The opinion of the court was delivered by
Yalentine, J.:This is an original action of quo warranto, brought by the plaintiff Edward Borton, to inquire by what authority the defendant J. Jay Buck assumes to exercise the duties of the office of justice of the peace in and for the city of Emporia, Lyon county.
The plaintiff filed his petition, and the defendant demurred thereto on the ground that the petition does not state facts sufficient to constitute a cause of action. The petition states in substance among other things that in April, 1869, the Township of Emporia in said county contained within its boundaries the Town of Emporia, an incorporated village; that in said April said Borton and Felix G. Hunt were elected justices of the peace for said Township; that they both resided in the Town of Emporia; that in April, 1870, the Town Of Emporia contained more than two thousand inhabitants, and was organized into a city of the second class; (Gen. Stat., 154, ch. 19, § 1; Laws of 1870, p. 114, ch. 49, § 1;) that the said Borton and Hunt continued to reside and hold their said offices in and for said city of Emporia; that in April, 1871, one justice of the peace only was elected, to-wit, said Hunt, who was his own successor ; that there has not been any successor to Borton elected; that said Borton still remains a justice of the peace in and for said city, and that the defendant has usurped said office.
Does this petition state facts sufficient to constitute a cause *307of action? It will undoubtedly be admitted tbat it states facts sufficient to sbow that the defendcmt bas no right or title to said office; but does it state facts sufficient to sbow tbat tbe flwmbiff bas any sucb right? This is tbe only question in tbe case. It is claimed by tbe defendant, and we think rightly, tbat if tbe petition does not state facts sufficient to sbow tbat tbe plaintiff is entitled to tbe office then tbe plaintiff bas no right to commence or prosecute tbis action, tbat in sucb case tbe County Attorney or tbe Attorney General only could commence or prosecute tbe action: Gen Stat., 760, code, § 654. Tbe real question then is, whether tbe plaintiff bas shown by bis petition tbat be bas a legal right to said office.
l. Term of justice of the peace. Tbe plaintiff was elected a justice of tbe peace in April, 1869, and unless bis office should become vacant by death, resignation, or removal therefrom, or by bis removal from tbe township, be would hold tbe same until April, 1871, (art. 3, § 9 constitution,) and until bis successor should be elected 7J , or appointed and qualified. (Art. 3, § 12, const.) Now, as neither death, resignation, nor removal bas intervened to produce any vacancy in said office, bow can it be said tbat said office bas ever become vacant? Tbe plaintiff still resides where be resided when be was elected, and bas not been removed from bis office by any legal proceedings. Then why does not tbe plaintiff still continue to be a justice of the peace? ~We think no satisfactory reason can be given why be does not.
a Division of Townsinps. Emporia Township was divided by operation of law. Tbe Town of Emporia became a city of more than two thousand inhabitants, and under tbe statutes first above cited was organized into a city of tbe second class; and also under tbe law it became a township for tbe purpose of electing justices of tbe peace, etc.: (Gen. Stat., 1092, cb. 110, § 48.) Tbe balance of Emporia township of course also became a township. Therefore two townships for tbe purposes of justices of tbe peace, etc., were created out of Emporia township as it existed before tbe division. Before tbe division tbe plaintiff resided in what was called tbe Town of Emporia; *308after the division he resided in the same place, but which was then called the city of Emporia, and under the provisions of § 49 of the chapter just cited he became a justice of the peace of that portion of Emporia township which had formerly constituted the Town of Emporia, but which after the division constituted the city of Emporia. Iiis successor has never been elected or qualified (the qualification only is material,) and therefore he still remains a justice of the peace for the city of Emporia: Art. 3, § 12, Const.; State v. Lusk, 18 Mo., 333; People v. Whitman, 10 Cal., 38; Commonwealth v. Hanley, 9 Penn. St., 513. This seems clear to us.
