State ex rel. Day v. Buckland

The opinion of the court was delivered by Horton, C. J.: It appears from the agreed statement of facts, that Bucldand and Goit were each candidates at the general election in November, 1877, for the office of justice of the peace of Great Bend township; that the proper board of canvassers duly declared Goit elected to the office, and issued to him a certificate of election; that he filed his official bond and oath of office at the time and in the manner prescribed by law. This certificate of election, being regular in form, and signed by proper authority, and being issued upon a legal canvass of the votes of the election, constitutes prima faoie evidence of title to the office in Goit, which can only be set aside by such proceedings for contesting the election as the law provides; ' and as he qualified as required by law, he is entitled to the office as against every other person laying claim thereto, until the result so declared is legally set aside. Bucldand “cannot avoid the effect of the decision of the canvassers by simply holding on to the office, and claiming that the decision of the canvassers was erroneous, or that the electors who cast the votes were not legal electors, or that fraud was practiced which, when investigated, would show a different result. The law will not permit him, on the pretense of championing the losing party, to hold on to the office for his own benefit.” (The Supervisors v. O’Malley, 46 Wis. 35; McCrary on Elections, § 204.) Any other doctrine would be most pernicious in its results. Any evil-disposed person in office at an election might contest [262] the right of his successful rival, without any reason therefor, other than to protract the contest as long as possible, in order to deprive the holder of the certificate of a part of his term. The particular facts of the case of The State v. Durkee, 12 Kas. 308, to which we are referred, are not like the facts here; and hence that case is not applicable. The mere pendency of the contest over the election brought by Bucldand, as a contestor against Goit, as contestee, is no valid defense in this action; and as Bucldand, under the agreed statement of facts, does not show himself entitled to the office in contention, it follows that he is wrongfully holding the office of justice of the peace, and therefore judgment will be rendered in favor of the state and against the defendant, as prayed for in plaintiff's petition. We deem it unnecessary to consider the motion filed for judgment on the pleadings, as the parties have agreed upon the facts, and hence no additional pleadings are requisite, or if needed they will be considered as made. All the Justices concurring.