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Sheriff and Justice of the Peace George VAN BEEK

Male 1834 - 1910  (~ 70 years)


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  • Name George VAN BEEK 
    Title Sheriff and Justice of the Peace 
    Born Apr 1834  Netherlands Find all individuals with events at this location 
    Gender Male 
    Immigration 1847 
    Naturalization 5 Jan 1892  District Court, Henry County, IA Find all individuals with events at this location 
    Died Between 1905 and 1910 
    Notes 

    • (1) Source: Dennis Brumm .

      (2) According to State ex rel. Perine v. Van Beek, 54 N.W. Rep. 525, IA Sup. Ct. 1893, George VAN BEEK and his parents immigrated to the United States in 1847.

      (3) George VAN BEEK is listed in a household headed by Peter SMITH in the 1860 census of Burlington Township, Des Moines County, IA. [His surname is listed as VANBEEK in the index to the 1860 census.]

      George is listed in the 1860 census as a farm hand who was then 25 years of age; therefore, according to the 1860 census, he was born in about 1835. According to the 1860 census, he was born in Holland.

      (4) Lothrop, Charles H., A History of the First Regiment Iowa Cavalry Veteran Volunteers, Lyons, IA: Beers & Eaton, 1890, pp. 305, 407, 409:

      COMPANY C. . . .

      LIEUTENANT GEORGE VAN BEEK.

      Officer issuing order, Colonel Fitz Henry Warren. Number of order, special. Place of service and with whom, Montevallo, Missouri, and served continuously until relieved at Forsyth, Missouri - first with Ewing A. _____; then with Lieutenant Shafer, at Osceola, Missouri; then with Billy Wilson, driving hospital team. Date of service, from May, 1862, to February, 1863. Nature of service, teamster for regimental hospital; detailed as such at Springfield, Missouri, fall of 1862.

      * * *

      1865. . . .

      LINE OFFICERS. . . .

      George Van Beek, 2d Lt. Co. C.

      * * *

      LINE OFFICERS DURING THE WAR. . . .

      George Van Beek, 2d Lt. Co. C.

      (5) A household headed by George VANBEEK is listed in the 1870 census of New London Township, Henry County, IA. [His surname is listed as VANBECK in the index to the 1870 census.]

      George is listed in the 1870 census as a farmer who was then 38 years of age; therefore, according to the 1870 census, he was born in about 1832. According to the 1870 census, he was born in Holland.

      Listed with George is his wife, Emily M., who was then 33 years of age; therefore, according to the 1870 census, she was born in about 1837. According to the 1870 census, she was born in OH.

      Also listed with George is his daughter, Etta, who was then 1 year of age; therefore, according to the 1870 census, she was born in about 1839. According to the 1870 census, she was born in IA.

      (6) A household headed by George VAN BEEK is listed in the 1880 census of New London Township, Henry County, IA.

      George is listed in the 1880 census as a farmer who was then 46 years of age; therefore, according to the 1880 census, he was born in about 1834. According to the 1880 census, he was born in Holland, and both of his parents were born in Holland. Also, according to the 1880 census, he was a widower.

      Listed with George is his daughter, Hariet M., who was then 11 years of age; therefore, according to the 1880 census, she was born in about 1869. According to the 1880 census, she was born in IA, her father was born in Holland, and her mother was born in OH.

      Also listed with George are two apparently unrelated persons, Mary E. DAVIS and her son, Wilbur DAVIS.

      (7) A household headed by George VAN BEEK is listed in the 1885 IA state census of New London Township, Henry County, IA.

      George is listed in the 1885 census as a farmer who was then 50 years of age; therefore, according to the 1885 census, he was born in about 1835. According to the 1885 census, he was born in Holland.

      Listed with George is his wife, Emma C., who was then 39 years of age; therefore, according to the 1885 census, she was born in about 1846. According to the 1885 census, she was born in IN.

      (8) STATE ex rel. PERINE et al. v. VAN BEEK et al. [54 N.W. Rep. 525]

      (Supreme Court of Iowa. Feb. 2. 1893.)

