#### State ex rel. Schuet vs. Murray.

*An alien who has not declared his intentions, may he elected to office.*

1. An alien who has not declared his intention to become a citizen ofthe United States, may he *elected*to the office of clerk of the county hoard of supervisors, and, in case his disibility is removed before the commencement of the term of office for which he is elected, will be entitled to enter upon and hold such office.

2. *It seems*that a minor, or a person who has not resided one year in the state, may be elected to public office in this state, and may enter upon the duties of such office in case the disability as to age or residence ceases before the term of office for which he is elected commences. *Per*Lyok, J.

Action in tbe nature of a *quo*warranto, commenced - in this court. Tbe respondent demurred to tbe complaint. Tbe grounds upon wbicb tbe relator claims tbe office in dispute, will appear from tbe opinion.

*Butler &*Winkler, for tbe relator,

argued that although, a fundamental principle of our government, constituting a part of tbe unwritten law, would be violated by permitting persons wbo are not electors to administer tbe government by actually bold, ing and exercising its offices, yet no sucb principle forbids tbe *election*of persons to office wbo may be under some temporary disability for bolding office at tbe time of tbeir election, provided sucb disability be removed before the time for entering upon tbe office; that even if it should be regarded as wise for tbe legislature to forbid tbe *election*of persons wbo at tbe time *97of snob election are incompetent to *hold*office, tbat would still be merely a matter for tbe legislative discretion, and tbe court would not upon any snob ground create a' restriction upon tbe will of tbe electors wbicb tbe constitution and statutes did not create; tbat tbe only question before tbe court in *State ex rel Off v. Smith*(14 Wis., 497), was, whether it was consistent with the fundamental principles of tbe government tbat persons not elet-ors should bold office in this state; tbat tbe language of the court must be construed with reference to tbat question only, wbicb was tbe only question present to tbe mind of tbe court; tbat tbe term “ eligible ” is in fact often used to express tbe capacity of bolding an office *(Carson v.*McPhetridge, 15 Ind., 827), and was doubtless so used by this court, wbicb did not intend to decide a question not then before it, and to wbicb attention bad not been called.

*Palmer, Hoolcer &*Pitkin, for tbe respondent,

argued tbat tbe relator, having been an alien at tbe time of bis election, was ineligible, and was not elected *(State v. Smith,*14 Wis., 497 ; Cushing’s Law and Practice of Leg. Ass., 56, 57); tbat the naturalization of tbe relator after tbe election could not affect tbe rights of tbe parties; tbat he having been ineligible; the election as to tbat office was void, and no subsequent act of bis could mate it valid. Cushing, 78, 175 et seq., 206.

JjYON, J.

This is an action of *quo warranto,*commenced in this court. Tbe complaint shows tbat at tbe general election held in tbe county of Waukesha, on the 8th day of November, 1870, tbe relator was elected clerk of tbe board of supervisors of tbat county over tbe defendant, who was a candidate for tbe same office, by a majority of over five hundred votes; tbat be was elected to such office for tbe term of two years, to commence on the first Monday in January, 1871; that at tbe time of such election he possessed all of the qualifications of an elector of said county, except tbat he was an alien and bad not declared bis intention to become a citizen of tbe United States; *98that on the 14th day of November, 1870, that disability was removed by appropriate proceedings in the circuit court for Milwaukee county, and the relator then became a citizen of the United States; that the defendant, who was then the clerk of such board of supervisors, on the 2d day of January, 1871, issued to him the usual certificate of election; that he gave the bond and took the oath required by law, and thereupon demanded of the defendant, the then incumbent thereof, to be let into said office and the possession of the books and papers appertaining thereto; that the defendant refused to comply with such demand, and excluded him from said office and the exercise of the duties thereof, and Rom the possession of such books and papers; that afterwards the board of supervisors of that county declared the office vacant, and appointed the defendant to fill such vacancy; and that the defendant has thereupon continued in the exercise of said office, by virtue of such election or appointment by said board, to the exclusion of the relator.

