test; that the relator Perine received the highest number of votes cast for any candidate eligible to hold said office, but the board of canvassers, not knowing that said Van Beek was ineligible, declared him elected. The prayer is that the right to said office be determined; that Jacob Perine be adjudged legally in possession of the same, and entitled to hold the same until his successor is elected and qualified; that George Van Beek be adjudged ineligible thereto; that the action declaring his election be canceled and declared void, and that Jacob Perine be declared elected, and entitled to qualify 574 and to exercise said office after qualification; that the board of supervisors be commanded to issue a certificate of election to the relator Perine, and that the. said board and the auditor be commanded to qualify and swear him in as such officer; that temporary injunction issue restraining the chairman of said board and said auditor from proceeding to qualify said Van Beek, and restraining Van Beek from qualifying and from further claiming said office until this cause is determined.

On presentation of said petition to Hon. W. I. Babb, judge, in chambers, he ordered that a temporary writ of injunction issue restraining Van Beek from exercising any of the duties. and functions of said office "until information in quo warranto can be heard, upon the relators James R. Gillis and Jacob Perine filing a bond conditioned as by law." Bond being filed, the clerk, on said fourth day of January, issued a temporary writ of injunction in accordance with said order. On the same day the defendants appeared, and filed a motion to dissolve the injunction on the ground that the same was issued without authority of law, which motion was then submitted and overruled, and the court ordered the cause set down for hearing on the next day at 9 o'clock A. M. By this motion the defendants questioned the jurisdiction of the court. The overruling of the motion was favorable to the appellant, and, as the defendants have not appealed, he insists that the question of jurisdiction is not before this court. This court has uniformly held that it will recognize want of jurisdiction, even if no objection be made: St. Joseph Mfg. Co. v. Harrington, 53 Iowa, 380; Groves v. Richmond, 53 Iowa, 570. Whenever a want of jurisdiction is suggested, by our own examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction it is powerless to act in the case.

575 2. The appellee contends, and correctly so, that an action in equity aided by injunction will not lie to try title to an office: Cochran v. McCleary, 22 Iowa, 75; District Township v. Barrett, 47 Iowa, 110; State v. Simpkins, 77 Iowa, 676. The appellee also contends that the only action authorized by chapter 6, title 20, of the code, so far as it relates to public offices, is against one holding or exercising such office, and that, as he is not holding or exercising the office in question, no action will lie against him under said chapter. He maintains that this is an action to prevent him from taking and exercising the office, and that no such action is provided for by statute or common law, and therefore the court is without jurisdiction. Said chapter 6, in addition to the actions against persons doing the things specified in the first section, provides, in section 3352, as follows: "When several persons claim to be entitled to the same office or franchise a petition may be filed against all or any portion thereof, in order to try their respective rights thereto, in the manner provided by this chapter." Herein the right to proceed against one claiming to be entitled to an office or franchise is clearly given. Here we have two persons claiming to be entitled to the same office, and by this section authority is given to try their respective rights thereto. We are in no doubt but that the court has jurisdiction over this cause.

3. On the fifth day of January, 1892, the defendant filed a demurrer to the petition. He also filed a motion for permission to be naturalized, stating that he was born in Holland in 1834, emigrated with his parents to the United States in 1847, and has resided therein ever since, and for twentyseven years in Henry county; that in 1861 he volunteered in the United States military service in the war of the rebellion, 576 and was honorably discharged therefrom in 1866. The record shows that, upon proof being presented, he was duly naturalized on said fifth day of January, and that said demurrer was overruled. On the sixth day of January the defendant Van Beek answered, admitting that votes were cast at the general election as alleged, that he is a native of Holland, and that he was at the time of the election unnaturalized. He alleged that his father was naturalized in 1855; that he had been advised that his father had been naturalized before he (the defendant) attained his majority, and never until the commencement of this proceeding had reason to doubt that he was a citizen of the United States;

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.

577 "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

AM. ST. KEP., VOL. XLIII.-26

alleged, he was legally naturalized, and became a citizen of the United States and a qualified elector of Henry countyThe 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 question 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 candidate 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 can not 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 ineligi bility 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