Rogers v. Slonaker

• Decision Date: 13 June 1884
• Parties: G. J. ROGERS v. ROBERT M. SLONAKER
• Court: Kansas Supreme Court

4 P. 138

32 Kan. 191

G. J. ROGERS v. ROBERT M. SLONAKER

Supreme Court of Kansas

June 13, 1884

Original Proceedings in Quo Warranto.

ACTION brought in this court, January 30, 1884, by Rogers against Slonaker, to establish the relator's right to the office of county commissioner for the second district of Anderson county, and to oust the defendant from that office. The facts are stated in the opinion, filed at the session of the court in June, 1884.

Guthrie & Bergen, for relator.

W. A Johnson, for defendant.

HURD J. VALENTINE, J., HORTON, C. J., concurring.

OPINION

HURD, J. :

The relator commenced these proceedings in this court to establish his right to the office of county commissioner for the second district of Anderson county, and for judgment of ouster from such office against the defendant. These facts are shown by the pleadings and evidence: On the morning of January 11, 1884, the county commissioners of Anderson county were N. J. Reynolds, for the first district; Lewis M. Earnest, whose term of office will expire on the second Monday of January, 1885, for the second district; and J. B. Rhodes, whose term of office expired on January 14, 1884, for the third district. W. F. Neff was the clerk, and the relator was the coroner of the county, and the term of office of each expired on January 14, 1884. On January 11, 1884, and while the board of county commissioners of the said county was in regular session, Earnest presented in writing to the other commissioners and county clerk, his resignation of the office of commissioner for the second district of the said county, but no action was then taken by them on such resignation. Earnest left Anderson county on the morning of January 12, intending not to return thereto to reside, and ceased to be an inhabitant of Anderson county. Between four and five o'clock P. M. of Saturday, January 12, Rhodes, commissioner, and Neff, clerk, met in the commissioners' room in Garnett, the county seat of said county, and in the absence of Reynolds, and without notice to him of such meeting, in form appointed the relator commissioner for the second district of the county to fill the vacancy caused by the resignation of Earnest, and his removal from the county and ceasing to be an inhabitant thereof. The relator forthwith qualified as county commissioner, and afterward, and on the same day, he and Rhodes met, as, and claimed to be, the board of county commissioners of the said county, and undertook to transact business for the county.

About the time of, or soon after, such appointment and qualification, the relator prepared his written resignation of his office as coroner, and about five o'clock P. M. of the same day it was deposited in the post office at Garnett, addressed to the governor of the state, at Topeka. At the time of such appointment of the relator as commissioner, and his qualifying as, such, his resignation of his office of coroner had not been received or accepted by the governor of the state, and probably had not been written. On January 15, 1884, the commissioners of Anderson county were N. J. Reynolds, for the first, and G. A. Merriam, elected at the preceding general election for the second district, and A. D. McFadden, elected at the same time, was the clerk of said county; and on that day such commissioners and clerk accepted the resignation of Earnest as commissioner for such second district, and, in form, appointed defendant to fill the vacancy, and he forthwith qualified, and has ever since been acting as such commissioner for the second district of the county.

In determining the rights of the parties upon these facts, little need be said beyond citing the statutes applicable thereto, which are as follows:

"The coroner is a county officer, and holds his office by election." (Comp. Laws of 1879, ch. 25, § 116.)

"The office of any county officer may become vacant by his resignation of the office, or by his ceasing to be an inhabitant of the county for which he was elected." (Ch. 25, § 218.)

"All vacancies in any state or county office, unless otherwise provided by law, shall be filled by appointment from the governor until the next general election." (Ch. 36, § 57.)

"And such appointed officer may qualify and enter upon the duties of his office immediately." (Ch. 34, § 59.)

The county officers excepted by § 57, are county commissioners, treasurer, clerk, and register of deeds. (Ch. 25, §§ 10, 42, 64, 89.)

Vacancies in the office of county commissioner must be filled by the remaining commissioners and county...