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. 489. From these authorities it seems quite clear that when the disqualification of one elected to an office is against his holding the office, and that disqualification is removed in time for him 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 officer 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

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 disre garded, 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 582 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. 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.

If

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 by injunction prevented both Van Beek and the board from acting in the matter of his qualification on that

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 decision 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 affirmed.

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. Trumpf, 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, is 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 elected, 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 necessary residence after the result of the election is known. Section 6 of article 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 authorities. 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 be 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 code. But in the case of State v. McMillen, 23 Neb. 386, 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 person, 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 provision substantially the same as that of California quoted was construed, 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 from 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 seem to be technical grounds, is not a sufficient