Searcy v. Grow

Field, C. J. delivered the opinion of the Court

Baldwin, J. concurring.

At the general election held in September, 1859, the defendant was returned elected to the office of Sheriff of Siskiyou county, and the *119 present proceeding was taken to contest his right to the office. A motion to dismiss the proceeding was overruled, and the defendant declining to answer the statement filed by the contestant, the Court, without proof by either party, rendered judgment annulling the election of the defendant and awarding costs against him. In this respect the ruling of the Court was clearly erroneous. The public is interested in a contest of this character; it is not a matter solely between the parties to the record, and the popular will is not to be set aside upon a mere failure of a party to respond to charges alleged against his right by an individual elector. It is not sufficient that ample causes of contest be set forth in the statement filed by a contestant; it is requisite that their truth should be established by clear proof before an election can be annulled. The statute in terms provides that the Court shall pronounce judgment, after hearing “ the proofs and allegations of the parties,” which of course means such as may be made by either or both. If no proof be given on either side, the proceedings should be dismissed. It follows that the judgment must be reversed and the cause remanded; and it is so ordered.

On the return of the remittitur, the case was tried on its merits and judgment rendered declaring defendant ineligible to the office of Sheriff. He appeals.

For facts, see opinion.

George Cadwalader, for Appellant.

1. The intention of the twenty-first section of art. 4 of the Constitution of this State is to exclude the possibility of the incumbent of a Federal office, exercising a State office, at the same time—so as not to confound the limits of Federal and State sovereignty. The mere election of Grow did not make him a State officer; until he qualified, he was not to receive anything from the State, or incur to her any responsibility. He made no attempt to hold both offices. A minor is eligible to an office who attains his majority before the arrival of the time of qualification. (See generally, Hammond v. Herrick, Congressional Contests, 287 ; Earl’s case, 314; Munford’s case, 316 ; State of Vermont v. Fisher, 28 Vt. 714.)

2. The term “ compensation,” in the above section of the Constitution, does not mean what the officer receives without deducting the *120 necessary and notorious expenses of every post office, any more than the same term when used in the Federal or State Constitution, with reference to the pay of Judges, means that they shall pay. the rent of court rooms, etc., out of their salary.

Rosborough, for Respondent.

No brief on file.