13 Kan. 136 | Kan. | 1874
The opinion of the court was delivered by
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
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
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.
[*From tlie first Tuesday of July, 1872, to November 15th, 1873: Graham v. Cowgill ante 114.]