Peters v. Board of State Canvassers

Supreme Court of Kansas

Peters v. Board of State Canvassers

17 Kan. 365

CourtSupreme Court of Kansas

DecidedJuly 15, 1876

StatusPublished

Cited by10 cases

This text of 17 Kan. 365 (Peters v. Board of State Canvassers) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peters v. Board of State Canvassers, 17 Kan. 365 (kan 1876).

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Opinion

Per Owriam:

The motion for a mandamus must be overruled, in accordance with the decision of this court in the case of The State, ex rel. Goodin, v. Thoman, Auditor, &c., 10 Kas. 191. In that case we held, that the term of office of judges of the district courts was fixed by the constitution at four years; that it was not in the power of the legislature [368]*368to extend or lengthen that term, either directly or indirectly; and that when a district judge was legally elected at the general election in 1867, for a full term, an election for a successor, and for a full term, was rightly held in 1871 — such second term commencing in January 1872. In the case at bar, the facts alleged in the petition show, that the failure to hold an election in the ninth judicial district in 1871, did not change the commencement of the regular term of office of judge for that district. • Nor did ch. 117 of the laws of 1872 have that effect, for the reason above stated. It also follows, that when Judge Brown was reelected in November 1872, he was chosen for the unexpired portion of that term which had commenced on the second Monday of January preceding. Resigning before such term expired, the'vacancy was filled by executive appointment., Whether at the election held in November 1875, the then remaining unexpired term of two months should have been filled by election, as well as that a judge should be then so chosen for the full term next ensuing, we need not now discuss. (Const., art. 3, § 11.) No such election is shown to have been held. The petition shows that a judge for the ninth district was duly chosen at such general election of 1875, and we hold that the person so elected was elected for the term of four years from the second Monday in January 1876. No vacancy having since occurred in such office, no election for judge of said ninth district could be legally held in November 1876, and the board of state canvassers rightly refused to canvass the votes cast in and returned from such district for such office.

Mandamus refused. Judgment will be entered in favor of the defendants for their costs.

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Per Owriam:

The motion for a mandamus must be overruled, in accordance with the decision of this court in the case of The State, ex rel. Goodin, v. Thoman, Auditor, &c., 10 Kas. 191. In that case we held, that the term of office of judges of the district courts was fixed by the constitution at four years; that it was not in the power of the legislature [368]*368to extend or lengthen that term, either directly or indirectly; and that when a district judge was legally elected at the general election in 1867, for a full term, an election for a successor, and for a full term, was rightly held in 1871 — such second term commencing in January 1872. In the case at bar, the facts alleged in the petition show, that the failure to hold an election in the ninth judicial district in 1871, did not change the commencement of the regular term of office of judge for that district. • Nor did ch. 117 of the laws of 1872 have that effect, for the reason above stated. It also follows, that when Judge Brown was reelected in November 1872, he was chosen for the unexpired portion of that term which had commenced on the second Monday of January preceding. Resigning before such term expired, the'vacancy was filled by executive appointment., Whether at the election held in November 1875, the then remaining unexpired term of two months should have been filled by election, as well as that a judge should be then so chosen for the full term next ensuing, we need not now discuss. (Const., art. 3, § 11.) No such election is shown to have been held. The petition shows that a judge for the ninth district was duly chosen at such general election of 1875, and we hold that the person so elected was elected for the term of four years from the second Monday in January 1876. No vacancy having since occurred in such office, no election for judge of said ninth district could be legally held in November 1876, and the board of state canvassers rightly refused to canvass the votes cast in and returned from such district for such office.

Mandamus refused. Judgment will be entered in favor of the defendants for their costs.

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17 Kan. 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peters-v-board-of-state-canvassers-kan-1876.

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