35 Kan. 315 | Kan. | 1886
The opinion of the court was delivered by
This is an action in the nature of quo warranto, brought by Joseph T. Ward to try the title to the office of justice of the peace of the city of Topeka, which office, he alleges, has been usurped and is unlawfully held by the defendant, H. S. Clark. The case has been presented here upon the defendant's demurrer to the petition of the plaintiff. From the petition it appears that J. M. Matheny wras elected to the office in question in April, 1885, and resigned it in August of that year. Immediately upon the resignation of Matheny, and more than thirty days preceding the general election in November, 1885, the defendant, H. S. Clark, was appointed by the goveimor to fill the vacancy caused by such resignation. At the general election held on November 3,1885, the plaintiff was voted for, and received the highest number of votes, for justice of the peace, to fill out the unexpired term for which Matheny was elected. The plaintiff claims the office by virtue of this election, contending that under the provisions of §11 of article 3 of the constitution, it was a proper election to fill the vacancy occasioned by the resignation of Matheny, while the defendant claims that the vacancy could not be filled by election until the regular city election held in April, 1886, and that he was.entitled to hold the office by virtue of the appointment of the governor until that time. The question raised by the pleadings has been practically determined by former decisions of this court. In §11 of article 3 of the constitution it is provided that “ In case of vacancy in any
It follows that no election for the office of justice of the peace could have been or was held in the city of Topeka at the general election in November, 1885, and therefore the demurrer of the defendant must be sustained.