State ex rel. Childs v. Holman

Mitchell, J. In their answer to the information filed to test respondents’ title to the office of assemblymen of the city of St. Paul, two defenses are interposed. To the first defense the state demurred, and the issue raised by this demurrer is the one now submitted to the court. Its determination depends upon the construction and constitutionality of the provision relating to the residence of assemblymen contained in the city charter (Sp. Laws 1891, ch. 6, §1). 1. This provision, so far as here material, is as follows: “Said assembly shall be composed of nine (9) members. The members of the assembly shall be elected at large from the body of electors of said city, and four (4) of same shall reside east of Wabasha and Bice streets and north of the Mississippi river, and four (4) shall reside west of Wabasha and Bice streets and north of the Mississipni river, and one (1) shall reside in the Sixth (6th) ward of said city. * * * At the general municipal election of said city in eighteen hundred and ninety-two, (1892) * * * there shall be elected at large, from the electors of said city, and at each general municipal election held each [225] two (2) successive years thereafter, there shall be elected at large, from the electors of said city, nine (9) assemblymen, who shall reside in such portions of said city as hereinbefore provided.” The state contends that this lias no reference to the eligibility of candidates for the office, but is merely directory as to where the assemblymen shall reside after they are elected. The language is not susceptible of any such construction. It clearly means that four of the assemblymen shall be elected from the electors residing in one part of the city, four from those residing in another part, and. one from those residing in a third part. This construction is also the only one that is consistent with the manifest object of the provision (to secure local representation to the different parts of the city), or that would work in practice. Suppose the nine candidates receiving the highest number of votes all resided in one of these districts; which five of the nine would be required to change their residences? And to which of the remaining districts should each of the five remove? And, if they all refused to change their residences, what then? The provision relates to eligibility or qualification for election. 2. The provision of the constitution to which the state claims this provision of the charter is obnoxious is article 7, § 7, which reads as follows: “Every person who by the provisions of this article shall be entitled to vote at any election shall be eligible to any office which now is, or hereafter shall be, elective by the people in the district wherein he shall have resided thirty days previous to- such election, except as otherwise provided in this constitution, or the constitution and laws of the United States.” The contention of the respondents is that this applies only to constitutional, and not to municipal, offices. It must either apply to all elective offices, both constitutional and statutory, or else only to constitutional offices. There is no warrant for adopting a middle ground, and drawing the line at municipal (i. e. city or village) offices. The language of this constitutional provision will not admit of the limitation sought to be attached to it. By its express terms, it applies to “any office which now is, or hereafter shall he, elective by the people.” The rvords italicized must of necessity refer to statutory offices, for the constitution presently determined [226] what constitutional offices should be elective. Section 1 of the-same article, fixing the qualification of voters, and section 6, providing that elections shall be by ballot, also indicate that wherever, in this article, elective offices and elections for elective offices are mentioned, reference is had to statutory as well as constitutional offices. This court has always ‘construed section 7 as being applicable to statutory offices. State v. Clough, 23 Minn. 17. See, also, Brisbin v. Cleary, 26 Minn. 107, (1 N. W. 825;) Harrington v. Town of Plainview, 27 Minn. 224, (6 N. W. 777;) State ex rel. v. Fitzgerald, 37 Minn. 26, (32 N. W. 788.) Hence, whenever any public office of any kind is made elective, section 7, art. 7, of the constitution becomes ex proprio vigore applicable and operative, and fixes the qualifications for eligibility. This is a denial of power to the legislature to impose any greater restrictions or to add other qualifications for eligibility to those prescribed by the constitution. Thus far we do not understand that there is any difference of opinion in this court. 3. The remaining question is whether this provision of the city charter imposes greater restrictions upon eligibility, or adds qualifications for eligibility additional to those prescribed by the constitution. It seems to us that they do, and that is the way we think it would naturally strike the common sense of men. The situation, plainly stated, is just this: All the electors of the city may vote for all nine assemblymen, but no elector is eligible to any of these offices except the four or one, as the case may be, belonging to the district in which he resides. We cannot see this in any other light than as an attempt to impose a restriction or limitation upon eligibility which is equivalent to imposing a qualification for election in addition to those fixed by the constitution. It is urged with a good deal of plausibility that this provision of the charter does not render any elector ineligible to the office of assemblyman, for every one is eligible either to one of the offices included in one or the other of the two groups of four, or to the single office pertaining to the Sixth ward, and therefore no elector is deprived of any substantial constitutional right. The very subtility and refinement of reasoning resorted to in support of this proposition tends to create doubt as to its soundness. We cannot view this provision of the charter otherwise than as imposing a limitation upon or adding a condition to eligibility not permitted by the constitution. To illustrate the case [227] more fully: Suppose a vacancy occurs in the office of assemblyman residing in the Sixth ward; who is qualified under the charter to be appointed to fill the vacancy? Certainly only those who would be eligible, to wit, the electors residing in that ward. Or suppose the charter had provided for filling vacancies by election; then, under this charter provision, we would have an officer to be elected by the electors of the whole city as one election district, but. only the electors residing in the Sixth ward would be eligible. It would not be claimed that, as applied to such an election, the provision of the charter as to residence would be constitutional, for it would render ineligible all the electors in the city residing north of the Mississippi river. But if this provision be held invalid as applied to such an election, but valid as to the election now under consideration, we would have the anomaly of the same law being valid as to one election and invalid as to another for the same office in the same election district. In short, the charter has attempted a scheme which, however commendable in spirit, is impossible under our constitution, to wit, to retain the city as one election district, and yet secure local representation for the different sections by limiting eligibility to the office of assemblyman by geographical lines. This is not the case of mere regulations designed to secure a pure and orderly election which may incidentally affect a person’s opportunities to run for an office, but a case of a direct attempt to impose additional qualifications for eligibility. To avoid misapprehension, we remark, in conclusion, that, in our opinion, the unconstitutionality of the provision as to residence does not affect the validity of the remainder of the city charter, which can stand in full force -and effect with this objectionable clause eliminated. Demurrer sustained. Buck, J., absent, sick, took no part.