(dissenting). — I can not 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 sustaining the conclusion of the majority. The rule adopted in State v. Murray, 28 Wis. 96, 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, 5 N. W. Rep. 876, and 6 N. W. Rep. 512, 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, 14 Pac. Rep. 853. The Wisconsin rule was cited in Privett v. Bickford, 26 Kan. 53, where it was held that a person ineligible to hold an office when elected might hold it after disability had been removed. Th'e question arose under a provision of the constitution of the state of Kansas, which is as follows: “No person who has ever voluntarily borne alms against the government of the United States, or in any manner voluntarily 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 *584removed by a law passed by a vote of two-thirds of all members of both branches of the legislature.” A person under the disability specified was elected to the office of sheriff, and his disability was afterwards removed by the legislature. It was held that he could thereafter 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 the Murray case the fact that there was no constitutional or statutory provision which affected the question decided was stated, and in the Trumpf case 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 *585incumbent 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 commence. 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 disabilities, 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 authorizing such a judgment, or requiring any supplemental proceedings after the judgment is rendered, is referred to, and I can not think the rule announced 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 can not have been intended by the general assembly. The phrase “eligible to the office at the time of the election,” 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 *586the 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 qualification 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.
Thev 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 *587the 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, 36 N. W. Rep. 587, it was held that the person elected was required to be an elector at the time of the election. 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 fot which he had been a candidate began. The court referred to the 'Wisconsin and Kansas cases, hut declined to follow 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 (Gil. 164), 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. Crow, 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 eligible 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 quota*588tion 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 official 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 reason for adopting a construction of our statutes not warranted by well settled 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.