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and that, relying thereon, he had exercised the rights of a citizen since arriving of age. He then set out his service in the army, his naturalization on January 5th, and alleged that immediately thereafter he filed his bond as sheriff, which was approved, and took the oath of office required by law. He denies all fraud, and prays that the injunction issued be dissolved, that he be declared to be the duly elected and qualified sheriff, and that the immediate possession and control of said office be granted to him. Plaintiff moves to strike out that part of the answer stating that the defendant relied upon information that his father was naturalized before the defendant became of age, that he exercised the rights of citizenship, and that he served in the army and was naturalized. This motion was properly overruled, as the matters set out were competent and material in denial of the fraud charged by the plaintiff.

4. On January 6, 1892, the plaintiff filed a demurrer to the answer, as follows: “1. That said answer on its face admits the fact that defendant George Van Beek was, at the time of his election, not a citizen of the United States and of the state of Iowa, and was so ineligible to said office.

677 “ 2. The answer admits on its face that defendant George Van Beek was not a citizen of the United States and of the state of Iowa at the commencement of the term of office of sheriff of Henry county, under the statutes of the state of Iowa, and was ineligible to hold the office at that time.

“3. It shows that, not being eligible at the time of the election, and at the time of the commencement of the term of office, the office became vacant, and that the present incumbent (in office), by statutory appointment, holds over until a successor legally eligible to said office shall be elected and qualified.

“4. Because no subsequent act can be retroactive, and so operate as to make defendant eligible at the date required by law.

“5. The answer confesses all substantial allegations and equities of the petition, and shows defendant not entitled to the office claimed by him.”

This demurrer was overruled on the same day, to which the plaintiff excepted. The answer admits that the appellee Van Beek was an alien at the time of his election, and that he remained such until January 5, 1892, when, as it is

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alleged, he was legally naturalized, and became a citizen of the United States and a qualified elector of Henry county, The question is whether these allegations, taken as true, show Mr. Van Beek qualified to hold the office of sheriff.

Our first inquiry is, whether an alien can hold the office of sheriff under the laws of Iowa. There is no provision in our constitution or statute upon that subject, yet it is certainly a fundamental principle of our government that none but qualified electors can hold an elective office unless otherwise specially provided. This precise question was passed upon in State v. Smith, 14 Wis. 497. Smith, an alien, who had been elected, was holding the office of sheriff without being naturalized. In speaking of our form of government the court 578 says: "As to all such governments it is an acknowledged principle which lies at the very foundation, and the enforcement of which needs neither aid of statutory nor constitutional enactments or restrictions, that the government is instituted by the citizens for their liberty and protection, and that it is to be administered, and its powers and functions exercised, only by them and through their agents.” After reasoning with marked ability upon the ques. tion the court said in conclusion: “We entertain no doubt, upon the facts stated in the ocmplaint, that the defendant was ineligible.” We are of the opinion that appellee Van Beek was ineligible to hold the office of sheriff prior to his naturalization.

This brings us to inquire whether the fact alleged of the appellee's having become eligible on the fifth day of January, 1892, entitled him to take and hold the office; in other words, whether his ineligibility relates to the time of his election, or the time he was required to qualify. In considering this question it must be remembered that we have no provision declaring who are or who are not eligible for election to or to hold the office of sheriff, and that it is only upon the general principles already stated that the appellee is held to have been ineligible to hold that office before he was naturalized. This case must not be confounded with those resting upon expressed provisions as to eligibility, either for election to or for holding any particular office. Such cases are determined by the language of the provision, while this case must be determined by the fact that the disability was one that could be, and according to the allegation was, removed in time to qualify. Mr. Cushing, in his Law and

Practice of Legislative Assemblies, section 78, in speaking of the time to which disqualifications relate, says: “Thus, where it is said that no person holding a particular office, etc., 'shall have a seat,' 'shall be a member,' 579 shall at the same time have a seat,' 'shall hold a seat,' shall be capable of having a seat,' 'shall be capable of being a member,' 'shall be capable of holding any office,' shall act as a member'--the disqualification relates to the time of assuming the functions of a member; but where the following terms are used, namely, ‘shall be incapable of being elected' shall be eligible to a seat,''shall be eligible as a candidato for,' shall be ineligible'—the disqualification relates to the time of the election.” If the appellee's disability was removed, as alleged, he was certainly "capable of being sheriff, of acting as sheriff, of holding the office of sheriff.” It cannot be said in such case that he was “incapable of being elected," or ineligible as a candidate, or ineligible to hold the office. The disqualifications to election and to hold offices, found in the constitutions and statutes of the United States and the states, may be classed as those that will or may be removed before the time for assuming the office, and those that will not and cannot be so removed. In the latter case it is very clear the person cannot take the office, because he is not eligible to hold it. In the former he is eligible if the disability has been removed, and may take and hold the office unless he was disqualified from being a candidate.

