ELIGIBILI TY. The constitution of the United States provides that no person hold ing any office under the United States shall be a member of either house. The accept ance by a member of congress of a commis sion as a volunteer in the army vacates his seat ; Cl. & H. 122, 395, 637. But by a deci sion of the second comptroller of the treas ury, of Feb. 24, 1894, it was held that there was no incompatibility of office between that of a member of the house of representatives and the military office held by an officer of the United States army on the retired list, and that he was entitled to pay for both offices. A centennial commissioner holds an or trust or profit under the United States, is thereby ineligible as a presi dential elector ; In re Corliss, 11 R. I. 638, 23 Am. Rep. 538. A state cannot by statute iirovide that certain state officdrs are ineligi ble to a federal office; Turney v. Marshall, 1 Bartl. 167; Trumbull's Election, 1 Barti. 619.
Duelling has been made in some states a disqualification for office ; see DUELLING. In Kentucky, it was held that the doing of any of the prohibited acts was a disqualification for office without a previous conviction; Cochrane v. Jones, 14 Am. L. Reg. N. S. 22;
but this opinion has been questioned in a note to that case. See McCrary, Elect. 189.
An alien cannot, even in the absence of any provision forbidding it, hold an office; State v. Van Beek, 87 Ia. 569, 54 N. W. 525, 19 L. R. A. 622, 43 Am. St. Rep. 397. See Cooley, Const. Lim. 748, n.; but he may be elected to an office; State v. Murray, 28 Wis. 96, 9 Am. Rep. 489 ; State v. Trumpf, 50 Wis. '103, 5 N. W. 876, 6 N. W. 512. And mem bers elect of congress, who were ineligible on account of participation in the rebellion, have been admitted to a seat, their disquali fication having been subsequently removed; McCrary, Elect 193.
The word used in connection with an office, where there are no explana tory words indicating that it is used with reference to the time of election, refers to the qualification to hold the rather than to be elected; Bradfield v. Avery, 16 Idaho 769, 102 Pac. 687, 23 L. R. A. (N. S.) 1228; Hoy v. State, 168 Ind. 506, 81 N. E. 509, 11 Ann. Cas. 944.
As to the effect of the ineligibility of the candidate having the highest number of votes, see ErmarioN.