(dissenting). Under Sections 1489 and 1491 of the Compiled Laws, none but a candidate or person claiming the right to hold an office can institute an election contest in his own name, and upon his own motion, and this court has *97expressly held that a failure to state facts in the notice of contest sufficient to entitle him to the office invalidates the entire proceeding. As the notice of contest is the jurisdictional paper, constituting, in effect, both the summons and complaint, a statement therein that the contestant was an elector of the county, and a candidate for the office which he seeks to recover, is not sufficient to confer jurisdiction upon the court to hear and determine the case. Batterton v. Fuller, 6 S. D. 257, 60 N. W. 1071. Although an elector and a candidate receiving a majority of the legal votes cast, plaintiff has no right to the office, nor authority to invoke the power of a court, unless he be at least 25 years-' of age, learned in the law, a citizen of the United States, and a resident of this state for at least one year next preceding his election to the office of county judge. Const. Art, 5, § 25. It nowhere appears either by proof or averment that plaintiff possesses any of the foregoing qualifications. A candidate’s claim that he is entitled and as a matter of law qualified to enter upon and perform the duties of the office in dispute is the jurisdictional basis for a contest instituted in his own name as the real party in interest, without leave first obtained; and, in order to maintain the proceeding, he must, together with other material averments, allege facts as to eligibility sufficient, when established by competent proof at the trial, to entitle him to a final judgment awarding him the office. It is beyond my power to combine words into a more glaring example of a conclusion of law than the expression “duly elected,” which, according to the intimation of the majority opinion, is a substantive averment that he possesses the various constitutional qualifications absolutely essential to tlie validity of the judgment, which this court has affirmed, and by which the lower court awarded plaintiff the possession of the office, together with the costs of the action to be taxed against the defendant. An allegation that plaintiff was a “legally qualified elector, and was entitled to vote at such election,” was held to be a mere conclusion of law, and therefore not admitted by a¡ *98demurrer. Brown v. Phillips, 71 Wis. 239, 36 N. W. 242. “It is not enough to aver that, on a day .named, the plaintiff was duly appointed receiver by the court of chancery” (Gillet v. Fairchild, 4 Denio, 80), or that S. “was duly appointed trustee under the will” (Cruger v. Halliday, 11 Paige, 314.) “A general allegation in a pleading of the performance of a condition precedent in insufficient, except in cases of contract, where it is authorized by statute.” Rhoda v. Alameda Co., 52 Cal. 350. An averment that “the copyright was taken out by plaintiff previous to the publication thereof, in full accordance with the requirements of the laws of the United States, ” is but a conclusion of law, tenders no issue, and is wholly insufficient. Directory Co. v. Curtin, 36 Fed. 829. The following cases hold squarely that, in order to enable a candidate to institute and maintain an election contest for the purpose of obtaining a judgment awarding him the office, he must allege facts showing that he possesses the qualifications required by the constitution to make him eligible to such office, and, if not, his notice of contest is but a nullity. State v. Long, 91 Ind. 351; Rutledge v. Crawford, 91 Cal. 526, 27 Pac. 779. A conclusion of law requires no denial, and the legislature never intended to thus violate the philosophy of pleading and the plainest principles of justice, by providing a remedy that enables a defeated candidate to obtain an elective office by the process and judgment of a court, without averring and proving facts entitling him to hold the same under statutory and constitutional law. Appellant’s objection to the introduction of any evidence under the notice of contest ought to have been sustained, and the proceeding dismissed.