“It has been the constant practice of the Congress of the United States since the rebellion to admit persons to seats in that body who were ineligible at the date of their election, but whose disabilities had been subsequently removed": McCrary on Elections, sec. 311. The disability provided in such cases was not from being elected, but from holding the office, and, when that disability was removed, the right to hold the office was recognized. Hon. John Y. Brown, of Kentucky, who was elected as a representative in the Thirtysixth Congress before he was of the required age-twentyfive years—was allowed to take his seat and hold the 580 office upon arriving at that age, notwithstanding his ineligibility at the time of his election. In State v. Smith, 14 Wis. 497, the disqualification was held to apply to the right to hold the office, and not to the right to be elected thereto. In State v. Murray, 28 Wis. 96, 9 Am. Rep. 489, it was held that an alien may be elected to the office of clerk of the county

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board of supervisors, and, in case his disability is removed before the commencement of the term of office for which he is elected, he will be entitled to enter upon and hold such office. That case in its facts is identical with this, and, in that state, as in this, there was no constitutional or statutory provision on the subject of eligibility. The court, in considering the nature and effect of the disqualification, says: “In my judgment it is not that a person who is not an elector, only because of some disqualification which he has the power to remove at any time, is thereby rendered ineligible to be elected to a public office for a term which is to commence at a future time, but it is that a person thus disqualified shall not be eligible to hold such office. Such disqualification does not relate to the election to, but the holding of, the office.” These cases are followed in State v. Trumpf, 50 Wis. 103, one of the judges expressing dissatisfaction with the rule announced in State v. Murray, 28 Wis. 96; 9 Am. Rep. 459. From these authorities it seems quite clear that when the disqualification of one elected to an oflice is against his hold. ing the office, and that disqualification is removed in time for bim to take and hold it, he may rightly do so.

The appellant relies upon section 692 of the code, which provides for contesting elections to county offices upon the ground, among others, that the person declared elected, “was not eligible to the office at the time of the election.” It is contended that this makes ineligibility relate to the time of election, and that one then ineligible to hold the office is ineligible to election, 581 and, therefore, cannot qualify, though fully eligible at the time for doing so. In construing this language of the statute it should be remembered that courts must be slow to interfere with the choice of the people expressed at legally conducted elections, and that it is only when their choice is contrary to law that it will be set aside. If they elect one to serve them as sheriff who can legally qualify at the time required, no good reason appears for setting aside their choice. It is an eligible oflicer the law requires, and any person who can qualify himself to take and hold the office is eligible to it at the time of the election. The construction claimed would prevent the election of one not of the required age at the time of the election, though he would attain to that age in time to take the office. It would prevent the election of one who would not be entitled to his second papers until after the election, though he could obtain the same and fully

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qualify by the time for taking the office. It is in harmony with the recognized rights of the people to freedom of choice in the selection of their officers to say that, in the absence of any provision as to qualifications for election, they may choose any person who is or may become eligible to take and hold the office at the time required for qualifying. If their choice shall be one who cannot qualify, it must be disregarded, for, as we have seen, it is only those who are eligible that can hold an office. If the person declared elected was under disabilities that could be removed, so as to render him eligible to take the office at the time required, we think it would be no ground for contest that he was not eligible to take the office at the time he was elected; in other words, one who may be eligible at the time for qualifying is eligible to the office at the time of election. The judgment in cases of contest as to county offices is “whether the incumbent or any other person was duly elected": Code, sec. 714. If the contest is upon the ground of 682 ineligibility, and the ineligibility is such as cannot be removed in time to take the office required, the judgment must be that the party was not duly elected, for the reason that he could not hold the office. If the ineligibility is such that it will or may be removed in time to qualify, the judgment must be that the person was duly elected. In such case, if the party fails to remove his disqualification, it would have the same effect as a failure to qualify in any other respect.

5. Under section 685 of the code sheriffs are required to qualify “by the first Monday of January following their election.” Section 1, chapter 54, of the laws of 1886, allows them ten days thereafter, if "prevented by sickness, the inclement state of the weather, or other unavoidable casualty" from qualifying by the first Monday. Section 687 allows twenty days after the decision in case of a contest. Section 686 provides that a failure to qualify within the time prescribed shall be deemed a refusal to serve, and section 784 that the incumbent shall “ hold office until his successor is elected and qualified.” The appellant contends that, as Van Beek did not qualify on the first Monday, he must be held to have refused to serve, and that the appellant is entitled to hold the office until his successor is elected and qualified. It is a sufficient answer to this contention that appellant hy injunction prevented both Van Beek and the board from acting in the matter of his qualification on that

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