Ward v. Clark

• Decision Date: 07 May 1886
• Parties: JOSEPH T. WARD v. H. S. CLARK
• Court: Kansas Supreme Court

10 P. 827

35 Kan. 315

JOSEPH T. WARD v. H. S. CLARK

Supreme Court of Kansas

May 7, 1886

Decided January, 1886

Original Proceedings in Quo Warranto.

ACTION in the nature of quo warranto, brought in this court November 28, 1885, by Joseph T. Ward against H. S. Clark. The opinion filed at the May, 1886, session of the court, states the material facts.

Sustained.

Joseph T. Ward, plaintiff, for himself.

Webb & Spencer, and J. H. Dinkgrave, for defendant.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

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 was 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 governor 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 judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened." The phrase "next regular election," found in the above provision, has been defined to be "the next election held conformably to established rule or law," and also "the regular election prescribed by law for the election of a particular officer to be elected." (The State, ex rel. Watson, v. Cobb, 2 Kan. 32; Matthews v. Comm'rs of Shawnee Co., 34 id. 606.)

It is true that the statute provided for the annual election of township officers at the general election held in November, 1886, (ch. 195, Laws of 1885,) and if the particular office in contest was a township office, or one to...