« AnteriorContinuar »
first Monday. With this proceeding pending, Van Beek, though eligible, could not qualify on that day. It is so much in the nature of a contest that he was entitled to at least a reasonable time, if not the full twenty days, after the deci. sion in his favor, in which to qualify. By this proceeding the time for qualifying was postponed until after the first Monday, and, by the time Van Beek was entitled to qualify, he was eligible to take and hold the 583 office. The date at which Van Beek was required to be eligible was the date at which he was required to qualify. His naturalization preceded that date, and was not, therefore, retroactive. These questions raised by the demurrer were preserved on the final submission. The foregoing discussion fully disposes of all questions presented and argued, and leads us to the conclusion that the judgment of the district court should be asfirmed.
ROBINSON, C. J., dissented, saying: “I cannot assent to so much of the foregoing opinion as holds that a person may be elected to a county office in this state who was not eligible to hold office at the time of the election; nor do I think that any of the authorities cited can be regarded as sustain. ing the conclusion of the majority. The rule adopted in State v. Murray, 28 Wis. 96, 9 Am. Rep. 489, has been approved by some courts, although it is worthy of notice that a member of the court which adopted it, in the case of State v. Trumpf, 50 Wis. 104, expressed the opinion that it would have been more in accord with principle to have held that one receiving votes for an office should be eligible at the time of the election, in order to be elected. His language was quoted with evident approval in People v. Leonard, 73 Cal. 230. The Wisconsin rule was cited in Privett v. Bickford, 26 Kan. 53, 40 Am. Rep. 301, where it was held that a person ineligible to hold an office when elected might hold it after disability had been removed. The question arose under a provision of the constitution of the state of Kansas, which is as follows: ‘No person who has ever voluntarily borne arms against the government of the United States, or in any manner volun. tarily aided or abetted in the attempted overthrow of said government,
... shall be qualified to vote or to hold office in this state until such disability shall be removed by a law passed by a vote of two-thirds of all members of both branches of the legislature.' A person under the disa. bility specified was elected to the office of sheriff, and his disability was afterward removed by the legislature. It was held that he could there. after take the office, but stress was laid upon the fact that the constitutional disqualification related to the holding of the office, and not to the election, In State v. Murray, 28 Wis. 96, 9 Am. Rep. 489, the fact that there was no constitutional or statutory provision which affected the question decided was stated, and in State v. Trumps, 50 Wis. 104, it was intimated that a different rule might apply where the persons to be elected to an office were required to be qualified voters.
“It does not seem to me that the custom of Congress in admitting persons to seats in that body who were ineligible at the date of their election, but
whose disabilities were subsequently removed, entitled to much weight in this case, for the reasons that the qualifications of members of Congress are fixed by the constitution of the United States, which, excepting as to place of residence when electer, does not necessarily relate to the time of election, and each house of Congress is made the judge of the election returns and qualifications of its own members. It seems to me that the statutes of this state must determine the question under consideration, and that when properly construed they require that a person, to be eligible to a county office, must be eligible to hold the office when elected. Section 692 of the code provides that the election of any person to a county office may be contested by any elector of the county. .... 2. When the incumbent (the person whom the canvassers declare elected] was not eligible to the office at the time of the election; 3. When the incumbent has been duly convicted of an infamous crime before the election, and the judgment has not been reversed, annulled, or set aside, nor the incumbent pardoned, at the time of the election. Subsequent sections provide for the organization of a court, a trial, and judgment against the incumbent if it be found that he was not elected; and the trial may be had and judgment pronounced before the term of the office which the electors sought to fill shall com. mence. If the opinion of the majority be correct, a contest and trial might be made fruitless, and the judgment be made of no effect, if by lapse of time, or the naturalization of the incumbent, or the removal of his disa. bilities, he should, before the expiration of the time given within which to qualify, become eligible to hold the office. Another contest to determine whether he had become eligible might then be necessary.
“It is true that the opinion of the majority states that, if the court find 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, and, that in case he fail to remove his disqualification, it would have the same effect as a failure to qualify in any other respect. No provision of the statute author. izing such a judgment, or requiring any supplemental proceedings after the judgment is rendered, is referred to, and I cannot think the rule an. nounced has any support in our statute. The uncertainty and confusion which must result from this construction of the statutes in regard to the contesting of elections to county offices cannot have been intended by the general assembly. The phrase eligible to the office at the time of the elec. tion,' in my opinion, has a meaning too evident to be misunderstood, and should not be given the force of eligible to the office when the term begins,' by judicial construction.