      JURISDICTION - TRYING TITLE TO OFFICE - ELECTION OF ALIEN - NATURALIZATION AFTER ELECTION - EFFECT.

      1. Under Code, tit. 20, c. 6, ??3352, providing that, "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," the district court, and hence the supreme court on appeal, has jurisdiction to try a cause involving the right to the office of sheriff, on a petition filed by one claimant to such office against another.

      2. In an action by one claimant to the office of sheriff against another claimant to determine the right to such office, the petition alleged that defendant fraudulently concealed the fact that he was an alien until after the election. Defendant in answer admitted his foreign birth, but averred that, relying on information that his father had become a naturalized citizen before he (defendant) had attained his majority, he had always exercised the rights of a citizen, and not until the beginning of this action had he ever doubted that he was a citizen. Held, that a motion to strike out these averments was properly overruled, as they set up matters material as a denial of the fraud alleged in the petition.

      3. In lowa an alien is ineligible to hold the office of sheriff.

      4. Though a sheriff, at the time of his election, is an alien, and is consequently ineligible to hold office, his naturalization as a citizen before his induction to office removes this disability, and entitles him to the office. Robinson, C. J. and Granger, J., dissenting.

      5. Under Code, ??687, providing that, when any election is contested, the person elected shall have 20 days in which to qualify after the date of the decision, an order restraining defendant from qualifying as sheriff is a proceeding in the nature of a contest that will entitle defendant to a reasonable time after the decision in which to qualify.

      6. Where a sheriff was unable to qualify by reason of an order restraining him from so qualifying on the ground that he is an alien, his naturalization as a citizen pending the injunction entitled him to the office on the dismissal of the injunction.

      Appeal from district court, Henry county; W. I. Babb, Judge.

      Action to determine the right to the office of sheriff of Henry county, Iowa, as between the relator Jacob Perine and the defendant George Van Beek, and for certain other relief. The jury being waived, the cause was tried to the court, and judgment entered "that plaintiff's bill herein be dismissed, and that defendant George Van Beek be authorized and empowered to hold said office of sheriff for the remainder of the time for which he was elected." Plaintiff appeals.

      M. A. McCold, Palmer & McCold, and Phillips & Day, for appellant. T. A. Bereman, W. S. Withrow, and R. Ambler & Son, for appellees.

      GIVEN, J. 1. The first question presented is that of jurisdiction. Appellees contend that neither the district court nor this court has jurisdiction to hear and determine the cause as presented in the pleadings. A detemination 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 relator Gillis was a resident citizen and elector of the county; that he voted at the general election in 1891 for relator Perine, and is interested in the result of this suit; that the county attorney was asked to bring this action, and failed and raised 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 posession thereof, and entitled to hold the same until a successor "legally eligible" was duly elected and qualified; that he and 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 George 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 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 and to exercise said office after qualification; that the board of supervisors be commanded to issue a certificate of election to 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 4th day of January issued a temporary writ of injunction in accordance with said order. On the same day 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 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. Manufacturing Co. v. Harrington, 53 Iowa, 380, 5 N. W. Rep. 568; Groves v. Richmond, 53 Iowa, 570, 5 N. W. Rep. 763. 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. 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 Tp. v. Barrett, 47 lowa, 110; State v. Simpkins, 77 Iowa, 676, 42 N. W. Rep. 516. Appellee also contends that the only action authorized by chapter 6, tit. 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.

      2. On the 5th 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 27 years in Henry county; that in 1861 he volunteered in the United States military service in the War of the Rebellion, and was honorably discharged therefrom in 1866. The record shows that, upon proof being presented, he was duly naturalized on said 5th day of January, and that said demurrer was overruled. On the 6th 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 duly declared elected and qualified sheriff, and that the immediate possession and control of said office be granted to him. Plaintiff mores to strike out that part of the answer stating that defendant relied upon information that his father was naturalized before 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 plaintiff.

      3. 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. (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 once claimed by him." This demurrer was overruled on the same day, to which the plaintiff excepted. The answer admits that appellee Van Beck 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. Van Beck 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.

