by which he forfeited his office it is not necessary here to decide. We are of the opinion that the county commissioners could not do so." State v. Dart, 57 Minn. 261, 59 N. W. 190; State v. Bersch, 83 Mo. App. 657. The offense of selling lottery tickets cannot be classed with misfeasance in office or bribery and does not, therefore, disqualify a delegate to the municipal assembly. Hoskins v. Brantley, 57 Miss. 814; State v. Moores, 52 Neb. 770, 73 N. W. 299. Construing Constitution, art. 14, § 2, which provides "that any person who is in default as collector and custodian of public The act of dueling has been held to evidence such lack of a fine sense of honor and good morals as to incapacitate those who may have participated in a duel or the sending of a challenge from holding certain prescribed offices.1 114 It is a sound proposition without doubt that the duties of a public office should be performed by those who have always been in sympathy with the government, its traditions and policies, and laws prohibiting those who have engaged in an open or overt act against the government are unquestionably constitutional and the condition of continuous allegiance may be a necessary qualification for office.115 money or property shall not be eligible to any office of trust or profit under the Constitution or Laws of this state" and holding the office of mayor of a city of the metropolitan class an office of "trust or profit." State v. Moores, 56 Neb. 1, 76 N. W. 530; Attorney General v. Marston, 66 N. H. 485, 22 Atl. 560, 13 L. R. A. 67; People v. French, 102 N. Y. 583. Com. v. Walter, 83 Pa. 105. It is not necessary that a person shall be convicted of an offense before proceedings can be begun for his removal from office. The word "qualify" as used in the Constitution, is used in its ordinary or proper signification. Pucket v. Bean, 58 Tenn. (11 Heisk.) 600; State v. Humphreys, 74 Tex. 466, 12 S. W. 99, 5 L. R. A. 217. Where one promises in case of his election to an office to serve for less compensation than the lawful fees, it does not disqualify him from holding such office under Constitution Tex., art. 16, § 1, 5, which prohibit the offering of inducements to procure votes. State v. Common Council of Watertown, 9 Wis. 254. The reappointment of an officer with knowledge of his previous misconduct is a condonation of such so far as it fixes the right to hold office. But see People v. Goddard, 8 Colo. 432. The Colorado Constitution does not in terms disqualify persons from holding of fice because of a resort to corrupt means to obtain it. See, also, Dassey v. Sanders, 17 Ky. L. R. 972, 33 S. W. 193. 114 Matter of Dorsey, 7 Port. (Ala.) 294; Anderson v. State, 72 Ala. 187; State v. Buchman, 18 Fla. 267; Morgan v. Vance, 67 Ky. (4 Bush) 325; Barker v. People, 3 Cow. (N. Y.) 686; Royall V. Thomas, 28 Grat. (Va.) 130. 115 Payne v. City of San Fran. cisco, 3 Cal. 122; Matter of Office of Attorney General, 14 Fla. 277; People v. Taylor, 57 Cal. 620; Matter of Executive Communication, 12 Fla. 651; People v. Perkins, 85 Cal. 509, 26 Pac. 245; State v. Van Beek, 87 Iowa, 569, 54 N. W. 525, 19 L. R. A. 622. The existence of a contest is a legal excuse for not qualifying within the time prescribed by law. State v. Watkins, 21 La. Ann. 631; Hudspeth v. Garrigues, 21 La. Ann. 684; State v. Matheny, 7 Kan. 327; State v. Barnes, 51 Kan. 688, 33 Pac. 621; Privett v. Stevens, 25 Kan. 275. One who has served in the rebel army but not voluntarily is eligible to hold the office of sheriff. People A person may be also disqualified from holding or becoming a candidate for a particular office because of the fact that he is now holding a certain designated one. This rule or principle proceeds upon the theory that one cannot, because of physical limitations, efficiently perform the duties of more than one public office.116 The interests and duties of two offices may also be so diverse and incompatible that no one should be permitted to hold them both; 117 it being assumed that the duties of one would be neg v. Miller, 16 Mich. 56; State v. Cosgrove, 34 Neb. 386, 51 N. W. 974; Cordiell v. Frizell, 1 Nev. 