"We have carefully examined all the points made by counsel for defendant and do not consider them sufficient for the purpose he has made them. We (Lo not think that it is necessary that every justice of the peace shall have precisely the same jurisdiction, or the same duties to perform. But if it is necessary, then the act imposing additional duties upon justices of the peace of cities would be void, and such void act would not oust such justices from their offices. Neither do we think that it is necessary that all the townships in the state shall have precisely the same powers, or precisely the same number and kind of officers, any more than it is necessary that all the cities or all the counties in the state shall have precisely the same powers,- and precisely the same number and kind of officers. The constitution nowhere defines the powers or duties of townships, or the number or kind of officers that a township shall have. (Art. 9, § 2, Const.) This is all left to be prescribed by the legislature.
Sections 48 and 49, cli. 110, leía valid. Neither does it appear to us that sections 48 and 49 of the “Act relating to Townships and Township Officers,” (Gen. Stat., 1092,) are unconstitutional, as is contended by counsel for defendant. While we feel clear that section 49 is not unconstitutional so far as it affects this case, we , „ „ , , , ’ . also, alter a careful consideration of ail the possible divisions of townships that may be made, are unable to see how it would in any case be unconstitutional. Even if the division should work an increase of the number of the justices *309in any township it would not be unconstitutional for that reason, because the number of justices may rightfully and legally be increased by the legislature. (Art. 3, § 9, Const.)
The plaintiff does not hold his office by virtue of any election or appointment of the legislature. He holds it under an election of the people; and he still remains a justice of the peace for at least a portion of the people who elected him, and for a portion of the territory for which he was elected. We do not understand that the defendant claims that the legislature could by law legislate a justice of the peace out of office; but he does claim that the plaintiff was elected justice of the peace for Emporia township; that when said township was divided that that portion of the township not included within the city of Emporia became Emporia township; that the city became another township; that the plaintiff could act as justice only for the township for which he was elected, and therefore when the division was made that it was necessary for the plaintiff to remove into that portion of Emporia township which was not included in the city of Emporia. This claim of the defendant presupposes that said sections 48 and 49 are unconstitutional, which we do not admit.
4. cities are for°eertS!üns” purposes. As the city of Emporia of itself, after the division, constituted a township, there can be no good reason given why it may not as well called “ Emporia township ” as that portion of the township outside of the city, suppose it will hardly be claimed however that a justice of the peace is elected for a mere name, or for a township of a certain name. We suppose it will hardly be claimed that the mere name is of any great importance. If the township of Emporia had been equally divided and one-half called Neosho Township and the other half called Cottonwood Township we hardly suppose that it would be claimed that the plaintiff would thereby be ousted from his office, or that his office would thereby become vacant; and yet there would be no Emporia township in which he could hold his office. In fact, when a township is divided neither portion can technically be said to be the old township, unless a half can be said in such *310cases to be tbe whole. In this connection we would refer to the ease of The State v. Dilloway, 31 N. J., 12, and the other cases cited in the brief of counsel for plaintiff. The defendant claims that the case of The State v. Messmore, 14 Wis., 163, and perhaps one or two other cases, are against this view. The cases that he refers to are not parallel however with this. The Wisconsin case comes the nearest. That was an action to determine whether the defendant Messmore was circuit judge of the sixth judicial circuit; but as both the statutes and the constitutional provisions under which he claimed to hold differ from ours the decision in that case is not authority in this. We presume that decision was correct under the Wisconsin constitution and laws, but still there is very great room to doubt its correctness there, and it certainly would not be law here.
J. Jay Bucle, defendant, for the motion. Pmjgles c& Plumb, for plaintiff, in opposition.The demurrer to the petition is overruled, and judgment is rendered for the plaintiff in accordance with his petition.
