The opinion of the court was delivered by
Valentine, J.:
This is an action in the nature of quo warranto brought originally in this court by the county attorney of Coffey county to oust the defendant, C. H. Graham, from the office of county treasurer of said county. The petition states among other things as follows: “That heretofore, to-wit, on the 7th of November, 1871, the said C. H. Graham, respondent, was duly elected to the office of county treasurer of the said county of Coffey for the term of two *141years to commence on the first Tuesday in July, 1872; that subsequently the said respondent duly qualified for said office, and on the said first Tuesday in July, 1872, duly entered upon the discharge of the duties of his said office of county treasurer of said county; and that since said last-named day he has continued to perform the duties of said office, and that he now claims and assumes to be such public officer, and duly to exercise the powers of such officer, and duly to do divers acts appertaining to such office.” * * * And he has “ as such county treasurer done and suffered to be done during his said term of office divers acts hereinafter particularly set forth and stated, which by the provisions of law work and cause a forfeiture of his said office of county treasurer; and that said respondent has as such county treasurer during his said term of office neglected and refused to perform certain acts hereinafter particularly set forth and stated which it was his duty as such county treasurer to perform, which neglect and refusal to do said acts cause and work a forfeiture of his said office of county treasurer of said Coffey county.” The petition then proceeds at great length in stating the details, all showing or tending to show that the said treasurer had forfeited his office by certain acts done and neglected to be done. The answer of the defendant as amended sets up two defenses. The first is as follows: “That said defendant, neither denying nor confessing the allegations contained in said petition in this action filed, save and except as hereinafter stated, alleges and shows to the court as a defense to this action that while he admits that he was duly qualified and elected to the office of county treasurer of said Coffey county, as alleged in said petition, yet he shows to the court that at the time of the commencement of this action, prior thereto, and ever since said time, he has neither been in the possession of said office of county treasurer of Coffey county, nor of any of the rights or franchises or emoluments appertaining to or belonging to said office, and that during all of the time last aforesaid he has not used, exercised, nor attempted to use or exercise any of the franchises appertaining to or belonging to said office.” The *142second defense neither admits nor denies anything alleged in the petition, but disclaims all right, title, interest or claim to the office from April 1st, 1874. This action was commenced December 24th, 1873. The plaintiff demurred to the first defense contained in the defendant’s answer on the ground that it “does not state facts sufficient to constitute a defense to this action.”
The first question for us now to consider is, whether said demurrer should be sustained or overruled. The question raised by said demurrer is, as we understand it, as follows: Can an action in the nature of quo warranto be maintained against a person who was duly elected to the office of county treasurer, who duly qualified and took possession of the office, who had possession and control of the office and acted as such county treasurer for some time, and who still claims to be entitled to hold the office, but who did acts and omitted to do acts w|ffieUn possession of said office whereby he forfeited his rigm«bv further hold the office, and who for some cause unknown has, without resigning, and without having any judgment rendered against him, abandoned the office and is now and has been since the commencement of this suit wholly out of the possession of the office and of everything connected therewith, and is not attempting to use or exercise any of the rights or franchises of the office, and where it does not appear that any other person is or ever has been in possession or has ever had control of the office? That is, can the action be maintained against a party who is entitled to the office, who has had possession of the office and may legally take possession of it at any time again if he chooses, but who happens not to be in possession of the office at the time of the commencement of the action? Or, to shorten the statement further, will the mere want of possession at the time of the commencement of the suit defeat the action? We think not. The office was not vacant within the meaning of the law. But the person entitled to hold the office was simply neglecting and refusing to perform the duties of the office. And notwithstanding he was neglecting and refusing to perform *143the duties of his office, he was still the county treasurer. Misconduct in office does not of itself remove a county officer from office. It requires the judgment of a court of competent jurisdiction to do so. (Graham v. Cowgill, ante 114.) Now as the plaintiff is entitled to the office, and may take possession of it at any time that he may choose, and as it does not seem from the pleadings that any one else is in possession of the office, is he not constructively in possession of the same? We know from another case in this court, that another person is in fact in possession of the office; but as that person has possession of the office illegally we do not think it would affect our decision of this case, even if the fact of such possession 'had been stated in the pleadings in this case. Section 180 of the act relating to counties and county officers provides that “ If any * * * county officer shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.” (Gen. Stat., 294.) The code of civil procedure provides that “Such action may be brought in the supreme court or in the district court in the following cases: * * * Second: Whenever any public officer shall have done or suffered any act which, by the provisions of law, work a forfeiture of his office. * * * Fifth: For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto” (Gen. Stat., 760, §653, subdivisions 2 and 5; Laws of 1871, p. 276, §1, sub. 2, 6.) Sir William Blackstone says that “A writ of quo warranto is in the nature of a writ of right for the king against him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim, in order to determine the right.” (3 Blackstone Com., 262.) Sir John Comyn says that “A quo warranto is in the nature of a writ of right for the king, against him who usurps or claims any franchises or liberties, to say by what authority he claims them.” (Comyn’s *144Dig., Quo Warranto, A.) Mr. Stephen, in speaking of the causes for which an information in the nature of quo warranto will and will not be granted, says: “ But that wjaich constitutes a sufficient user, depends upon the nature of the office or franchise claimed; thus, where it appeared in the case of a freeman or free burgess of a corporation, that he had been sworn in, though no act or claim be stated to have been done or made by the defendant, the information was granted; and though a mere claim to be sworn in is no usurpation, yet a swearing in, though defective in law, may be; and where a defendant had taken the oath in such a way as he thought to be sufficient at the time to make him a free burgess, it was considered to be an user.” (3 Stephen’s Nisi Prius, 2441.) In the present case the defendant does not merely claim the office, but he has a present and existing right thereto, and a right to take immediate possession thereof. Although he has in fact forfeited his right to further hold the office, yet that forfeiture has never been judicially declared, and until it is so declared he has a right to hold the office. And no one but the state has any right to ever ask that such forfeiture shall be declared. If the state should never have asked that the forfeiture should be declared, he could rightfully and legally hold his office until the expiration of his term. It is purely in the discretion of the state whether it will press the forfeiture or not. The user is certainly sufficiently shown. The defendant gave bond, was sworn in, took possession of the office and exercised the functions thereof for more than sixteen months, and still claims to be legally entitled to the office, although he is not attempting to exercise its functions.
The demurrer to the first defense in said answer will be sustained. The judgment will be rendered in favor of the plaintiff and against the defendant in accordance with the stipulation of the parties.
Kingman, C. J. concurring.