of the State, shall be deprived of the right to hold any office of honor or profit in this commonwealth, and shall be punished otherwise in such manner as the General Assembly may prescribe by law." It has been held by the Board for the determination of contested elections in that State, that this constitutional provision does not require a conviction of the crime of giving, accepting or carrying a challenge in order to disqualify the offender. (Cochran vs. Jones, 14 Am. Law Reg. N. S., 222.) It was held in this case that under the constitutional provision above quoted, the doing of any of the acts named therein, disqualifies the person so acting for any office of honor or profit under the State, besides subjecting him to such punishment as may be prescribed by law. That the disqualification and the offense against the laws are separate subjects, and that the contested election board has jurisdiction to decide the former, without reference to the latter. This decision is based upon the theory that the constitution does not declare the giving, accepting or carrying a challenge, a penal offence: that it does not make these acts crimes, but simply prescribes as among the qualifications for office, that persons who have so acted shall not be eligible. This view is ably supported in the opinion, and yet its soundness is somewhat questioned by the author of the note to the case, published with the report supra. The question presented is (and it is one not free from doubt,) whether the disqualification ofduelists under the constitution of Kentucky is a punishment. If it be in the nature of a punishment for a penal offence, then a judgment of conviction by a court of competent jurisdiction would be necessary to enforce it. The better opinion, however, would seem to be that the constitutional provision in question was designed to execute itself;

that it was not to be left to the legislature to provide by statute for the indictment and punishment of persons guilty of dueling before such persons could be excluded from holding office, and that the board, for the determination of contested elections, had, therefore, jurisdiction to inquire whether the claimant for office before them had done any of the acts, which, if done, would render him ineligible. It would seem to be a rule admitting of but few exceptions, that a tribunal clothed with power to try the title to an office, must be permitted to inquire into the qualifications of all claimants, and to ascertain and consider all such facts as relate to the question of eligibility. This view of the constitutional provision above quoted is strengthened by the consideration that the same constitution in which it is found, imposes a number of disqualifications, in respect to some of which a conviction is in terms required, and in respect to others no previous conviction is made necessary,-the disqualification on account of dueling being of the latter class. Thus it is provided that every person shall be disqualified from holding any office of profit or * who shall be convicted of having given or offered any bribe or treat to secure his election." The argument is that the requirement of conviction was inserted with respect to some acts and omitted as to others, by the framers of the constitution, for a purpose, and that purpose must have been to dispense with the necessity for a conviction in the cases where it is not in terms required. (h)

trust

*

§ 257. It seems that the power given by the constitution of the United States to the executive of any State, to make temporary appointments to fill vacancies which may happen during the recess of the legislature, does not empower such executive to antici

(h) But see decision in same case by court of appeals of Ky. 14 Am. Law Reg., 373.

pate a vacancy, and make an appointment to fill it, before it happens. (Case of Fames Lanman, Cl & H., 871.) Such appears to have been the ground upon which Mr. Lanman was refused a seat in the Senate, although it does not very clearly appear, either from the report of the committee or the debate in the Senate, what were the reasons for the decision. The record, however, discloses no objection to the validity of the appointment, other than the fact that it was made before the vacancy happened. And in the course of the discussion of a subsequent case in the Senate (that of Potter vs. Robbins) this case was frequently referred to as having been decided upon the ground above stated. In the latter case Mr. Bibb, Senator from Kentucky, said, referring to the case of Mr. Lanman: "The Governor had thought fit to appoint Mr. Lanman to a vacancy which would occur, not one which had occurred. This (the Governor's) act was consequently declared void." (See Cl. & H.,886)

It is now settled that the executive of a State may appoint a Senator to fill a vacancy happening at the beginning of a term, as well as one that occurs after the office has been once filled. Case of Bell, of N. H., 46th Congress.

§ 258. As we have seen, the question of eligibility to be elected to, or to hold an office, is generally to be determined by the construction of some statutory or constitutional provision, fixing the qualifications therefor. But cases have arisen where both the constitution and statute are silent. Thus, in Wisconsin, there is no statutory or constitutional provision to determine whether an alien may be elected to or hold office. In State vs. Smith, (14 Wis., 497,) the question arose whether an alien could hold the office of sheriff. In that case the defendant was an alien, and had entered upon the discharge of the duties of his

office, without having become an elector, which he might have done by declaring his intention to become a citizen. Up to the time of the commencement of the action he had not become a voter, so that the case presented simply the question of the right of an alien, not a voter, to hold the office. The Court held that he could not hold it, and the decision was put upon the ground that a person cannot lawfully hold such an office unless he is a qualified elector of the State. The Court, by Dixon, C. J., said: "It is an acknowledged principle which lies at the very foundation, and the enforcement of which needs neither the aid of statutory or constitutional enactments or restrictions, that the government is instituted by the citizens for their liberty and protection, and that it is to be administered, and its powers and functions exercised by them and through their agency." This case, however, went no further than to hold that a person not an elector, is ineligible, in the absence of any statutory or constitutional provision on the subject, to hold an office. It left open the question whether a person not an elector, may, in the absence of such statutory or constitutional provision, be elected to an office, and be entitled to enter upon and discharge its duties, provided his disability is removed before the commencement of the term for which he is elected. This latter question, however, did arise in the same State, in the more recent case of State vs. Murray, (28th Wis., 96,) and was decided affirmatively. In this case the distinction is clearly made between ineligibility to hold an office and ineligibility to be elected to an office for a term to commence in the future, and for the duties of which the person chosen may qualify himself before the term begins. It may here be added that it has been the constant practice of the Congress of the United States since the rebellion, to admit persons to seats

in that body who were ineligible at the date of their election, but whose disabilities had been subsequently removed.

§ 259. Where the constitution of a State fixes the tenure of an office at four years, an act of the legislature of such State providing for an election to that office, and limiting the term of the person to be elected to two years, is void, in so far as it relates to the length of the term. But in other respects it is constitutional and valid, and the person chosen under it will be entitled to hold the office for the constitutional term of four years. (Westbrook vs. Roseborough, 14 Cal., 180.)

§ 260. Where the law requires an officer resigning to do so by a written resignation, to be sent to the governor, it is not necessary that the governor should signify his acceptance of a resignation to make it valid. The tenure of office, in such a case, does not depend upon the will of the executive, but of the incumbent. A civil officer has the absolute right to resign his office at pleasure, and it is not within the power of the executive to compel him to remain in office. [People vs. Porter, 6 California, 26. And see also 1, McLean's Reports, 512.]

§ 260a. A resignation once completed cannot be withdrawn. (State vs. Hauss, 43 Ind. 105.) And see State vs. Boecker, 56 Mo., 17, where it was held that a resignation to take effect in the future could be withdrawn at any time before the date at which it was to take effect.

§ 261. The Constitution of Kansas provides, that "in case of any vacancy in any judicial office, it shall be filled by appointment by the Governor, until the next regular election that shall occur more than thirty days after such vacancy shall have happened." Where the Governor acting under the power here