The opinion
Chadwick, J.
(concurring) — Assuming § 28 of the primary law to be constitutional, I agree with all that has been said by Judge Rudkin. I.believe it to be susceptible of construction, and that it does not conflict with §'29. I do not agree with the reasoning of Judges Mount and Crow, nor with the special reasons assigned by Judges Dunbar and Gose for their concurrence. Inasmuch as a majority of the court have decided that the writ shall not issue, it is perhaps idle to pursue the discussion, but because of the importance of this case, I feel that I am not unwarranted in expressing my reason for believing that the writ should be denied.
Section 28 of the act' attempts to puf restrictions upon-the eligibility of the candidate that are not warranted by the constitution. It provides that a candidate offending against its provisions shall not be competent to qualify for the office to which he may have been elected. Eligibility of executive officers has been defined by the constitution of the state: “No person except a citizen and a qualified elector of this state shall be eligible to hold any state office,” etc. Art. 3, § 25. In other words, the people have said that any one of their number who is a citizen of the United States and a qualified elector shall be eligible to hold the office of lieutenant governor. There is no qualification prescribed by statute for the elector that would bar the respondent in this case from assuming the *588 duties of the office to which he has been elected. Bal. Code, §§ 1320-1324 (P. C. §§ 4768-4771). Section 28 of the direct primary law clearly puts upon the citizen a test of eligibility not contemplated by the people when adopting the constitution. Although the respondent published an article or statement prohibited by § 28, this cannot be made, by mere statutory enactment, a disqualification, for the constitution leaves no room for such action on the part of the legislature. Many states have passed corrupt practice acts and made the expenditure of money by a candidate, beyond certain prescribed limits, a misdemeanor or a ground of contest, or have deprived the candidate of the emoluments of the office. These laws have generally been sustained. But any attempt to add additional qualifications or to impose any limitations on the terms of eligibility fixed by the constitution has found no favor except in two instances, to which I shall refer:
“Hence, whenever any public office of any hind is made elective, . . . the constitution becomes ex proprio vigore applicable and operative, and fixes the qualifications for eligibility. This is a denial of power to the legislature to impose any greater restrictions or to add other qualifications for eligibility to these prescribed by the constitution.” State ex rel. Childs v. Holman, 58 Minn. 219 , 59 N. W. 1006 .
The constitution of the state of Minnesota provides that any person having the qualifications óf a voter shall be eligible to-office. Ini the old case of Barker v. People, 3 Cowen 686, it is said, im discussing’the principle which I conceive to be involved here:
“Eligibility to public trusts is claimed as a constitutional right, which' cannot be abridged or impaired. . . . The constitution giving the right of election and the right of appointment; these rights consisting essentially in the freedom of choice; and the constitution also declaring, that certain persons are not eligible to office; it follows from these powers and provisions, that all other persons are eligible. Eligibility to office is not declared as a right or principle, by any express terms of the constitution; but it results, as a just deduction, *589 from the express powers and provisions of the system. The basis of the principle is the absolute liberty of the electors and the appointing authorities, to choose and to appoint, any person, who is not made ineligible by the constitution. Eligibility to office, therefore, belongs, not exclusively or specially to electors, enjoying the right of suffrage. It belongs equally, to all persons whomsoever, not excluded by the constitution. I therefore conceive it to be entirely clear, that the legislature cannot establish arbitrary exclusions from office, or any general regulation requiring qualifications, which the constitution has not required.”
See, also, McCrary, Elections, § 312; Mechem, Public Officers, § 96; Thomas v. Owens, 4 Md. 189 .
In the.case of Page v. Hardin, 8 B. Mon. (Ky.) 648, it was held that a statute requiring the secretary of state to reside at the seat of government could not work a forfeiture of the office in the face of a constitutional provision saying that he might hold the office for a prescribed term, “if he shall so long behave himself well.” The supreme court of Ohio, State ex rel. Attorney General v. Covington, 29 Ohio St. 102 , and the supreme court of Colorado, Darrow v. People, 8 Colo. 417 , under constitutional provisions like our own, in that they say “No person shall be elected,” etc., have held that this statement, being in the negative form, could not be taken as an inhibition upon the power of the legislature to add such reasonable qualifications as it deemed necessary in order to ensure an efficient and proper discharge of the office and, I may add, to ensure an incumbent who has the interest of a taxpayer in the execution of his trust. The rule adopted by these courts is as follows:
“We do not believe that the framers of the constitution, by this provision, intended to say that the right to vote should be the sole and exclusive test of eligibility to all civil offices, except as otherwise provided in the instrument itself; that no additional qualifications should ever be demanded, and no other disqualifications should he imposed. If, as has been well said, they ‘had intended to take away from the legislature the power to name disqualifications for office, other than the one *590 named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration.’ State ex rel. Attorney General v. Covington, 2 9 Ohio St. 102 .” Darrow v. People, supra.
I am not willing to admit this to be the better rule, but if it be the rule, it in no wise militates against my attitude toward the case at bar. It cannot be denied othat, if the legislature has power to add other qualifications to those fixed in the constitution, they must be reasonable. It must be within the spirit if not the letter of the constitution. Now, is the provision that one who publishes an article or statement, as provided in section 28, a reasonable one? It cannot be so held. It does not go either to the character, capacity, sex or age of the candidate or his pecuniary interest in the affairs of state. It puts a test of eligibility (“he shall not be competent to qualify”) upon the successful candidate unknown to the law, and in no way tending to safeguard the privilege of the public to select officials possessing some recognized standard of fitness. The condition is arbitrary and unreasonable. It does not pertain to the citizenship or mental or moral worth of the candidate. Therefore, in construing the constitutional provision, whether it be held that the legislature can add no qualification, or may add such reasonable qualifications as are not excluded by necessary implication, it makes no difference. Under the first construction, the respondent is entitled to his office; under the second, he cannot be denied, for the reason that the added qualification is neither reasonable or necessary to the faithful and competent administration of his office. Upon either theory section 28 violates section 25, art. 3, of the constitution.
The writ should have been denied for the reasons herein suggested.