
    M. M. Hale v. J. B. Evans.
    
    January Term, 1874.
    1. Justice of the Peace: Vacancy: Successor. Where A. is duly elected justice of the peace for the term of two years, and qualifies, and thereafter, during the first year of his term, resigns his office, and B. is appointed to fill the vacancy more than thirty days prior to the first succeeding regular election, and then at such election elected justice of the peace, this .election is also only to fill the vacancy, and his term expires at the expiration of the term for which A. was elected.
    2. -: Certificate of Election: Prima Facie Evidence. The recitals of a certificate of election as to the duration of a term are, at best, but prima facie evidence of such duration, and can always be overthrown by competent testimony.
    
      *Original proceedings in quo warranto.
    
    The case is stated in the opinion.
    
      L. Hanback and T. K. Johnston, for plaintiff.
    The constitution, art. 3, § 11, provides 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.” Township elections held on the first Tuesday in April of each year are regular elections. Gregg was elected at a regular township election, to serve as a justice of the peace for the period of two years, as provided by law. On his resignation, Evans was appointed by the governor to fill the vacancy occasioned thereby, and, being to fill a vacancy in a judicial office, he could only hold it, under said appointment, until.the next township election, to-wit, the first Tuesday in April, 1872, which occurred more than thirty days after the vacancy happened. At that time his right to hold under the governor’s appointment expired, and Evans was elected on that day a justice of the peace. As there was no other vacancy of the office at that time, except that occasioned by the resignation of Gregg, and as Gregg’s term would have expired on the first Tuesday in April, 1873, Evans could evidently only have been elected for the unexpired portion of his term. Hence Evans ceased to be legally a justice of the peace on the first Tuesday in April, 1873. Every day he has held over that time he has done so contrary to law, and is a usurper of the rights of the plaintiff, who was then elected as his successor.
    
      Clemens é Jones, for defendant.
    The defendant, Evans, claims that he was duly elected a justice of the peace in April, 1872, for the term of two years, *whieh time does not expire till April, 1874, and makes profert of his certificate certifying that fact. Hence the defendant denies that he was elected to fill a vacancy. In what year are justices of the peace regularly elected for the full term ? and was Evans elected to fill a vacancy? Section 9 of article 3 of the constitution provides that “two justices of the peace shall be elected in each township, whose term of office shall be two years.” And the judicial officers provided for by this article were “to be elected at the first election under this constitution,” and the provision of section 11 requiring such officers “to reside in their respective townships, counties, or districts during their respective terms of office” shows clearly that justices of the peace were included in this provision for an election. In order to determine whether Evans was regularly elected for the full term, it is necessary to compute, by terms of two years each, from the date of the first election for justices of the peace in Soldier township, under the constitution ; because the first justices under the constitution would hold for two years, and no new term could commence running before the expiration of the first term, and the same is true of each successive term. If, then, we can definitely determine in what year the first-election for justices of the peace, under the constitution, was held, we have a key which will easily unlock this mystery. The term “first election,” in the constitution, undoubtedly means the first election under the constitution for any given office. When applied to the office of justice of the peace, it means the first election for justice in the township for which the justice is elected. When a new township is created, the justices elected at the first regular township election in such township are elected for the full term, although at the same time no justices are to be elected in other townships. The first justices elected in a new township are not elected to fill vacancies, for hitherto there has been no office in existence in that township to become vacant; and the justices elected for Soldier township, at the first regular election held for that office in that township after the admission of the state into the Union, were elected for the *term of two years. Soldier township was organized April 2, 1860, and the first election was ordered therein for the fourteenth of April, 1860, being the second Tuesday in April. At that election .two justices were elected, and certificates issued to them for the term of two years. The constitution does not seek to vacate the office of any officer previously elected under the territorial laws. On the contrary, section 3 of the schedule provides for the continuance of all such officers until they shall be superseded by an election under the constitution. Hence the constitution, upon the admission of the state, did not vacate the offices of the two justices elected in Soldier township in 1860, and they would hold regularly until April, 1862. The first election under the constitution must have occurred in April, 1862; and then the regular election for justices for two years in Soldier township must have been the election held in April, 1872. At that election Evans was elected, and hence will lawfully hold his office until his successor is elected and qualified in 1874.
    Counsel for plaintiff assumes that Evans was elected as Gregg’s successor. Such, however, does not seem to be the fact. The record does not show that he was so elected, and this assumption is the vital portion of counsel’s argument.
    
