8 Kan. App. 414 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
Prior to the second Monday of January, 1897, John P. Marquand was county commissioner of the first district of Trego county for the term ending at that time. A. P. Hinshaw was commissioner of the second district and held over. F. C. Swiggett was commissioner of the third district and held over. At the general election held in November, 189G, Joshua Musgrove and John F. Barclay were the opposing candidates to succeed Marquand and were the only persons voted for to fill the office. Musgrave received the certificate of election. Barclay contested, and on January 9, 1897, the contest court decided in his favor. Musgrave filed Ms official bond and oath of office November .14, 1896, and Barclay filed his official bond and oath on January 9, 1897. On January 11, 1897, it being the second Monday of January and the-beginning of the new term of office, Barclay, as commissioner from' the first district, and Hinshaw
The only question necessary to consider is, Was John P. Marquand county commissioner de facto -of Trego county at the time the county printing was claimed to have been let to the plaintiff ? The supreme court has held that two persons cannot be officers de facto for the same office at the same time. (McCahon v. Comm’rs of Leavenworth Co., 8 Kan. 437.) Marquand’s term of office had expired and his successor had been elected and qualified. Either Musgrave or Barclay was commissioner de jure of that district, and Barclay was such defacto. Marquand had no claim to the office. In order to constitute a person an officer de facto, he must hold the office under some appearance or color of right.
The judgment of the court below was correct and is affirmed.