“Section 1 of article 2 of the constitution of this state provides that every male citizen of the United States of the age of twenty-one years, who shall have been a resident of this state six months next preceding the election, and of the county in which he claims his vote sixty days, shall be entitled to vote at all elections which are now or hereafter may be authorized by law.' Section 4 of article 3 of the constitution provides that no person shall be a member of the house of representatives unless at the time of his election he shall have had an actual residence of sixty days in the county or district he may have been chosen to represent,' and the same qualifica. tion is required for senators. The evident purpose of the provision is to require that the person elected to the house or senate be a legal voter of the county or district he is chosen to represent at the time of the election; yet, under the rule of the majority opinion, that provision would be wholly inoperative, and it would be sufficient if the person chosen had an
actual residence of sixty days in such county or district when the time for taking his seat had arrived; or, in other words, he could be a nonresident of such county or district at the time of the election, and acquire the neces. sary residence after the result of the election is known. Section 6 of ar. ticle 4 of the constitution provides that no person shall be eligible to the office of governor or lieutenant governor who shall not have been a resident of the state 'two years next preceding the election.' The meaning of this is obvious, but it may properly be considered with the other constitutional provision referred to, as strengthening the presumption which arises from the language of subdivision 2 of section 692 of the code, that the general assembly in enacting it intended to require that the person elected shall be eligible to hold the office at the time he is chosen.
"The views I have expressed find abundant support in the anthorities. Under the constitution of Nebraska an elector must have resided in the state six months. The statutes of that state provide that the election of any person to any public office may le contested when the incumbent was not eligible to the office at the time of the election.' It will be noticed that this language is identical with that of subdivision 2 of section 692 of our coile. But in the case of State v. McMillen, 23 Neb. 356, it was held that the person elected was required to be an elector at the time of the elec. tion. In that case the incumbent had not resided in the state six months at the time of the election, but had been a resident of the state more than six months when the term of office for which he had been a candidate began, The court referred to the Wisconsin and Kansas cases, but declined to fol. low them on the ground that the constitution and statutes of Nebraska were controlling, and held that the incumbent was ineligible. In Territory v. Smith, 3 Minn. 240, 74 Am. Dec. 749, it was held that the qualification of residence must be consummated at the time of the election, and that it would not be sufficient if completed at the time of entering upon the duties of the office. In Searcy v. Grow, 15 Cal. 118, a constitutional provision was under consideration, which reads as follows: ‘No person holding any lucrative office under the United States, or any other power, shall be eli. gible to any civil office of profit under this state.” It was held that a per. Bon, to be eligible to an office under that provision, must be capable of taking the office at the time of the election. In State v. Clarke, 3 Nev. 566, a constitutional provisiou substantially the same as that of California quoted was construeil, and the ineligibility thereby created was held to be want of capacity to be legally chosen to, and also want of capacity to legally hold, the office. In Reynolds v. State, 61 Ind. 404, it was held that, under a clause of the constitution, which provides that ‘no person shall be elected or appointed as a county officer who shall not be an elector of the county, a person to be elected to a county office must be an elector at the time of the election.' The quotation froin Cushing found in the opinion of the majority is in entire harmony with the cases I have cited. It recognizes the Wisconsin and Kansas rule and the custom of Congress, but holds that the phrases shall be eligible to a seat,' and shall be ineligible,' when found in the law in regard to the qualifications of a person for office, relate to the time of the election, and not to the time of assuming the offi. cial functions. In my opinion a person, to be eligible to election to a county office under the statutes of this state, must be capable of taking the office at the time of the election. The fact that to so hold would deprive one who appears to be most worthy, and the choice of the people, of an office on what, in this case, may seemn to be technical grounds, is not a sufficient
reason for adopting a construction of our statutes not warranted by wellsettled rules of interpretation, which would introduce endless confusion and uncertainty in the administration of our election laws.
“I am instructed to say that GRANGER, J., concurs in this dissent."
