24 Kan. 771 | Kan. | 1881
This is an original proceeding by case under ■■§ 525 of the civil code, in the nature of a quo warranto action, to determine the right to, the office of judge of the fifteenth •district from the second Monday in January, 1881 — the plaintiff claiming to be entitled thereto for a term of four years, by virtue of election at the general election of November, 1880, to succeed the defendant, who claims to hold •over until the second Monday in January, 1882. The case .agreed upon, contains all the facts upon which the controversy •depends. The parties have stated the facts in a very fair and •candid manner, and submitted the question promptly and with an evident disposition to have the controversy so determined as to cause the least embarrassment to the people of that district. In this, their conduct is worthy of all commendation, and shows that each possesses judicial qualifications which entitle him to the confidence of all. And while the question, if a new one, would not be of easy solution, yet we think prior rulings compel a decision in favor of the defendant.
The district was created by the legislature of 1873. Section 5, of chapter 76, laws of 1873, provided for the appointment by the governor of a judge who was “to hold his office until the second Monday of January, 1874, and until his successor is elected and qualified.” At the November election, 1873, the defendant was elected, and took possession of the office in January, 1874. In November, 1876, an election was held, when Judge Holt received 6,033 votes, being a majority of all the votes cast. A canvass was made by the .state board, the result declared, and a certificate of election issued to him, and he duly qualified. In November, 1877, .another election was held, with like result. At this election, .Judge Holt received only 3,528 votes, a smaller number of votes being cast than in 1876. A certificate of election was issued to him, and he again duly qualified.
Was the election in 1873 for a term of four- years? And
It follows from these considerations, that the election last November was without warrant of law, and void, and that Judge Holt continues in office until next January. His successor must be elected this fall.
Judgment will be entered in favor of the defendant.