These conflicting positions are maintained with much learning and ability by the counsel for the respective parties.

After a careful and full examination, we have reached the conclusion that the position of appellant is the correct one in this case, and that the court below erred in its conclusions of law, so far as they relate to the ineligibility of appellant.

"Legally qualified" is the meaning that should be given to the word eligible, as used in the section of the constitution under consideration.

"Office" has been defined to mean public employment, and in legal meaning to be, an employment on behalf of government in any station of public trust; a place of trust by virtue of which a person becomes charged with the performance of certain public duties. 5. Wait's Actions and Defenses, p. 1 et seq., and authorities cited. With this definition of the words "eligible" and "office,' the constitutional provision may be read as follows: No person elected to any judicial office shall, during the term for which he shall have been elected, be legally qualified to be employed on behalf of government in any station of public trust, other than a judicial office. In other words, be legally qualified as an officer, to perform the duties of a public officer, other than judicial.

This interpretation disposes of one branch of the case, viz., the alleged ineligibility of appellant on account of his term as justice, which expired on the 29th day of November, 1882, more than eight months before the beginning of the term of office as county treasurer, for which he received a majority of the votes at the November election, in 1882.

When appellant entered upon his term as justice of the peace on the 29th day of November, 1878, he became, during the continuance of that term, disqualified to hold and perform the duties of any public office, except a judicial one. But while he could not, during that term, hold or perform the duties of a public office, other than judicial, it does not follow that he might not, during that term, be legally voted for and chosen to an office, the term of which would not begin until after the expiration of the judicial term as justice. Suppose that the judicial term had ended on the 8th day of November, 1882. Icould it be said with reason that appellant might not have been voted for, and legally chosen to the office of county treasurer for a term to begin in August, 1883? If so, then the office of justice of the peace disqualified him from holding and performing the duties of that office, not only during the term for which he was elected a justice.

of the peace, but for almost two years after the expiration of that term. Such a construction would make the constitution read that no person elected a justice of the peace shall, during the term for which he shall have been elected, be eligible to be voted for for any office, except a judicial one. Such a construction, we think, is not compatible with sound reason nor a proper interpretation of the constitution.

We are cited by appellee's counsel to a number of authorities, which, they contend, support their interpretation of the constitutional provision. The questions for decision in the case at bar are before this court for the first time, and hence, so far as this court is concerned, we are upon untrodden ground. Isolated expressions are found in some of the earlier cases, but they will be found to be purely dicta, so far as they in any way bear upon the questions in this case. They were not necessary to the decision of the questions before the court, and were evidently made without any thought of deciding or intimating a decision of the questions here involved.

Section 2, article 6, of the state constitution, provides that no person shall be eligible to the office of clerk more than eight years in any period of twelve. Here the phrase "eligible to office" has reference to the qualification to hold the office, and not to the election; hence it has been held that while a person might properly be elected, he could not hold beyond the eight years. Carson v. McPhetridge, 15 Ind. 327. And, so, "eligible to any office," as used in the section of the constitution under consideration in this cause, has reference to the qualification to hold office, and not to the choosing or election to such office.

We conclude, therefore, that the term for which appellant was elected a justice of the peace in 1878, having expired on the 29th day of November, 1882, he was and is qualified to hold the office of county treasurer, the term of which commenced on the 15th day of August, 1883, and that, having received a majority of the votes for such office at the general election in 1882, he is entitled to the office.

It is insisted, however, that the court below so decided, that appellant is disqualified for the office of county treasurer because, at the spring election in his township in 1882, he was voted for, and received a majority of the votes for the office of justice of the peace, the term to begin on the 29th day of November, 1882, although he did not accept the commission, file a bond, take the

oath, or in any way accept such office, but declined it. We cannot adopt this view. . . . . As we have seen, the provision of the Constitution under consideration provides that "No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office," etc.

The language of the section is not, that a party shall be ineligible during the time for which he shall have been elected, but during the term for which he shall have been elected. This, we think, implies that there shall be a term by which the ineligibility shall be measured, and that the term in contemplation begins, and can only begin, with the acceptance of the office by proper qualification. It is contended, on one side, that the purpose of the convention in the adoption of this provision was to insure a stable judiciary; that by thus rendering the judges ineligible, the result is to keep them in their places during the term for which they may have been elected. On the other side, it is insisted that the purpose was to keep the judges of the courts free from political alliance, and prevent them using their positions as a means of acquiring other offices. Judging from the debate we might conclude that the convention had both objects in view. However that may be, the section, without a doubt, was meant to apply to judges in office, and not to persons who may be chosen simply, but never qualify or enter upon the discharge of official duties. In order, then, to carry out the purpose and full intent of the section, the word "elected," used therein, cannot be taken in the narrow sense contended for by appellee, but must be construed to include, not only being chosen to, but an acceptance of, the office.

