Miller v. Holm

14 N.W.2d 99, 217 Minn. 166, 1944 Minn. LEXIS 553

• Court: Supreme Court of Minnesota
• Decided: April 6, 1944
• Docket: No. 33,833.
• Status: Published

Opinions

¹ Reported in 14 N.W.2d 99. This is an original proceeding in this court to compel the secretary of state, Mike Holm, to receive relator's filing as a candidate for the office of lieutenant governor of this state at the primary to be held July 10, 1944.

The facts are not in dispute. Relator is a citizen of the United States, 57 years of age, and since 1914 has continuously resided in Hennepin county. In the general November 1942 election, relator was elected state senator from the thirty-sixth senatorial district, duly qualified on January 5, 1943, and on that day was by the state senate elected its president pro tempore. At that session of the legislature a bill was enacted increasing the salary or pay of the members of the legislature to take effect the first Tuesday after the first Monday in January 1945. L. 1943, c. 629. By Minn. Const. art. 5, § 6, the compensation of the lieutenant governor is double that of a state senator. On May 10, 1943, relator resigned his office as state senator and has never since voted or acted as such, but has occupied the office of lieutenant governor, to which he succeeded when the elected lieutenant governor, Edward J. Thye, became governor upon the resignation of Governor Harold E. Stassen.

The part of the state constitution standing in the way of relator is art. 4, § 9, reading:

"No senator or representative shall, during the time for which he is elected, hold any office under the authority of the United States or the State of Minnesota, except that of postmaster, and no senator or representative shall hold an office under the state which has been created or the emoluments of which have been increased during the session of the legislature of which he was a member, until one year after the expiration of his term of office in the legislature."

Relator claims that he had the right to resign the office of state senator, and he did so on May 10, 1943, and that ended the "time for which he" was elected. It seems to us that such would be a forced construction, even though the word "term" is used in respect to emoluments in the second part of the section. It is contrary to State ex rel. Childs v. Sutton,63 Minn. 147, 65 N.W. 262, 30 L.R.A. 630, 56 A.S.R. 459,infra. And relator is clearly barred from filing under the second part of § 9. It is true that the provisions of the constitution to which reference has been made automatically increase the salary of the lieutenant governor when the salaries of the state senators are increased; but, since the increase did not go into effect until the first Tuesday after the first Monday in January 1945 (art. 4, § 7, authorizes the members of the legislature to increase their salaries), members of the legislature are free to seek reëlection. There may be some apparent injustice in not extending the same privileges to relator, who holds the office of lieutenant governor not by election of the people but by the state senate. But to compensate therefor, relator has the chance of becoming governor should a vacancy in that office occur. There can be no doubt that relator was elected for the four-year term ending January 1947. In the absence of the restrictions of art. 4, § 9, relator, being a qualified elector in the district where he resides and has resided, could file for any office to be filled at the coming election. (Art. 7, § 7.)

Relator relies somewhat on language used in the early case of Barnum v. Gilman, 27 Minn. 466, 8 N.W. 375, 38 Am. R. 304. However, that was a quo warranto suit not brought by the attorney general or with his consent, but by one who had been defeated for the office of lieutenant governor by the respondent Gilman, who had received the certificate of election and had qualified. The language which is seized upon by this relator is termed obiter in State ex rel. Childs v. Sutton,63 Minn. 147, 65 N.W. 262, 30 L.R.A. 630, 56 A.S.R. 459. Sutton was appointed boiler inspector while the term for which he was elected representative to the legislature was running, and it was held that he could not hold the office, though he resigned as representative two days before being appointed.

As tending in the same direction as the Sutton case, we cite State ex rel. Marr v. Stearns, 72 Minn. 200, 75 N.W. 210; State ex rel. Olson v. Scott, 105 Minn. 513, 117 N.W. 1044; State ex rel. Benson v. Schmahl, 125 Minn. 104, 145 N.W. 794; State ex rel. Anderson v. Erickson, 180 Minn. 246,230 N.W. 637. From other jurisdictions which tend in the direction of our own, we cite Advisory Opinion to the Governor, 94 Fla. 620, 113 So. 913; Baskin v. State ex rel. Short, 107 Okla. 272, 232 P. 388, 40 A.L.R. 941.

The purpose of art. 4, § 9, is pointed out in the decisions cited, and nothing further need be added. Relator contends that the last clause in art. 4, § 9, means that, since he resigned as state senator on May 10, 1943, more than one year prior to the primaries at which he desires to be a candidate for lieutenant governor, there is no obstacle to his filing. But we see no way so to construe the language which says that no senator "shall hold an office" under the state "the emoluments of which have been increased during the session of the legislature of which he was a member, until one year after the expiration of his term of office in the legislature," which is not until January 1948.

We conclude that the secretary of state rightly refuses to receive relator's filing as a candidate for the nomination of lieutenant governor in the primary to be held July 10, 1944.

The order to show cause is discharged.