      
       See Frazer v. Miller, ante, *459; Odell v. Dodge, 16 Kan. 449.
    
   Brewer, J.

This is an original action in the nature of quo toar■ranto, brought to determine the right of the respective parties to the office of a justice of the peace of Soldier township, Shawnee county. The facts in relation thereto appear in the following agreed statement of facts: “It is agreed that on the fourth of April, 1871, S. C. Gregg was elected a justice of the peace in Soldier township, and that a certificate of election to serve as such justice for the period of two years was issued to him by the board of county commissioners of said county, under the seal of the county clerk; that the said S. C. Gregg duly qualified and exercised the duties of said office until some time in September or October of that year, [1871,j when he resigned; that J. B. *Evans, the defendant in this action, was appointed by James M. Harvey, the then governor of the state of Kansas, to fill the vacancy occasioned by Gregg’s resignation, as provided by law; that on thefourteenth of November, 1871, the said Evans filed his bond, and was duly qualified as a justice of the peace under the said appointment; that at the next regular election held in said Soldier township, on the second of April, 1872, the said J. B. Evans was duly elected a justice of the peace, the returns of said election not showing that he had been elected to fill a vacancy, and that a certificate of election was issued to him by the board of canvassers on the ninth of April, 1872, authorizing him to exercise the duties of said office for a period of two years therefrom; that on first of April, 1873, at the regular election then held in said Soldier township, M. M. Hale (the plaintiff) and J. M. Wilkinson were elected justices of the peace for said township, and that a certificate of election was issued to each of them by the said board of canvassers authorizing each of them to hold and exercise the duties of a justice of the peace for said township for a period of two years from the date thereof; that on the certificate of M. M. Hale it was noted that he was the successor of J. B. Evans; that the said M. M. Hale duly qualified; that the said Evans has refused to deliver up the books of said office to either the plaintiff or J. M. Wilkinson, but still continues to hold and exercise the duties of the office of a justice of the peace for said Soldier township. It is further agreed that the said Soldier township was organized, and the first election therein for- justice of the peace was held, and all proceedings thereunder were had, as alleged in defendant’s answer, at the time therein stated.”

So far as the question turns upon the facts stated in the first part of this agreed statement, there is at present no room for controversy, under the decisions already made by this court. State v. Cobb, 2 Kan. *32; Bond v. White, 8 Kan. *333; Frazer v. Miller, ante, *459. The election in 1872 was only to fill a vacancy, and the term of Evans -expired in April, 1873. The form of the certificate to Evans, while it may be prima facie evidence, is not conclusive. The facts which show the duration of the term may always be shown, and, when shown, control. The facts set forth in the answer, and referred to in the latter part of the agreed statement, are *that Soldier township was organized April 2,1860, and the first election therein was ordered for the fourteenth day of April, 1860, being the second Tuesday in April. At that election two justices of the peace were elected, and certificates issued to them for the term of two years. The inference sought to be drawn from this is that every second year thereafter would be the time for the regular election of justices in that township; and therefore that in 1872 Evans was properly elected for ■» full term, and the real mistake was in the certificate to Gregg in 1871. The first and a sufficient answer to this is that, under the law in force at the time of the organization of Soldier township, only one of the first justices was elected for a term of two years, the other justice being elected for the term of only one year. Subsequently each justice was to be elected for a term of two years. Laws 1859, p. 644, §§ 55, 56; Laws 1860, p. 229, § 2; Id. p. 233, § 22. Probably other equally sufficient answers might be given.

Counsel for defendant says that plaintiff’s ease is based upon the assumption that Evans was elected the successor of Gregg, while the agreed statement does not show such to have been the fact. There is force in this suggestion, and it throws doubt on the case. Yet we think the agreed statement, by fair intendment, shows that he was elected such successor, and that the parties so understood in preparing the agreed statement.

Judgment will be entered in favor of the plaintiff for the possession of the office, and books and papers, and for costs.

(All the justices concurring.)  