A question similar to one of the questions involved in the principal case was presented for decision in the case of Shuck v. State, 136 Ind. 63, and the opinion there announced was in conformity with that in the principal case. Shuck had been nominated and elected to the office of county auditor at an election held in November, 1890. On November 7th of the same year the county treasurer filed a statement with the governor to the effect that Shuck, as an ex-county treasurer, was in default in the sum of eighteen hundred and eighty-four dollars and six cents, and, basing his action upon these stateinents, the governor declined to issue the com. mission to Shuck on the ground that he was ineligible to hold office under section 10 of article 2 of the constitution of the state. On November 20, 1890, Shuck called at the office of the county treasurer, and inquired how much it was claimed that he was short in his accounts, and, upon receiving a response, procured the money for which it was claimed that he was in de. fault, and immediately paid it over to the proper officer, and took his receipt therefor. This payment was made by him under protest, he, at all times, denying that he was in default. Thereafter he demanded his commission from the governor, but the county treasurer then claimed that the shortage was four thousand eight hundred and fifty-four dollars and eighty-four cents, and the commission was still withheld. The official bond of Shuck as auditor was filed November 18, 1890, but the commissioners refused to approve it, because he had no commission from the governor. Meanwhile, the former incumbent of the office continued to hold possession thereof until December 9, 1891, when the board approved Shuck's bond as auditor, and he at once entered upon the discharge of his official duties. Thereafter an action was brought against Shuck in which a general verdict, on June 17, 1892, was returned by the jury in his favor, but they also answered special interrogatories, and the court, upon such answers and on the relator's mo. tion, on October 14, 1892, rendered a judgment in favor of the relator and against the defendant Shuck, and from this judgment he appealed. The ultimate decision of the case in the appellate court was held to depend upon whether or not Shuck was in default at the time of the commencement of his official terın of office, and it was held that it was not material whether or not he was in such default at the time of his election, because the provision of the constitution of the state declaring a person so in default to be ineligible to office must be construed as meaning ineligille to hold office, und not merely ineligibility at the time of the election. Upon this point the court said: “In view of the record in this case we do not think it necessary that we should consider the rulings of the trial court upon the demurrers to the several paragraphs of the complaint. We may suggest, however, that the words ‘eligible to any office,'as used in section 91 of the constitution of Indiana, mean ‘eligible to hold the office,' and do not refer to the election. If a person is eligible to hold the office when the time for induction in office arrives he may take the office then, though not eligible to hold the office when elected. The words eligible to any office' relate to the capacity to hold the office and the term 'eligible' means regularly qualified." In snpport of these propositions the court cited the cases, Brown v. Goben, 122 Iud, 113; Smith v. Moore, 90 Ind. 294.
OFFICERS.-EQUITY JURISDICTION TO TŘY THE TITLE TO OFFICE: See the extended note to Fletcher v. Tuttle, 42 Am. St. Rep. 236.
Public Office-ELIGIBILITY.- A foreigner constitutionally ineligible to election to office at the time of his election, for want of declaration of intention to become a citizen, cannot hold the office, although after election, and before the commencement of his term of office, he duly declares such intention: Taylor v. Sullivan, 45 Minn. 309; 22 Am. St. Rep. 729, and note. An alien who has not declared his intentions to become a citizen of the United States may be elected to a public office, and may hold the same in case his disability be removed before the term of office begins: State v. Murray, 28 Wis. 96; 9 Am. Rep. 489. Que who was disqualified under the constitution to "hold office" at the time of his election is eligible if the disability was removed before the issuing of the certificate and taking possession of the office: Privett v. Bickford, 26 Kan. 52; 40 Am. Rep. 301
MEER V. Briggs.
(87 Iowa, 610.) WILLS-TITLE TO PROPERTY WHEN NOT VESTED IN THE BENEFICIARY.-A
will purporting to devise and bequeath certain property to the testa. tor's daughter, but naming certain persons as trustees to manage and control such property, and to apply the income and increase thereof to her support, comfort, and education, so far as required for such pur. poses, and declaring that the trust shall be deemed a limitation upon the title of the daughter, does not vest the legal title in her, nor give her any power to dispose of the property, though the will also confers upon the trustees power to turn the property over to her when they shall deem her fully competent and worthy to be intrusted with its care or control, or when she shall have married some worthy and com
petent man. Trust.–Tue INTENT OF A Donor to CREATE A Trust need not be expressly
declared. It may be inferred from the powers conferred. EXECUTION.—THE INTEREST OF A BENEFICIARY UNDER A TRUST DEED IS NOT
SUBJECT to execution nor to garnishment when the estate is held by trustees with the power to take and keep possession thereof, and to apply the income and increase to the support, comfort, and education of such beneficiary, so far as may be required for such purposes. Her creditors can have no greater interest in the property than she possesses, and she cannot control the disposition of the trustees, nor require them to turn the property over to her. That result cannot be indirectly secured through the action of her creditors atteinpting to reach the
property or its proceeils under process against her. PERPETUITIES.—A Will DEVISING AND BEQUEATHING PROPERTY TO Trus.
TEES, to holil possession, and to apply the income and increase to the support, comfort, and education of the beneficiary, so far as may be required, and to turn the property over to her when they shall deem her competent and worthy to assume its control, or when she shall have married some worthy and competent man, does not create a perpetuity forbidden by a statute declaring that every disposition of property