31 Kan. 712 | Kan. | 1884
The opinion of the court was delivered by
The justice of the peace issuing the process under which the petitioner is held, was a qualified and acting justice of the peace of Sequoyah county, a municipal township of Ford county, under the provisions of §§ 31 and 32, ch. 72, Laws of 1873, at the time of the passage of the act changing and defining the boundaries of the counties of Hodgeman, Hamilton, Finney, Ford and others, approved February 21, 1883. By § 2 of that act, the county of Finney was formed and bounded in whole or in part of the territory composing the following unorganized counties, viz: All of the territory of Sequoyah county and a part of the territory of Gray, Kearney and Lane counties. ' By § 7 of
“That so long as any one of the unorganized counties in the state shall be attached to an organized county for judicial purposes, it shall constitute and form one of the municipal townships thereof, and as such shall be entitled to township officers and all things pertaining to the rights and privileges of a township, and be subject to the same regulations and liabilities as other townships of such county, and its electors shall be deemed legal electors of the county to which it is attached, and the officers of the county to which it is attached shall have the same power and perform the same duties, in reference to such attached county, as they have from the municipal townships of their own county.”
With, the creation of Finney county, Sequoyah county ceased to exist; and by the repeal of said § 31, ch. 72, Laws of 1873, Sequoyah township, as a township, also ceased to exist. After the repeal of said § 31, the unorganized counties of the state, although attached to an organized county for judicial purposes, no longer constituted or formed municipal townships. By the repeal of said § 31, such unorganized counties were deprived of township officers and of the rights and privileges of a township.
The legislature clearly has the power, directly or through the action of the board of county commissioners of a county, to abolish or wipe out townships; and having this constitutional power, the effect thereof may be to oust the officers of a township so abolished or destroyed from office before the expiration of their term. This would also include the contitutional power to abolish the office of justice of the peace in a township so destroyed. So it is not true, as contended for by the counsel resisting this application, that a justice of the peace may not be ousted from his office before the end of his term. The constitution provides that two justices of the peace shall be elected in each township,, and that their term of office shall be two years — -that is, they may continue officers of such township for two years. If there be no town
From considerations of public policy, the acts of a de facto officer are valid and binding as to the public and third persons; yet where there is no office, constitutional or statutory, a person, by pretending to exercise an office unknown to the law, cannot be deemed to be an officer defacto. There can be no de facto officer where there is no office.
The case of Borton v. Buck, 8 Kas. 302, and §§ 48 and 49, ch. 110, Comp. Laws of 1879, have no application. By the repeal of said § 31 of ch. 72, municipal townships in unorganized counties were wholly wiped out. (Laws of 1883, eh. 70, § 7; Laws of 1873, eh. 72, § 31.)
As neither the justice issuing the process under which the petitioner is' restrained of his liberty, nor the constable who has the- custody of him, are officers of any municipal township, de facto or otherwise, such restraint is wholly illegal. If the repeal of said §31, ch. 72, Laws of 1873, by the legislature of 1883, was the result of hasty legislation, the same legislature, at its special session, has attempted to repair the wrong by attaching Finney county to Ford for judicial purposes, and by reenacting substantially the. provisions of said §31. (Laws of 1884, pp. 20, 21.)
The petitioner will be discharged.