58 Kan. 148 | Kan. | 1897
This action is brought to try the title to the office of City Clerk of Leavenworth. The defendant James Gray, while holding the office of City Clerk was elected Clerk of the District Court of Leavenworth County, and thereafter duly qualified and took possession of the office. Since taking possession of the last-named office, he has undertaken to discharge — in person and by deputy — the duties of both offices. The Mayor and Council of the city, deeming the two offices incompatible, and the acceptance of the office of Clerk of the District Court equivalent to a vacation of that of City Clerk, appointed the plaintiff, Abry, to fill the supposed vacancy. Abry obtained possession of part of the records of the City Clerk’s office, but the defendants refused to surrender the remainder, and insist on the right to hold the office until the expiration of Gray’s term.
The only question requiring consideration is, whether the duties of the two offices are so incom
“The incompatibility which will operate to vacate the first office must be something more than the mere physical impossibility of the performance of the duties of the two offices by one person, and may be said to arise where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both.”
In People, ex rel. Ryan, v. Green (58 N. Y. 304), it was said by Folger, J., delivering the opinion of the court:
“Nor is the office of a member of assembly, in the legal sense of the word, incompatible ■ with that of deputy clerk of the court of special sessions of the city and county of New York. . . . It may be granted that it was physically impossible for the relator to be present in his seat in the assembly chamber, in the performance of his duty as a member of that body, and at the same time at his desk in the court doing his duty as deputy clerk thereof. But it is clearly shown in those opinions, that physical impossibility is not the incompatibility of the common law, which existing, one office is ipso fa,do vacated by accepting another. Incompatibility between two offices, is an inconsistency in the functions of the two; as judge and clerk of the same court — officer who presents his personal account subject to audit, and officer whose duty it is to audit it.”
To the same effect see Mechem on Public Offices and Officers, § 422 ; State, ex rel., v. Lusk, 48 Mo. 242.
A large number of cases in which questions as to the incompatibility of different offices have been con
Judgment is entered for the defendant.