Let us suppose that A and B are rival aspirants for an office not judicial. In order to render B ineligible to that office and thus to dispose of him as such rival, A procures the voters of B's township to vote for him for the office of justice of the peace. Having received a majority of the votes, A contends that B is clected to that office, and, without accepting or qualifying, is rendered ineligible to the other for the period of four years. Such a contention on the part of A would strike the common understanding as entirely untenable and unreasonable. Nor could it make any difference whether such election might be with the knowledge and consent of B or without his knowledge.

An office is not obtained or held by contract. McCrary on Election, 216; Pomeroy Const. Law, sec. 547. It cannot be said, with reason, that such consent to be voted for is in any sense an ac

ceptance of the office. Until the consenting party is known to have received a majority vote there is nothing for him to accept. If being voted for and received a majority of the votes is an election, in the sense in which the word "elected" is used in this section of the constitution, it can make no difference whether such votes are cast with or without the knowledge and consent of the party voted for. To say that if the votes are cast with the knowledge and consent of the party voted for, he is thereby elected, and if, without such knowledge, he is not elected, is to depart from the literal signification of the word "elected," as contended for by appellee. To adopt this view, it would become necessary to construe the word "elected", and make the constitution read: No person elected, with his knowledge and consent, to a judicial office, shall be eligible, etc. And further, it would impose upon the courts, in every case of contest like this, under this section, the unreasonable and difficult duty of deciding whether or not the party thus elected was voted for, with his knowledge and consent. Other questions are argued by counsel, but it will not be necessary for us to consider them.

Without further extending this opinion, we hold that appellant was eligible to the office of county treasurer to which he was chosen, is entitled to it, and that the court below erred in its conclusions of law. The judgment of the trial court is, therefore, in all things reversed, at the costs of appellee, and the cause remanded, with instructions to that court to make its conclusions of law, and render judgment in accordance with this opinion.

HAMMOND, J., was absent during the consideration of this cause. Dissenting opinion by ELLIOTT, J.

There is conflict on this point, quite a number of cases holding that qualifications for elective offices must be present at the time of election. See Searcy v. Grow, 14 Cal. 117; Parker v. Smith, 3 Minn. 240; State v. McMillen, 23 Neb. 385.

III. DISQUALIFICATION.

ATTORNEY-GENERAL V. MARSTON.

Supreme Court of New Hampshire. June, 1891.
66 N. H. 485.

Quo warranto, to determine the defendant's title to the office of selectman of Durham. The defendant having held the office of tax-collector of Durham in 1888 and 1889, and being re-elected at the annual meeting in March, 1890, took the official oath and served for the political year. For the present year no successor was elected, and T. W. Schoonmaker being appointed, was sworn, and is collector. At the annual meeting in March, 1891, the defendant was elected selectman and being sworn, he is serving in that office. On the tax lists of 1888 and 1889 there are uncollected taxes amounting to about $169, and on the lists of 1890 about $200. Since the last March meeting the other selectmen requested a list of these uncollected taxes, and he furnished it; and in an examination made of it by the board, he told his associates that he thought some of the taxes of 1890, amounting to $61.95, could not be collected, and would probably have to be abated. He has not resigned the office of collector unless his acceptance of the office of selectman is a resignation, and his liability in respect to the uncollected taxes of the three years has not been discharged or adjusted.

CLARK, J. "Neither the treasurer nor the collector of taxes shall be a member of the board of selectmen." G. L., c. 40, s. 5. The duties of the offices of collector and selectman are in some respects conflicting. The collector is required to give a bond to the acceptance of the town or selectmen. G. L., c. 42, s. 4. The selectmen may remove a collector for certain causes. G. L., c. 42, s. 9. And in certain cases they have power to issue an extent against him. G. L. c. 66, s. 5. And it is the duty of the selectmen acting in behalf of the town, to see that the collector faithfully performs his official duties, and in default to take measures to protect the interests of the town.

The defendant having been elected and having served as collector for the years 1888, 1889 and 1890, and still retaining his warrants and lists, upon which are uncollected taxes, is still collector for those years. "Every collector, in the collection of taxes committed to him to collect, and in the service of his warrant, shall have the powers vested in constables in the service of civil process,