130; People v. Watts, 73 Hun, 404, 26 N. Y. Supp. 280. The failure to take an oath required by law does not of itself vacate an office. Worthy v. Barrett, 63 N. C. 199; State v. Kraft, 18 Or. 550, 20 Or. 28, 23 Pac. 663. The existence of a contest extends the time for qualification. Branham v. Long, 78 Va. 352; State v. Ruff, 4 Wash. 234, 29 Pac. 999, 16 L. R. A. 140; Attorney General v. Elderkin, 5 Wis. 300; State v. Knight, 82 Wis. 151, 50 N. W. 1012, 51 N. W. 1137. But see Ross v. Williamson, 44 Ga. 501. The failure to give a bond and take the oath required by law and within the time required must be the fault or failure of the officer. The fact of the failure alone is not sufficient to vacate the office. 116 Howard v. Shoemaker, 35 Ind. 111; Horton v. Watson, 23 Kan. 229, construing Kansas Const. art. 9, § 3, which provides that no person shall hold the office of county treasurer for more than two consecutive terms. State v. Montgomery, 25 La. Ann. 138. The constitutional prohibition against a person holding more than one office does not prevent a constitutional officer from holding a municipal office. State v. Ply. mell, 46 Kan. 294; Taylor v. Com., 26 Ky. (3 J. J. Marsh.) 407; Rodman v. Harcourt, 43 Ky. (4 B. Mon.) 224; Justices of Spencer County Court v. Harcourt, 43 Ky. (4 B. Mon.) 499; Bouanchaud v. D'Hebert, 21 La. Ann. 138; State v. Arata, 32 La. Ann. 193; State v. Sutton, 63 Minn. 147, 65 N. W. 262, 30 L. R. A. 630; Brady v. West, 50 Miss. 68; State v. Draper, 45 Mo. 355; State v. Weston, 4 Neb. 234. The office of secretary of state and adjutant general can be held by the same person at the same time as such condition does not conflict with Nebraska Constitution providing that the secretary of state shall not receive to his own use "any fees, costs, perquisites of office or other compensation." State v. Sadler, 25 Nev. 131; State v. Parkhurst, 9 N. J. Law (4 Halst.) 427; State v. Brown, 5 R. I. 1; In re Corliss, 11 R. I. 638; Calloway v. Sturm, 48 Tenn. (1 Heisk.) 764; Carr v. Wilson, 32 W. Va. 419, 9 S. E. 31, 3 L. R. A. 64. A person though ineligible for reelection as governor of the state by reason of a constitutional provision limiting the term of office to four years and making one ineligible to re-election can continue to discharge the duties of his office after the expiration of his term under art 4, § 6. 117 Preston v. United States, 37 Fed. 417. The offices of crier and lected or improperly performed because of the interest or nature of the other. Still another reason sustaining this rule is to be found in the proposition that it is not desirable nor expedient to place upon one individual, or set of individuals, the burden of messenger of the United States District Court are not incompatible and one person may perform the duties and receive the salaries of both. See, also, United States v. Saunders, 120 U. S. 126; State Bank v. Curran, 10 Ark. 142. The office of sheriff and justice of the peace cannot be held by the same person at the same time. Vogel v. State, 107 Ind. 374. A judicial officer under the Indiana Constitution is not eligible to a political office the term of which begins before the expiration of the judicial term. Abrey v. Gray, 58 Kan. 148, 48 Pac. 577. The office of city clerk and clerk of the District Court can be held by the same person in the absence of constitutional or statutory inhibition. Rodman v. Harcourt, 43 Ky. (4 B. Mon.) 224; Justices of Spencer County Court v. Harcourt, 43 Ky. (4 B. Mon.) 499; Hoglan v. Carpenter, 67 Ky. (4 Bush) 89. Postmaster and judge of county court are incompatible offices. Stubbs v. Lea, 64 Me. 195; Justices Opinion, 68 Me. 594; Horthway v. Sheridan, 111 Mich. 18, 69 N. W. 82. Acceptance by a person of an office incompatible with one then held ipso facto vacates the latter. Attorney General v. Common Council of Detroit, 112 Mich. 145, 70 N. W. 450, 37 L. R. A. 211. The office of mayor and governor are incompatible. Kenney v. Goergen, 36 Minn. 190, 31 N. W. 210. The office of clerk of the district court and court commissioner are incompatible. State v. Bus, 135 Mo. 315, 36 S. W. 636, 33 L. R. A. 616; State