All the Justices concurring.Antee the foregoing opinion was filed, the defendant Bucle filed a motion for leave to answer the plaintiff’s petition. This motion was supported by affidavit, and accompanied by a copy of the answer sought to be filed. The motion was heard and decided at the January Term, 1872. The facts alleged in the answer are fully stated in the following opinion of the court denying the motion:
The opinion of the court was delivered by
Yalenitne, J.:This case was heard and decided at the last term of this court upon the petition of the plaintiff and the demurrer thereto of the defendant. The demurrer was overruled, and judgment rendered for the plaintiff on the petition. The defendant now asks to file an answer to the petition. He has shown by affidavit that he has used sufficient diligence, and *311that he is entitled to file the answer provided it states any defense to the plaintiff’s petition. The proposed answer is submitted with the affidavit for our inspection. The facts which the answer sets forth present only two new questions — only two questions which have not already been considered and decided in this case. First, it shows that at the regular election held in the city of Emporia on April 3d, 1871, one G. W. Frederick was duly elected a justice of the peace for the place now claimed by the plaintiff, but that said Frederick declined, to qualify, and has never qualified; that after he was duly declared to be elected, and on the 5th of April, 1871, Frederick, by “ a written communication to the Governor of Kansas, refused to qualify to said office, and requested the said governor to appoint and commission this defendant (Buck) to said office of justice of the peace for said city.” Second, the answer also shows that on the 6th of April, 1871, the governor appointed the said defendant to said office, and that afterwards the said defendant duly qualified.
6. Election of mífefqiSiicaney. Are these facts a good defense to the plaintiff’s action? Or, in other words, upon the admitted facts set forth in the plaintiff’s petition, and these facts, is the plaintiff, or is the defendant, entitled to the said office of justice of the peace ? The plaintiff was the justice of the peace April 3d, 1871; at that time Frederick was elected his successor; two days thereafter the votes were canvassed; Frederick was declared elected, and he declined to qualify; on the third day after the election the defendant was appointed by the governor; the defendant qualified; Frederick never qualified. Who, then, is the justice of the peace? Our statutes give a justice of the peace twenty days after he has been notified of his election within which to qualify:- Gen. Stat., 1085, ch. 110, § 16. And it might be very seriously questioned whether the refusal of a justice of the peace to qualify, at any time previous to the expiration of the twenty days, would be of any force or effect, or whether an appointment of of another person to such office, founded upon such refusal, would be of any validity.
*312Could not the justice-elect, after he had refused to qualify, change his intentions within the twenty days, and then qualify? But without expressing any opinion upon this question, we shall pass to the others. The first question is, whether the election of Frederick, and his refusal to qualify, vacated the office held by the plaintiff. We think it did not. We have no statute or constitutional provision in this State, as they have in some of the other States, providing that if the successor to any person in office* shall fail to give bond or qualify, that the office shall be deemed vacant. And hence any decision in any State, founded upon such a statute or constitutional provision, can have no application in this State] On the contrary, we have a constitutional provision that declares that “All judicial officers shall hold their offices until their successors shall have been qualified.” (Const., Art. 3, § 12.) This provision does not declare that a judicial officer shall hold his office until his successor shall refuse to qualify; or until after the time for him to qualify has elapsed; but it declares that such judicial officer shall hold his office until Ms successor shall have been qualified. And if his successor should never qualify, it would seem to follow as a necessary corollary, that such judicial officer could, if he should choose, continue to hold his office indefinitely. Under this constitutional provision, we think Borton, the plaintiff, continued to legally hold the office of justice of the peace, notwithstanding that his intended successor was elected and refused to qualify.
