Bawden v. Stewart

14 Kan. 355

• Court: Supreme Court of Kansas
• Decided: January 15, 1875
• Status: Published

Opinion

The opinion of the court was delivered by

Kingman, C. J.:

This is a contest by original proceedings in this court as to who is entitled to the office of district judge of the sixth judicial district. The plaintiff claims by virtue of an executive appointment; the defendant by virtue of an election in November 1874. The sole question presented in the case is this: Did a vacancy exist in the office more than thirty days before the last general election? If such vacancy did exist more than thirty days before such election, then it is conceded by plaintiff that the defendant was rightfully elected and is entitled to retain possession of the office. On the other hand, if such vacancy did not exist more than thirty days before the election, then there could be no lawful election, and the appointment of the plaintiff entitles him to the office. (Sec. 11, art. 3, Constitution.) M. V. Voss was elected judge of said district at the November election 1871, and continued to hold the office until the 12th day of May 1874, and as is claimed by plaintiff until his death on the 21st day of October 1874. The defendant claims that in May 1874 the office became vacant by reason of the removal of the incumbent from the state. There is no doubt that if he did so remove, with a fixed determination to remain away from the state, that such a removal of itself constituted a vacancy. Judge Voss had been in feeble health for two years or more, and a portion of the time was absent from the state, and sometimes was unable to perform the duties of the office when at home. In May 1874 he finally left this state, and on the 21st of October died in California. Thus all the difficulty that arises in the case is, to know with what intent he left the state — whether with a purpose of returning or not. On this point there was much testimony which it is not our purpose to repeat. A very considerable part of it was what was said by Voss about the time, of his departure, and after he was gone; and these statements were so contradictory that the mind would become perplexed by their consideration. To some he said he never would come back. To others he said he would be back in November. Sometimes he said he was done with official action; to others he said he would be back and hold the court in November if his health would permit. These statements, so conflicting, cannot be reconciled. They may readily be explained, and they are by the testimony of his brother, and this is the substance of the explanation: He testifies that his brother when he left never intended to return to reside, but his purpose was to find a climate that would agree with his health, and there remain, but as he was poor, and needed his salary, he would say, and instructed his brother to say, that he would return in the fall and hold the November term of the court, thus holding out the idea that he intended to return, so that no step would be taken to fill the vacancy and deprive him of his salary. With this explanation it is not difficult to weigh and value those expressions of Judge Voss which indicated his purpose to return. They were made with an object other than to show his real intentions. With the morality of this course we have nothing to do. Our object is to. ascertain his intentions so far as we can do so from his own declarations and his acts. It may be asked, why he was not consistent in his declarations that he would return. This may be answered by stating that in most of the instances where he spoke otherwise, save to his relatives, who might be relied on to keep silence, there was some motive to induce a statement of his intentions, or something in his relations to the witness that would naturally lead him to trust him to keep silence. The plaintiff’s explanation of these contradictory statements is, that Voss sometimes felt certain that he would not live to return, and at those times would make the statements that he never would return here, or “never expected to return.” There is some reason in the suggestion, and it is entitled to consideration ; but it does not explain many of the statements, such for instance as those made to the companion of his journey of his purposes in life when he found a climate favorable to his health, and those declarations made to his father and brother. Again, there is no testimony that these declarations, were made while he was in a desponding mood. We must assume that, as a fact, without proof; and were there no other possible explanation, might be compelled to- do so; but cannot in the face of the full and satisfactory explanation offered by the testimony of his brother and of his father. Judge Voss left his district and the state in May 1874, never to return. So far as we can judge from the testimony in this case, it was his intention when he left never to return to the state to reside. The removal, with such an intention, of itself created a vacancy in the office, and such vacancy having existed for more than thirty days before the election, the defendant was rightfully elected to the office, and is entitled to hold it.,

This conclusion renders it unnecessary to discuss another point raised by the defendant, and on which no opinion is expressed.

All the Justices concurring.