7 Kan. 166 | Kan. | 1871
This is an original proceeding in quo warranto, brought by .the plaintiff Roswell Norton, to determine whether himself or the defendant, Calvin H. Graham, is county treasurer of Coffey county. At the general election in November, 1869, both parties were voted for, for that office. After the election, the county commissioners canvassed the votes and declared the plaintiff to be elected to said office by a majority of one vote, and the county clerk issued to him a certificate of election. He then gave bond and took the oath of office. But the defendant contested the election. A court was organized, under the provisions of “ an act to regulate elections,” (Gen. Stat., 424, §§ 85 to 105,) for the trial of said contest, and the case was tried before said court. Everything in the organization of the court, and everything that took place during the trial seems to have been regular, except that only'two members of the court, and not three, (although all were properly notified,) met and heard the case. These two were the probate judge and one of the associates. The other associate did not meet with them. The court thus constituted heard and determined the case, and rendered a judgment declaring that said defendant, Graham, was duly elected to said office by a majority of five votes.
*169 “ Sec. 87. The court for the trial of contested county-elections, shall be thus constituted: The probate judge shall be the presiding officer, and he shall select two disinterested persons who shall be associated with him.”
Subdivision 4 of § 1 of “An act concerning the construction of statutes,” (Gen. Stat., 999,) gives authority to any two members of the court to act. It is as follows : “ Words giving a joint authority to three or more public “officers or other persons, shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.” It will not be contended that it is “ otherwise expressed in the act giving the authority ” to the probate judge and two other persons whom he shall select, to act as a court for the trial of contested county elections; nor will it be contended that it is “otherwise expressed” in any other act.