KIRKPATRICK v. BROWNFIELD.

(97 KENTUCKY, 558.]

ELIGIBILITY TO OFFICE MEANS qualified to take office at the time when the official term begins, and does not require such qualification to exist at the time of the election to such oince.

Hobson & O'Meara, for the appellant.

I. W. Twyman and D. H. Smith, for the appellee.

500 HAZELRIGG, J. The appellant and appellee were rival candidates for the office of county court clerk, of Larue county, at the November election, 1894. Appellant received a majority of the votes cast, and was awarded a certificate of election by the canvassing board. Appellee contested his election upon 561 the ground that he had not, at the time of his election, procured from the proper officer a certificate of his qualification as required by law.

It was agreed that the appellant, on the eighth day of September, 1894, had obtained from the clerk of the Larue circuit court, a certificate showing his qualification, and that on the tenth day of November, 1894, he had procured from his circuit judge, a certificate stating that he had been examined by the clerk of the Metcalfe circuit court, under the supervision of the judge, and that the applicant was qualified for the office of county court clerk; the first certificate being issued before and the second after the election. The contesting board held the appellant to have been ineligible at the time of his election and hence not qualified to hold the office, which was, therefore, declared vacant. On appeal to the circuit court that finding was approved, and from that judgment Kirkpatrick prosecutes this appeal.

It is not contended that the certificate of September, 1894, has any efficacy, but it is insisted by the appellant that the requirements of the constitution were met upon the procurement of the certificate of the circuit judge after the election, and before the term began for which he was elected. The controlling provision of the constitution reads as follows: "No person shall be eligible to the offices mentioned in sections ninety-seven and ninety-nine, who is not, at the time of his election, twenty-four years of age (except clerks of county and circuit courts, who shall be twentyone years of age), a citizen of Kentucky and who has not resided in the state two years, and one year next preceding his election in the county and district in which he is a candidate. No person shall be eligible to the office of commonwealth's attorney unless he shall have been a licensed practicing lawyer four years.

No

person shall be eligible to the office 562 of clerk unless he shall have procured from a judge of the court of appeals or a judge of a circuit court, a certificate that he has been examined by the clerk of his court under his supervision, and that he is qualified for the office for which he is a candidate": Const., sec. 100.

For the appellant it is said that so much of this section as refers to the age and residence of the candidate, relates to the time of the election, because it is so expressed; but that the rest of the section relates, not to the time of election, but to the time of holding the office. That the words, "eligible for the office," and "eligible to election," or "eligible when elected," are purposely used to convey different meanings. On the other hand, the appellee contends that the word "eligible" has a well-defined, legal signification, and the expression "eligible to the office," is but a brief and concise form of stating "capable of being legally chosen or elected to the office.”

Each party appeals to his favorite lexicographer to support his contention in the use of the word "eligible," and it is evident that the construction of the section cannot be made to depend on the definition given by these learned compilers. The word is variously defined, as "proper to be chosen"; "legally qualified, as eligible to office," and we are thus left to ascertain in some other way the sense to be attached to the word as used in the section. Primarily, the word "eligible," from the latin, eligere, to elect, means capable of being elected, or if we may temporarily coin a word, eligible means "electible"; but the use of the word is not at all confined to this primary meaning, and if we attempt to substitute this meaning in the various sections of the constitution where the word is used, we reach quite absurd results, whereas, if we substitute the definition "legally qualified," as insisted on by the appellant, we obtain a consistent 563 and natural construction of all the sections. In section 114 we read: "No person shall be eligible to election as judge of the court of appeals," etc. In section 130 we read: "No person shall be eligible as judge of the circuit court who is less than thirty-five years of age when elected," etc. Manifestly, the word does not import in these sections more than that the person shall be "legally qualified," and because that legal qualification is required to exist at the time of the election other words were added to so indicate the purpose in view by the framers of the constitution. By section 93 certain officers are made ineligible to re-election, and by section 165 a notary public and officers of the militia are declared not ineligible to hold or exercise any office, etc. The framers of

the constitution, in these sections, used the word in the sense of legally "qualified" for office or qualified to hold office. Thus "No person shall be qualified for election as judge of the court of appeals, etc., or qualified as judge of the circuit court, who is less than thirty-five years of age when elected," etc. And so in numerous instances it is apparent that where eligibility is required, as of the date of the election, words are used to make the meaning indisputable. So in no less numerous instances, we find the words "eligible to the office," without additional words, relating to the time of election.

We think, therefore, that the words in themselves, as used in the constitution, mean "qualified for the office," not at the time of election, but at the time when the office is to be first assumed. Considering the care with which the constitution was prepared, and the scholarly distinction of many of its framers, we do not suppose that the same meaning is to be attached to the words "eligible to election" and "eligible to office," or "ineligible to reelection" or "ineligible to office."

504 Our conclusion, therefore, is that under the first part of the section under consideration, the words "eligible to the offices," mean "qualified for the offices," and except for the words "at the time of his election," the eligibility required of the candidate would relate to the time when he was about to hold or assume the office, and that the same words "eligible to the office," used in the latter part of the section, relate to the same time and are without words fixing the date of the eligibility at the time of the election.

