State ex rel. Tesch v. Von Baumbach

By the Court, DixoN, C. J. Conceding the correctness of the principles laid down by the court in Barker vs. The People, 3 Cow., 686, still, we think the defendant is entitled to judgment on the demurrer. The discussion in that case was directed to the power of the legislature to establish arbitrary tests and qualifications for offices created by the constitution, which the constitution did not require, and which were repugnant to its provisions; and neither the arguments nor the opinion went beyond that question. As to all such offices and public trusts, to which the people, in the exercise of their paramount authority, have impliedly declared who shall be eligible, either by prescribing special circumstances which shall disqualify, or by reserving to themselves or to the appointing authorities a certain freedom of choice, there are very obvious reasons for holding that eligibility is in the nature of a constitutional right, and that the legislature possesses no power of exclusion not given by the constitution; but it is manifest that those reasons cannot be applied to a mere statutory office which the legislature may create and abolish at will, and concerning which the constitution contains no express provisions. The office in question is of the latter kind, and it is incumbent on those who would main [313] tain that the legislature is forbidden, either expressly or by implication, from enacting that a member of the common council shall be ineligible, or that his election shall be void, to point out the specific provisions of the constitution containing the prohibition. Those to which we are referred were clearly intended to have a different application, and are satisfied when their operation is confined to the immediate purposes for which they were introduced. They were never designed to limit or control the action of the legislature in respect to those matters which were considered too unimportant to be made the subjects of constitutional regulation; and it would be a plain violation of the spirit and purposes of the constitution so to apply them. Matters thus omitted are subjected to the discretion of the legislature which represents the sovereign power of the state and can make such rules as it deems wholesome and proper for the maintenance of .good government. The constitution does not prescribe the qualifications of city, town or village officers, nor declare who shall or shall not be eligible, and hence it is within the power of the legislature to provide for them. It merely directs how such officers' shall be elected or appointed. Sec. 9, Art. XIII. There is therefore no constitutional objection to 'the statute under consideration, and the election of the relator was void. Judgment for the defendant.