the offices of mayor and governor are incompatible." But where the functions of the two offices are not inconsistent and there is no constitutional or statutory inhibition against the same person holding two offices, the fact of holding one does not disqualify for holding the other. This may be considered a settled rule of the common law.

43. Unfitness as a disqualification. While it is difficult in many cases to define the degree of intelligence and training necessary to qualify one to hold office, the civil service rules make an attempt to do this; and even with regard to officers not under civil service the common law and statutes make some attempts in this direction. Judges are required to be "learned in the law" and attorneys are required to pass certain examinations before being admitted to the bar. Upon this subject Throop on Officers says in §71:

"The common law declares that unfitness, if gross and palpable, is a disqualification for holding an office. Thus it has been said:

“If an office, either of the grant of the king or subject, which concerns the administration, proceeding, or execution of justice, or the king's revenue, or the commonwealth, or the interest, benefit, or safety of the subject, or the like; if these or any of them be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is merely void, and the party disabled by law, and incapable to take the same, pro commodo regis et populi (for the welfare of the king and people); for only men of skill, knowledge, and ability to exercise the same, are capable to serve the king and his people.' It is needless to say that the practical appli

cation of this doctrine is generally very difficult, and, as far as our examination has extended, there is but one case in the United States where it has been applied. That case arose in the court of common pleas for the City and County of New York. A person, who was ignorant of any foreign language, had been appointed interpreter for one of the district courts of New York City, and brought an action against the city to recover his salary. It was held that he could not recover. The court said: 'In a case of a person duly appointed to an office or public employment, the rule undoubtedly is that the fitness of the appointment cannot be questioned, if he satisfies the appointing authority, in an action for the compensation attached to the office or employment, if such person performs or is ready to perform the duties required of him in his position. But the present is the case of one alleged to be wholly incompetent. There is no attempt to prove that the plaintiff is unsuited or unfit for the position he held, except in the sense of being at all times unable to perform its duties. By accepting the position of interpreter, when, if he understood no foreign language, he could not interpret at all, he stands convicted of a fraud, either upon the officer who appointed him, and upon the public from whom he was to receive compensation, or upon the latter alone.""

44. Bribery as a disqualification.-In England one is by statute disqualified to hold office if he has resorted to bribery to procure it. The promise by a candidate to accept less than the regular salary is generally held to amount to bribery. It is conceded in all the cases that such offers are legally not to be distinguished from direct offers of pecuniary reward for a vote, and in some of the cases the transaction

is likened to the sale of the office."

The same is true

72

where one promises to appoint another a deputy provided he will withdraw as a candidate for the office," though it was held in such a case that conviction was necessary to render the defendant ineligible. The court says: "But the unlawful agreement did not of itself render the appellee ineligible to the office to which he was afterwards elected. It is true that ineligibility to hold the office to which the person violating 2327, supra, is chosen is declared to be one of the penalties for the violation of the section. These penalties, however, attach only to one who has been duly charged with, and convicted of, the misdemeanor created by the statute. It is expressly declared that, 'upon conviction thereof' the person violating the statute 'if nominated shall be ineligible to hold such office.' The provision of the statute differs materially from 6, article 2, of the Constitution. The latter makes the fact that the candidate at a popular election has given or offered a bribe, threat, or reward to secure his election an absolute disqualification for holding the office for the term for which he has been elected. It has been said to be 'self-executing.' But the penalty of the statute in this case becomes effective only after trial, conviction and judgment have taken place.

45. Other crimes as a disqualification.-Duelling is another crime which disqualifies. The constitutions of Virginia and Kentucky contain provisions dis71 Throop, Public Officers, $76; Robertson v. Robinson, 65 Ala. 610, LEADING ILLUSTRATIVE CASES.

72 Gray v. Seitz, 162 Ind. 1.

73 Carroll v. Green, 148 Ind. 362.

qualifying for this offense, and in Royall v. Thomas it was held that one so engaged might be removed by quo warranto without waiting for a trial and conviction in a regular criminal proceeding. But in Commonwealth v. Jones 75 the opposite view was taken by the court. It would take too long to enumerate the various constitutional provisions disqualifying for the commission of crimes therein specified. One particularly interested in this phase of the subject is referred to § 223 of Stimson's American Statute Law.

74 28 Grat. 130 (Va.).

75 10 Bush 725 (Ky.).

CHAPTER V.

DE FACTO OFFICERS.

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46. Who are de facto officers.-The subject of disqualifications of officers brings us to that of de facto officers, as one who would otherwise be a de jure officer may as a result of some disqualification become a de facto officer. The disqualification should not be such that the one exercising the duties of the office has no color of title, for in this case he would be a mere intruder, and an intruder is not a de facto officer, although he may by acquiescence become such. As said by the court in the case of State v. Taylor:7 "A mere intruder or usurper is not ordinarily, but may become, an officer de facto in some cases. This can happen only by the continued exercise of the office by him and the acquiescence therein by the public authorities and the public for such length of time as to afford to citizens generally a strong presumption that he had been duly appointed. But when, without color of authority, he simply assumes to act, to exercise authority as an officer, and the public know the fact, or reasonably ought to know that he is a usurper, his acts are absolutely void for all purposes. The mere fact that, apart from his usurpation, his supposed official acts were fair and honest could not impart to them validity and efficiency."

76 108 N. C. 196,