¶1— This was an ■ information by Mohan against Jackson, which, on motion of’ the defendant, was quashed, because it did not state facts sufficient to constitute a cause of action.
¶2It appears that on the 11th day of October, 1870, Jackson was elected to the office of justice of the peace, and that he afterwards qualified as such, and entered upon the discharge •of the duties of such office. On the 5th of May, 1874, he was elected to the office of city clerk of the city of Anderson, and he qualified and assumed the discharge of the duties of that office. Mohan was, at the same election, a candidate *600for said office of city clerk, but received a less number of votes than Jackson. Mohan filed the information in this case to test the question whether or not Jackson was entitled to hold the office of city clerk.
¶3It is claimed that the office of justice of the peace is a judicial office, and that when Jackson was elected to and accepted it, he was not eligible to the office of city clerk during the term for which he was elected justice of the peace.
¶4The question turns upon the proper construction of section 16, article 7, of the constitution of the State. It reads as follows:
¶5“No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit, under the State, other than a judicial office.”
¶6We are of the opinion that the office of city clerk is not an office “ under the State,” within the meaning of this section. The State v. Kirk, 44 Ind. 401.
¶7The question here is one of eligibility, and not one of incompatibility of' offices. When the offices are merely incompatible, the acceptance of the second vacates the first or former. Howard v. Shoemaker, 35 Ind. 111, and cases cited.
¶8The judgment .is affirmed, with costs.