State v. Gaston

• Decision Date: 08 February 1890
• Citation: 44 N.W. 706,79 Iowa 457
• Parties: STATE v. GASTON.
• Court: Iowa Supreme Court

79 Iowa 457

44 N.W. 706

STATE

v.GASTON.

Supreme Court of Iowa.

Feb. 8, 1890.

Appeal from district court, Polk county; O. B. AYERS, Judge.

Quo warranto to determine the rights of defendant to fill the office of justice of the peace. The cause was tried without a jury, and judgment was rendered for the state, ousting defendant from the office. He now appeals.Baker & Haskins, for appellant.

C. P. Holmes and J. K. Macomber, County Atty., for the State.

BECK, J.

1. The facts upon which rests the decision of the questions involved in the case are these: Prior to 1886, Valley township, Polk county, was authorized to elect two justices of the peace. At the election in that year four justices were elected, and qualified. Defendant was one of the number. Notices of the election of that number of justices were posted as required by law. At the election of 1888 four justices were again voted for, defendant being one of the number, all of whom received a majority of all the votes cast, but defendant's vote was not equal in number to the separate votes of the others. The two having the highest number of votes qualified as prescribed by law, but defendant and the other person having a less number of votes were not permitted to qualify. The defendant, however, claims that he has the right to fill the office until his successor is elected and qualified, and that he is entitled to hold the office if not qualified, as no successor has been qualified. The state maintains that defendant cannot lawfully hold the office, for the reason that the election of more than two justices of the peace in the township is unauthorized by law.

2. This position of the state is supported by the following provisions of the statutes and the facts we shall state. Code, § 590, provides for the election of two justices in each township. Section 592 is in the following language: “One or two additional justices of the peace, and one or two additional constables, may be elected in each township, if the trustees so direct by posting up notices of the same, in three of the most public places in the township, at least ten days before election.” Under the section to authorize the election of more than two justices, direction therefor must be given by notices posted as prescribed by the statute. But it plainly appeared that, as an accurate record of the proceedings and orders of the trustees must be kept, the law requires the direction in question to be entered therein. See Code, §...