      4. This brings us to inquire whether the fact alleged, of appellee's having become eligible on the 5th 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 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;' '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 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 cannot 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, Elect. ??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 Thirty-sixth congress before he was of the required age, - 25 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, be 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, 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. 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 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 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 case of contest at to county offices is "whether the incumbent or any other person was duly elected." Code, ??714. If the contest is upon the ground of 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. 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.

      5. Under section 685 of the Code, sheriffs are required to qualify "by the first Monday of January following their election." Section 1, c. 54, Laws 1886, allows them 10 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 20 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." Appellant contends that, as Van Beek did not qualify on the first Monday, he must be held to have refused to serve, and that 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 20 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. Those 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., (dissenting.) I cannot summit to so much of the foregoing opinion as holds 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. 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 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 removed by a law passed by a vote of two thirds of all members of both branches of the legislature." A person under the disabillty 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 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 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 this 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 cannot think the rule announced has any support in our statute. The uncertainty and confusion which must result from the construction of the statutes in regard to the contesting elections to county offices cannot 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 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 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 60 days in such county or district when the time for taking his seat has 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, 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 for which he had been a candidate began. The court referred to the Wisconsin and Kansas cases, but 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 residency 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 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 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.

      (9) A household headed by George VAN BEEK is listed in the 1900 census of Mt. Pleasant, Center Township, Henry County, IA. [His surname is listed as VAN BERK in the index to the 1900 census.]

      George is listed in the 1900 census as a justice of the peace who was born in April 1834 and was then 66 years of age. According to the 1900 census, he was born in Germany, and both of his parents were born in Germany. According to the 1900 census, he had then been married 17 years. Also, according to the 1900 census, he had immigrated to the United States in 1856, had then been in the United States 44 years, and was a naturalized American citizen. [Note by compiler: According to other sources, he was born in the Netherlands; both of his parents were born in the Netherlands; and he and his parents immigrated to the United States in 1847.]

      Listed with George is his wife, Emily C., who was born in November 1843 and was then 56 years of age. According to the 1900 census, she was born in IN, her father was born in MD, and her mother was born in OH. According to the 1900 census, she had then been married 17 years and had theretofore given birth to no children.

      Also listed with George is his niece, Elma Z. ROBERTS, a dressmaker who was born in May 1874 and was then 26 years of age. According to the 1900 census, she was born in IA, her father was born in VA, and her mother was born in KY.

      (10) A household headed by Geo. VAN BEEK is listed in the 1905 IA state census of Mt. Pleasant, Henry County, IA.

      Geo. is listed in the 1905 census as then residing at 401 Adams in Mt. Pleasant.

      Also listed with Geo. is his wife, Emma C.
    Person ID I16650  Frost, Gilchrist and Related Families
    Last Modified 25 Nov 2018 

    Father Leendert VAN BEEK,   b. Abt 1799, Netherlands Find all individuals with events at this location,   d. Bef 12 Mar 1874  (Age ~ 75 years) 
    Relationship natural 
    Mother Elisabeth (VAN BEEK),   b. Abt 1804, Netherlands Find all individuals with events at this location,   d. 12 Mar 1874, Henry County, IA Find all individuals with events at this location  (Age ~ 70 years) 
    Relationship natural 
    Family ID F7450  Group Sheet  |  Family Chart

    Family 1 Emily C. WELLER,   b. Nov 1843, IN Find all individuals with events at this location,   d. Between 1920 and 1925  (Age ~ 76 years) 
    Married Abt 1883 
    Last Modified 25 Nov 2018 10:18:54 
    Family ID F7275  Group Sheet  |  Family Chart

    Family 2 Emily MAYNARD,   b. Abt 1837, OH Find all individuals with events at this location,   d. Nov 1879, Henry County, IA Find all individuals with events at this location  (Age ~ 42 years) 
    Married Bef 1869 
    Children 
     1. Harriet E. VAN BEEK,   b. Jun 1868, Henry County, IA Find all individuals with events at this location,   d. 17 Nov 1950, Sprague, Lincoln County, WA Find all individuals with events at this location  (Age ~ 82 years)  [natural]
    Last Modified 25 Nov 2018 10:18:54 
    Family ID F7449  Group Sheet  |  Family Chart