y. vacancy in judicial office; when govern-ox can fill by appointment, This brings us to the second question, which is:. Was the act of the governor appointing the defendant a justice of the peace valid? It seems to be the policy of this State that all judicial officers shall be elected by tfie people. All are originally elected. The governor can appoint judicial officers onlv to . -, -, . . . ,,, _ ml yacancies, and ins appointees hold only till the _ , x x , „ J next regular election, etc., (Const., art. 3, § 11,) *313when their successors should be elected by the people: State, ex rel. Watson, v. Cobb, 2 Kas., 32, 53 to 56. And as almost every judicial officer who holds over after his term has expired, was elected by the people, we would expect to find that he would continue to hold his office under the constitution until his successor could be elected by the people, and that the governor could appoint only in a case where the office was absolutely vacant;* and such we thint the constitution does provide. The governor can appoint only to fill vacancies. The constitution provides that, “ In case of vacancy in any judicial office, it shall b& filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.” Const., art. 3, § 11. Now the office in the present ease was not vacant; it was already filled, and legally filled; and how an office filled can be an office vacant is not easily understood. There is no provision for the governor to remove a judicial officer, or to vacate his office. He cannot create a vacancy; he can only appoint when the “vacancy shall have happened
But it is claimed by the defendant that the office was vacant in one sense, though filled in another, when the said appointment was made. Even if this were true, (and that words can be used in different senses cannot be denied,) still it it was not vacant in the sense contemplated by the constitution: Commonwealth v. Handy, 9 Penn. St., 513; State v. Lusk, 18 Mo., 333. In order to prove that the office was vacant in the sense used in the constitution, the defendant lays down the following propositions: The term of office of a justice of the peace is just two years, and no more; the term of office of the plaintiff expired on the 5th of April, 1871, at the time when his successor was duly declared to be elected; after that time, and until his successor was qualified, he was filling a portion of his successor’s term, and not a portion of his own term. Now admit that all of these propositions are true, and still they do not prove what *314the defendant claims for them. An office is an entire thing; it is a unity, although it may be composed of many terms. It is not two. offices because it may. be composed of two terms. However many terms it may be composed of, it is still only one office. And although an officer’s term may have expired, if he holds over he is still filling the office. An officer is as much filling the office after his successor has been elected, and before he has qualified, if we consider that he is then filling a portion of his successor’s term, as though we should consider him to be filling an extended portion of his own term. If he is filling a portion of his successor’s term, he is doing so under and by virtue of the constitution, the highest authority known to our State government; and how can his right to so fill it be abridged by the governor? A person may be elected to a.judicial office when there is no vacancy, and qualify and take the office on the very day that his predecessor’s term expires, or at any time afterwards within the time prescribed by law; but a person cannot be appointed to a judicial office unless an absolute vacancy has already occurred. He cannot be appointed in contemplation of a vacancy, which it is supposed may in the future be created.
It seems to be admitted by the defendant that if that portion of time, after an officer’s successor has been elected and before he has qualified, is a portion of this officer’s original term, then, that there was no vacancy in the case for the governor to fill. Our decision is that as Frederick never qualified, he never became a justice of the peace, but that the plaintiff continued to hold the office; that he continued to be the justice of the peace, and that there was no vacancy in the office for the governor to fill; and therefore that the plaintiff continues' to hold the office, and that the defendant has no right thereto.
The defendant, who is a lawyer, has been his own counsel in this case. And he has shown by his ability in presenting his side of the same to this court, not only that he is amply competent to fill the office of justice of the peace, but that he needed no other counsel to assist him in this court. If we have erred, it is certainly not his fault.
*315Tbe motion, for leave to file an answer will be overruled, and tbe judgment heretofore rendered will be allowed to remain in full force.
All the Justices concurring.I * Tee court use the term, “any person in office" 3STo such provision exists as to Township officers, which class includes Justices of the Peace. But as to County officers, see §179, ch. 25, Gen. Stat., p. 294; The State, ex rel., v. Matheny, 7 Kas., 327. And as to State officers, see § 81, ch. 103, Gen. Stat., p. 989. — Reporter.]
[ * This should probably be qualified so as not to include the office of Prodate Judge, said office being a County Office: §§ Si, 86,179, ch. 25, Gen. Stat. See note, ante p. 312. — Reporter.]