v. Valle, 41 Mo. 29; State v. Draper, 45 Mo. 355; Andover v. Carr, 55 N. H. 452. The office of selectmen and officers of the section committee are not incompatible and may be held by the same person at the same time. State v. Sadler, 25 Nev. 131, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128. A state senator and a paymaster in the army are incompatible offices and one accepting an appointment of the latter and entering upon the duties ipso facto vacates his seat as state senator. Oliver v. City of Jersey City, 63 N. J. Law, 96, 42 Atl. 782. The position of colonel in the United States army considered an office. People v. Lahr, 71 Hun, 271, 24 N. Y. Supp. 1020; People v. Duane, 121 N. Y. 367. Retired army officer. People v. Purdy, 154 N. Y. 439, 48 N. E. 821. School trustees and town supervisor incompatible offices. State v. Mason, 61 Ohio St. 513, 56 N. E. 468. A member of the general assembly vacates his place by accepting an appointment to a Federal judgeship. State v. Mason, 61 Ohio St. 62. A clerk of the United States pension agency having no duties defined by law nor discretion to act independently of the direction of the pension agent is not ineligible to membership in the general assembly as "holding an office under the authority of the United States." Ohio Const. art. 2, § 4. O'Connor v. City of Fond du Lac, 101 Wis. 83. But see Dust v. Oakman, 126 Mich. 717, 86 N. W. 151. See, also, Santa Ana Water Co. v. Town of San Buena performing the duties of too many public offices when there are so many others properly qualified and competent to administer the duties with equal ability and efficiency.118. Statutory or constitutional provisions may also disqualify members of legislative bodies from holding any civil office which shall have been created or the emoluments of which have been increased during their incumbency in the legislative office.119 One may also be rendered ineligible to office by reason of the fact that it has already been held by him for a designated time.120 § 613. Right to change qualifications. As suggested in a preceding section, the right to hold office if possessed by reason of the possession of the required qualifications does not become a vested one and the people acting in constitutional convention or through the legislature, if the office is a legislative one, can at any time change or add to such qualifications.121 It is unquestioned in the United States that with respect to the public offices established by the different states and the Federal government, each one of these sovereignties is supreme with respect to the creation and regulation of such offices and the fixing of qualifications thereto and that neither a state nor the ventura, 65 Fed. 323, which holds that the incumbency of two offices does not ipso facto create a vacancy in either of them where neither the general statutes nor a particular charter makes such condition a ground for such result. Vogel v. State, 107 Ind. 380; Keating v. Covington, 18 Ky. L. R. 245, 35 S. W. 1026; State v. Newhouse, 29 La. Ann. 824; State v. Thompson, 20 N. J. Law (Spencer) 689; People v. Norstrand, 46 N. Y. 375; Davenport v. City of New York, 67 N. Y. 456; State v. Hoyt, 2 Or. 246; Adam v. Mengel (Pa.) 8 Atl. 606; State v. Buttz, 9 S. C. 156, and State v. Brinkerhoff, 66 Tex. 45. 118 United States v. Harsha, 172 U. S. 567. 119 People v. Curtis, 1 Idaho, 753; State v. Valle, 41 Mo. 29; State v. Hoyt, 2 Or. 246; State v. George, 22 Or. 142, 29 Pac. 356, 16 L. R. A. 737, following David v. Portland Water Committee, 14 Or. 98, 12 Pac. 174. Not an office within the meaning of such provision in the Oregon Constitution as noted in the text. State v. Boyd, 21 Wis. 208. But a member of the legislature may hold an office, the emoluments of which were increased during the legislative term but after his election to the other office. 120 State v. Bogard, 128 Ind. 480, 27 N. E. 1113; State v. Linkhauer, 142 Ind. 94, 41 N. E. 325; Davis v. Patten, 41 Kan. 480, 21 Pac. 677; Koontz v. Kurtzman, 12 Wash. 59, 40 Pac. 622. 121 Thomas v. Owens, 4 Md. 189; State v. McSpaden, 137 Mo. 628; State v. Dunn, 73 N. C. 595. |