This construction, it seems to us, is in accord with a general and manifest purpose on the part of the framers of the constitution. The changes of phraseology found in the various sections, was not, we think, the result of mere chance.

The words "office of clerk," mentioned in the last sentence of the section, embraced the offices of circuit and of county court clerks, and as descriptive of the particular office for which the applicant should obtain a certificate of qualification, the words, "for the office for which he is a candidate,” were used. We think the words were used without an intention to indicate the time when the applicant for the office was to obtain his certificate. At best the use of this word would raise only a presumption that the certificate was to be procured before the election, and we should not allow such presumption to override what we conceive to be the general purpose in view by the use of the terms in controversy. To do so "would be to suppose," says Mr. Story, "that

the framers weighed only the force of single words as philologists and critics, and not whole clauses and objects as statesmen and practical reasoners."

While the provisions of the section under consideration are a substantial re-adoption of section 2, article 6, of the old constitution, there seems to have been no adjudication by the court affecting the question here involved.

565 In Stevens v. Wyatt, 16 B. Mon. 542, relied on by the appellee, Garrett was held ineligible by the lower. court: 1. Because he had no certificate of qualification; and 2. Because he had not been a resident of Montgomery county for one year next preceding the election. And this court said: "As the facts respecting Garrett's ineligibility were agreed, no doubt is entertained of the propriety of the action of the board in refusing him a certificate of election."

There was an entire absence of any certificate obtained, either before or after the election, and manifestly, if Garrett had obtained his certificate after the election, or even before, the result would not have been different, as he was ineligible for another and conclusive reason. There was no controversy on Garrett's part, and the opinion makes no reference to the point now involved, nor was the argument of counsel so directed.

A few other cases from this court are referred to as touching the question, but throughout them all the question now in issue remained undetermined. Nor does the statute (sec. 1531, subsec. 8) providing for a new election in the event the person returned as elected is found not to have been legally qualified to receive the office at the time of the election, affect the question. Many of the tests of eligibility are to be applied under the various statutes as of the time of the election, and, if when the term begins, the person elected cannot qualify, a vacancy necessarily occurs, which may be filled as provided by law.

The Nevada case of State v. Clarke, 3 Nev. 570, sustains the appellee's contention as to the meaning of the word "eligible," holding it to signify, when used in statutory and constitutional clauses, such as we are considering, one "capable of being elected or chosen," and hence, the "eligibility" must relate to the time of the election.

566 To the same effect are the cases of State v. McMillen, 23 Neb. 385, and the Minnesota and California cases, as well as the earlier Indiana cases. But the Indiana court, in Smith v. Moore, 90 Ind. 294, reviewed its former decisions and adopted a different construction, saying that "legally qualified" is the meaning that

should be given to the word "eligible" as used in the section of the constitution under consideration.

To the same effect are the cases of State v. Murray, 28 Wis. 96; 9 Am. Rep. 489; Privett v. Bickford, 26 Kan. 52; 40 Am. Rep. 301, and Demaree v. Scates (1893), 50 Kan. 275; 34 Am. St. Rep. 113; where the whole question is discussed and authorities reviewed.

These cases discuss largely, and in some respects the conclusion is made to depend on, the etymology of the word "eligible,” and in this respect we think the contention of the appellant is supported by the better argument. But what is more important than this, we believe the framers of the constitution had in view a difference in meaning when they provided in one clause for "eligibility for office" and in another "eligibility to election."

The judgment below is reversed for proceedings consistent with this opinion.

OFFICERS-ELIGIBILITY.—An alien elected to a public office is on, subsequently and before the time when he is required to qualify for the office, becoming a naturalized citizen entitled to hold such office and discharge the duties thereof, if there is no constitutional or statutory provision expressly requiring him to be qualified therefor at the time of his election: State v. Van Beck, 87 Iowa, 569; 43 Am. St. Rep. 397, and note. The meaning of the word "eligibility," when used in regard to the qualifications of candidates for public offices, includes capacity to hold as well as to be elected, and is no less applicable to appointive than to elective offices: State v. Clarke, 21 Nev. 333; 37 Am. St. Rep. 517, and note.

TITUS V. ROCHESTER GERMAN INSURANCE COMPANY.

[97 KENTUCKY, 567.]

INSURANCE, EQUITY, WHEN WILL SET ASIDE A COMPROMISE.-One who has been induced to accept in full satisfaction of a loss under a policy of insurance one-half of the amount due through fraud and imposition upon him and willful misrepresentation made by the agents of the insurer, he being, as they knew, ignorant of his legal rights under the contract, may maintain an equitable action to rescind such contract of satisfaction.

EQUITY.-IGNORANCE OF LAW AS A GROUND FOR RELIEF.-If ignorance of the law exists on one side, and that ignorance is known to, and taken advantage of by, the other, the former will be relieved, especially if the mistake was encouraged or Induced by the misrepresentation of the party seeking to profit by it.

Simrall, Bodley & Doolan, for the appellant.

Gibson, Marshall & Lochre, for the appellee.