State ex rel. Perine v. Van Beek , 87 Iowa 569 ( 1893 )

Given, J.

1. Jurisdiction: whtioonsid-peti.051 ap~ — I. The first question presented is that of jurisdiction. The appellees contend that neither the district COUl’t nor this COUrt has jURS-diction to hear and determine the cause as presented in the pleadings. A determination of this question requires that we state at some length the allegations of the plaintiff’s bill. On January 4, 1892, that being the first Monday in said month, the plaintiff filed a bill stating that the relator Grillis was a resident citizen and elector of the county; that he voted at the general election in 1891 for the relator Perine, and is interested in the result of this suit; that the county attorney was asked to bring* this action, and failed and refused to do so, whereupon it is brought by a private individual. The petition alleges, in substance, as follows: That the relator Perine had held the office of sheriff of Henry county for the preceding two years, and was then in possession thereof, and entitled to hold the same until a successor “legally eligible” was duly elected and qualified; that he and the appellee Van Beek were opposing candidates for said office at the general election in 1891; that Van Beek received a majority of all the votes cast; that a certificate of election had been issued to him, and that he was about to present his bond to the defendant board for approval, and to qualify as such sheriff, and demand said office of the relator Perine; that said Greorge Van Beek was not a citizen of the state or of the United States, for the reason that he was born in the kingdom of Holland, and had never been naturalized under the laws of the United States, and was therefore “not eligible to the office at the time of his election;” that he fraudulently concealed said facts, and represented himself to be a citizen of the United States and an elector of this state at the time of the election, of the canvass of the vote, the issuing of the certificate, and until after the expiration of the time for contest; 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 Greorge 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 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 ca-use 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 heai'd, upon the relators, James R. Grillis 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 Manufacturing 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.

„ . , title to ornee. II. 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 actidn 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-.

8. Title to office: alienage: fraud m con-answef1 III. On the fifth day of January, 1892, the defendant filed a demurrer to the petition. He also filed a motion for permission to be nat-tt ... n,i , uralized, stating that he was born m _ Holland in 1834, emigrated with his parents-to the United States in 1847, and has resided therein ever since, and for twenty-seven years in Henry county; that in 1861 he volunteered in the United States military service in the War of the Bebel-lion, 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 Yan 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 5, 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.

¡hSifl: eligí-bility as°affected by alienage. IY. On January 6, 1892, the plaintiff filed a demurrer to the answer, as follows: “First. That said answer on its face admits the fact that defendant Greolge Yan 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.

“Second. The answer admits on its face that defendant George Yan 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.

“ Third. 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.

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

“Fifth. 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 Yan Beek was an alien at the time of his election, and that he remained such until January 5, 1892, when, as it is 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. Yan 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 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 complaint, 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;’ ‘shall at the same time have a seat; 7 ‘shall hold a seat; 7 ‘shall be capable of having a seat;7 ‘shallbe capable of being a member;7 ‘shall be capable of holding any office;7 ‘shall act as a member;7 — 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;7 ‘shall be eligible to a seat;7 ‘shall be eligible as a candidate for;7 ‘shall be ineligible;7 — the disqualification relates to the time of the election.77 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.77 It can not be said in such case that he was “incapable of being elected,77 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 can not be so removed. In the latter case it is very clear the person can not 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.77 McCrary,Elect., section 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 T. Brown, of Kentucky, who was elected as a representative in the Thirty-sixth congress before he was of the required age, — twenty-five years, — was allowed to take his seat and hold the office upon arriving at that age, notwithstanding his ineligibility at the time of his election. In State v. Smith, supra, 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, it was held that an alien may be elected to the office of clerk of the county 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.’7 These cases are followed in State v. Trumpf, 50 Wis. 103, 5 N. W. Rep. 876, and 6 N. W. Rep. 512, one of the ..judges expressing dissatisfaction with the rule announced in State v. Murray. 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, and therefore, can not qualify, though fully eligible at the time for doing so. In construing this language of the statute it should he 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 woirld 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 can not 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, section 714. If the contest is upon the ground of ' ineligibility, and the ineligibility is such as can not 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.

6__. delay in facte1 raofs-ms' V. Under section 685 of the Code, sheriffs are required to qualify “by the first Monday of January following their election.’’ Section 1, chapter 54, Laws 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 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 afeibmed.