By reference to the opinion of Justice Helm, delivered in this case {ante, p. 138), on issues made by the demurrer to the respondent’s plea, it will be seen that the pleadings were regarded as presenting an issue of fact, namely, did- the newly-e'lected county commissioner, Ordway, duly qualify as such by filing his official bond, and by taking his oath of office, prior to the 10th of January, 1888. Upon this issue the proofs since taken and submitted are undisputed, and to the effect that Ordway duly qualified as county commissioner, under the law, in the preceding December. His successor having thus duly qualified, May’s term of office expired at midnight on the 9th of January. He could- not, therefore, legally participate in the deliberations and proceedings of the board on the following day, the 10th of January, and the acts of the board, in so far as they depend upon his vote, were without validity. It follows that the alleged appointment of respondent to fill the vacancy in the office of county treasurer at the meeting of the board on the morning of the 10th, depending as it did on the vote of May, was without force or validity. The judgment must be for the relator.
Judgment for relator.