To this complaint the defendant has inferposed a demurrer. The question presented by the demurrer is, whether an alien, who was otherwise qualified but who had not declared his intention to become a citizen of the United States, and who has been elected to a county office, may lawfully hold the same, if, before the term of office commences to which he was elected, he makes such declaration and becomes a lawful elector of the state and of the county wherein he was elected.

There is no constitutional or statutory provision, and but one judicial decision in this state, which affects this question. In *The State ex rel. Off vs.*Smith, 14 Wis., 497, this court decided that a person cannot lawfully hold such an office unless he is a qualified elector of the state. The grounds of that decision are stated in the opinion, by DixON, C. J., to be, that as to all independent popular governments “it is an acknowledged principle, which lies at the very foundation, and the enforcement of which needs neither the aid of statutory or constitutional enactments •or restrictions, that the government is instituted by the citizens *99for their liberty and protection, and tbat it is tobe administered, and its powers and functions exercised, by tbem and through, their agency.” In that case the defendant was an alien, and had entered upon the discharge of the duties of the office of sheriff, to which he had been elected, without having become an elector by declaring his intentions to become a citizen; indeed he had not done so when the action was commenced. Under this state of facts this court held that he could not lawfully hold the office, but did not decide, either expressly or by necessary implication, that he could not have held it had the disqualification been removed intermediate the election and the commencement of the term. It is true that it is said in the opinion that the defendant was ineligible; but it is not said that he was ineligible *to he elected*to such office, and the obvious meaning is that he was ineligible *to hold*the office. The term “ineligible” means as well disqualification to hold an office, as disqualification to be elected to an office.

The precise question under consideration is, therefore, a new one, and we are left free to decide it upon what we deem to be sound principles. We have already seen that the grounds upon which a person not an elector is excluded from holding public office is, that the powers and functions of a free and independent government must be exercised by those by whom such government was instituted, that is, by the electors thereof. So if a person who is not an elector attempts to exercise the functions of a public office, the courts, upon proper proceedings being instituted for that purpose, will oust him. This is one thing. But to hold that a person qualified to hold such office when the term for which he was elected commences, is disqualified merely because he was not an elector when he was elected two months before, is another and very different thing.

"What then is the natur'e and effect of the disqualification under consideration ? 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 ren*100dered ineligible *to be elected*to a public office for a term wbicb 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 to the *holding*of, the' office. I think this principle is substantially asserted in Cushing’s Law and Practice of Legislative Assemblies. Section 78 is to the effect that in cases where the disqualification is not derived from the personal character of the individual, or inflicted by way of punishment, and where it is that the individual “ shall be incapable of holding ” the office, until the disqualification is removed, this does not render him incapable of being elected, but only prevents him Lorn exercising the functions of the office until it is removed.

It has been argued that the logical result of these views would render minors, or persons who have not resided in this state one year at the time of an election, but who in all other respects are qualified electors, eligible to be elected to public office, in all cases where such minors become of age, or such persons complete a residence of one year in the state, before the commencement of the term of office to which they may have been elected. In my ojsinion this argument is sound, and I think that persons elected to public office under such circumstances may lawfully hold the same. ■ In other words, I think that in those cases, as in this case, the disqualifications relate to the *holding*of the office, and not to the election thereto.

As a matter of course, none of these remarks are intended to apply to a case where a different rule has been enacted by constitutional or statutory provision.

By giving this effect to the disqualification which the relator was under when he was elected, but which was removed before the commencement of the term of office to which he was elected, we give force and effect to another fundamental principle of free government, equally as important as that which we have discussed, which is that *the will of the majority constitutionally expressed must be obeyed.*

*101If the allegations of the complaint are true — and for the purposes of this demurrer they are to be taken to be true — the defendant and the board of supervisors of Waukesha county seem to have overlooked this most important fundamental principle.

On the facts stated in the complaint, we are all clearly of the opinion that the relator is entitled to the office to which he was elected.

*By the Court.*— The demurrer as overruled, with leave to the defendant to answer over on the usual terms within twenty days, as he may be advised.