State ex rel. Peacock v. Orvis

Downer, J. The demurrer to the complaint must be overruled. [238] Tbe principal objections to the complaint urged upon the argument are: 1st. That the action should have been brought in the name of the attorney general, or there should have been an allegation that he refused to act. 2d. That there was no notice given as required bylaw of the election of a sheriff. Section 6, ch. 160, R. S., provides that the action may be brought in the name of the state by the attorney general upon his own information; also by a private person on his own complaint, “ when the office usurped pertains to a county, town, city or districtThe office of sheriff, alleged in this case to be usurped, clearly pertains to a county, and the action is rightly brought in the name of the state on the complaint of the relator, without alleging the refusal of the attorney general to act. The constitution of the state (sec. 4, art. YI) provides that sheriffs shall be chosen by the electors of the respective counties once in every two years, and as often as vacancies shall happen. Section one,'art. XIII, provides that the general election shall be holden on Tuesday succeeding the first Monday of November of each year. Thus the constitution provides for and fixes the time of the election of sheriffs. The authorities cited by the counsel for the relator are to the effect that in case of the death of the sheriff, the electors take notice thereof, and of the election fixed by law to elect his successor, without any special notice being given; 'and that although it was the duty of the defendant, being under-sheriff and acting as sheriff, to order and give notice of the election of sheriff, as required by chapter seven of the Revised Statutes, yet the omission so to do will not render void the election. And there is good reason for so holding ; for were it otherwise, it would be in the power of the defendant, by neglecting his duty, to prevent the election of his successor, and thusieep himself in office. We do not deem it necessary to notice the other points urged upon the argument, as they are obviously untenable. By the Court. — The demurrer is overruled, and leave given to answer within twenty days.