Norton v. Graham , 7 Kan. 166 ( 1871 )

The opinion of the court was delivered by

Valentine, J.:

This is an original proceeding in quo warranto, brought by .the plaintiff Roswell Norton, to determine whether himself or the defendant, Calvin H. Graham, is county treasurer of Coffey county. At the general election in November, 1869, both parties were voted for, for that office. After the election, the county commissioners canvassed the votes and declared the plaintiff to be elected to said office by a majority of one vote, and the county clerk issued to him a certificate of election. He then gave bond and took the oath of office. But the defendant contested the election. A court was organized, under the provisions of “ an act to regulate elections,” (Gen. Stat., 424, §§ 85 to 105,) for the trial of said contest, and the case was tried before said court. Everything in the organization of the court, and everything that took place during the trial seems to have been regular, except that only'two members of the court, and not three, (although all were properly notified,) met and heard the case. These two were the probate judge and one of the associates. The other associate did not meet with them. The court thus constituted heard and determined the case, and rendered a judgment declaring that said defendant, Graham, was duly elected to said office by a majority of five votes.

1. Court for contioL0! how composed. The first question in the case, and the only one if we determine it in the affirmative, is, whether said court was legally constituted ; that is, whether the court could be legally composed of two members only. This question we think is fully determined by the statute. Section 87 of the act already referred to provides how the court shall be constituted. It reads as follows:

“ Sec. 87. The court for the trial of contested county-elections, shall be thus constituted: The probate judge shall be the presiding officer, and he shall select two disinterested persons who shall be associated with him.”

Subdivision 4 of § 1 of “An act concerning the construction of statutes,” (Gen. Stat., 999,) gives authority to any two members of the court to act. It is as follows : “ Words giving a joint authority to three or more public “officers or other persons, shall be construed as giving such authority to a majority of them, unless it be otherwise expressed in the act giving the authority.” It will not be contended that it is “ otherwise expressed in the act giving the authority ” to the probate judge and two other persons whom he shall select, to act as a court for the trial of contested county elections; nor will it be contended that it is “otherwise expressed” in any other act.

2. Findjudgmenfc; how reviewed. The question then, of who is entitled to said office under said election, ’having been once tried and determined by a court of competent jurisdiction, it will hardly be contended that the same question may be again tried in an original proceeding, as this is. The question can come to this court properly, only on petition in error, after the same has been acted on in the district court. The judgment of this court is for the defendant.

All the Justices concurring.