State ex rel. Kellogg v. Plymell

The opinion of the court was delivered by Horton, C. J.: In the fall of 1889, C. M. Plymell became a candidate for the office of county commissioner of the third district for Meade county, while he was holding the office of city clerk of West Plains, a city of that county, of the third class. At the election on the 6th of November, 1889, he was [297] successful. He subsequently qualified and acted as county commissioner. Paragraph 1622, Gen. Stat. of 1889, reads: “No persons holding any state, county, township or city office, or any employer, officer or stockholder in any railroad in which the county owns stock, shall be eligible to the office of county commissioner.” This action was brought to oust Plymell from his office as commissioner. It is contended that he was ineligible to be elected to this office while holding the office of city clerk. It is further contended he was holding the office of city clerk of West Plains when he qualified as county commissioner, on the 26th day of November, 1889, and that he also continued to hold the office of city clerk after he entered upon the discharge of his duties as county commissioner, on the 13th day of January, 1890. On the part of the defendant, it is admitted that he was the duly-appointed and acting clerk of the city of West Plains when he was elected to the office of county commissioner, but he claims that in November, 1889, he resigned the office of city clerk, and did not hold that office when he qualified as county commissioner, or when he entered upon the discharge of his duties as such officer. Whether the defendant was ineligible to be elected to the office of county commissioner while holding the office of city clerk, we need not decide. The authorities upon this question are somewhat conflicting. (The State v. Clark, 3 Nev. 570; Carson v. McPhitridge, 15 Ind. 327; The State v. Murrey, 28 Wis. 96; Searcy v. Grow, 15 Cal. 121; Brady v. Howe, 6 Miss. 626; The State v. Fisher, 28 Vt. 714; Privitt v. Bickford, 26 Kas. 52.) We are not satisfied from the evidence introduced upon the trial that Plymell resigned his office as city clerk in good faith before the 13th day of January, 1890, when he entered upon the duties of the office of county commissioner. He testified that he resigned his office of city clerk between November 10 and 15,1889. Two members of'the city council, I. E. Smith and James Apple, support his evidence, and testify that the city council accepted his resignation. Plymell admits, how [298] ever, that his resignation was not in writing, and it appears that no record thereof was kept by himself or the city council, and no written minute can be found in the recorded proceedings of the city council showing any such resignation. He testified, among other things, as follows: “ Q,ues. Let me ask you, Mr. Plymell, if there was not a special meeting of the city council about the 23d day of April, 1890, at which you tendered your resignation as city clerk? Ans. I think there was. “Q,. Were you city clerk at that time? A. I had resigned before, but it had not been put on the minutes of the meeting; so I handed in my resignation in writing'about that time. “ Q,. Who were the city council at that time? A. I. E. Smith, C. E. Woolen, O. J. Loof borrow, James Apple, and Perry Marker. “Q. Who was the mayor? A. M. S. Parsons. “Q. Was your resignation accepted at that time by the council? A. It was. “Q,. Did you perform any duties as city clerk of West Plains after the resignation you speak of, about November the 10th, 1889? A. After I first resigned, and after they had accepted my resignation, the acting mayor told me to act as city clerk and do the work until they could appoint another.” On February 5,1890, Plymell, as city clerk, attested the signature of W. C. Gould, mayor, to an order to O. S. Rockey, county treasurer, in favor of E. M. Mears, the city treasurer of West Plains; and on April 21, 1890, as city clerk, he attested the signature of M. S. Parsons, mayor, to an order of C. S. Rockey, county treasurer, in favor of E. M. Mears, city treasurer of the city of West Plains. R. W. Griggs testified that he was the county attorney of Meade county from September, 1888, until January 9, 1891; that on April 23, 1890, he wrote to Plymell informing him that he was illegally holding the office of county commissioner; that the next day he saw him, and he said, “I resigned the office of city clerk and filed a new bond,” or that he would do so shortly, and that would enable him to continue in office. Moses Black testified that he is the register [299] of deeds for Meade county; that the defendant filed his official bond on November 27, 1889; that he filed another bond on the 24th day of April, 1890, and that he filed still another bond on the 2d day of May, 1890. W. C. Gould testified that he was the mayor of West Plains from April, 1889, until February, 1890; that the defendant was the city clerk from the spring of 1889 until February, 1890, and that he never resigned or offered to resign his office during that time. 'M. S. Parsons testified that he is the mayor of West Plains; that Plymell was the city clerk up to April, 1890. Henry B. Stone testified that he was a councilman of the city of West Plains from April, 1889, until January, 1890, and that Plymell was the city clerk and discharged the duties thereof during that time. After his pretended resignation, in November, 1889, of the office of city clerk, Plymell continued to hold the office of city clerk, and continued to act as such officer for several months after he entered upon the discharge of the duties of his office of county commissioner. This is not permitted. A person holding a city office cannot, at the same time, hold the office of county commissioner. (Rogers v. Slonaker, 32 Kas. 191; Gen. Stat. of 1889, ¶ 1622.) Plymell violated the statute in attempting to qualify and hold the office of county commissioner for several months, while he was still city clerk. The prayer of the petition will be granted, with costs. All the Justices concurring.