Montana Attorney General Opinion 15-585

Opinion No. 585 Elections-Candidal:es-Nominations -Qualifications-Counties. HELD: One who was nominated for county office b." having his name wlitten in the ballot and who was not a registered elector a t that time but who had become a registered elector hy the time he accepted the nomination is entitled to be the candidate in the general election of the party so llOmi- nating him. August 1, 1!l34. You request an opinion from this of- fice on the following matter: "A person was nominated for a county office in .Tefferson County, at the primary election on .Tuly 17, 1!l34. hy having his name written in on the Imllots. At the time of the primary election, he was not a registered elec- tor of this county, but was a registered elector in another county in this state. On the 26th day of .July, 1934, he registered in this county by trans- ferring his registration from another county. In his registration card, he stated that he had been a resident of this county for six months. On the 2ith day of July, 1934, that being within the ten days after the primary election at which he received such nomination. he filed with the county clerk of this county a written declara- tion indicating his acceptance of sllid nomination and paid to that officer the fee required for filing such pe- tition. Is this person qualified to file such nominating petition as a candi- date for a county office in this county?" We know of nothing in the constitu- tion or statutes that ,vould render the person described ineligihle as a camli- date for county assessor in your county. Section 4723 R. C. l\:J:. 1921 provides: "No person is eligible to a county of- fice who at the time of his election is not of the age of twenty-one years, a citi7-en of the state, and an elector of the county in which the duties of the office are to he exercised, 01' for which he is elected." The election referred to in this section. we think is the Novem- ber election. No one is elected to of- fice at the primary election, but merely qualifies to come up at the regular election. Some of the court decisions hereinafter referred to relate to the regulllr and not. primary elections but we think the rules laid down will, in a general way, a.pply here. The decision in State v. Furnish, 48 Mont. 28, cited by you, we think, is de- terminative of YOUl' question. The Su- preme Court there held that registra- tion prior to exercising the privilege of voting was not a part of the quali- fications of an elector, but a means of eliminating abuses in elections. Section 540 R. C. M. 1!l21 provides in part that a ,'otel' must be a citizen of the United States, a resident of the state one yellr and of the county where he votes, thirty days. next preceding the electon, and twenty-one years of age or over. 406 OPINIO~S OF' THE ATTORNEY GENERAL This fixes the legal status of an elector as referred to in Section 4723. Except where restricted by statutes an elector is qualified to hold office. The general rule on eligibility is treated quite fully in 22 R. C. L. pages 400-402,. and in Hoy". State, 168 Ind. 506, 11 Ann. Cas. 944 and in note at page 950. 22 R. C. L. at page 402. says: "The courts do not agree as to the time at which the eligibility of a person for public office must be de- termined ....... One line of authorities holds the time of election is the proper time" .... but the weight of authority appears to be that where the word "eligibility" is used ...... it has refer- ence to the qualification to hold office, rather than the qualification to be elected to office." Disahility to hold office existing at the time of election ma~' be removed before the time 'arrives to qUJllify. ~Taturalization after election and be- fore qualification has been allowed in cases cited in 22 R. C. L. 403. In State v. Huegle, 112 N. W. 234. the Supreme Court of Iowa held that "the statutory qualifications for pub- lic office must exist either at the time of election, or at the time of entering on the duties of the office, as the statute prescribing the qualifications may direct. ...... When the words in a statute prescribing the qualifications .. .. .. are 'eligible to office' the eligi- bility must exist at the time of enter- ing office, lind need not exist at the Hme of election." "Eligibili ty is to be presumed ra ther than denied." (State Y. Schragg, 2m Pac, 321, 158 Wash. 74.)