The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1863-05-02
State of Kansas
ex rel. Joseph V. Randolph
US.
Quo WAREASro.

State of Kansas
ex rel. Joseph V Randolph
Os Quo WARRANrO.
james B. Cox and
- Robert Parham. -=--
This is an information in the nature of al
quo warranto, such as is provided for by
our statute. Compiled Laws, PIP. 1861
The relator, Joseph V. Randolph. in his
information alleges that on and before the
18th day of April, A. D. 1868. one James
B. Cox, IN the county of Lyon, Kansas, was
the lawful and acting sheriff of said county;
and that one Robert Parham was the under
sheriff aud general deputy of the said Cox,
and that Cox on that day revoked in writing
all authority before that time delegated to
the said Parham, and that on the 10th of
April, 1868, Cox filed such revocation in
the County Clerk Office of the county of
Lyon; and that on the 18th of April, 1868,
Cox appointed, in writing, the relator as
under-sheritf of said county, and on the 10Th
day of April, after the filing of the revoca-
ton of authority TO Robert ParhSm filed
the appointment of the relator in the County
Clerk s Office of the county of Lyon, at four
O'Clock p. NJ. of that day; that the relator
then and there took the oath of Office in the
manner prescribed by law. which oath Of
Office was at that time placed on file in the
Clerks Office; and that Cox then resigned
the Office of sheriff, in writing, which resig-
nation was placed on file in the Clerks Of
fee, on the 18th day of April, 1868; where
by Cox ceased to be sheriff of said county,
and that the Office of sheriff became vacant,
and that the relator thereby became entitled
to exercise and perform the duties of the
ofise of sheriff of Lyon county; but that the
said Cox, since the 18th of April. 1858, and
since his resignation, has intruded into and
continues to intIude into and usurp the Of
fee of sheriff, and that Parham has intruded
into and continues to intrude into and usurp
the office of under-sheriff. And the relate r
prays chat Cox and Parhan be ousted; and
also that the relator may be ad Judged to be
entitled to the Office of sheriff of Lyon coun-
ty. To this the defendants demur. on the
ground that the facts alleged in the informa-
ton are rot sufficient 10 entitle the relaLor
to the relief asked for
AS to Parham, the relator is clearly not
entitled to the judgment asked for; and SO
his counsel admit, for they have dismissed
the proceedings as to Parham.
The sole question, it would seem, raised
by the facts alleged in the information. is.
Was the resignation of Cox, as stated In the
Information, such an Ole as to create a va
cancy in the Office Of sheriff, thereby emit
Ting the relator, as under sheriff. TO succeed
to the office
In order to determine this, it will be nee
essary to refer to the various statutory
provisions bearing upon the question.
Section 81 of the act relating to counties
and county officers, p. 434 Comp. Laws,
provides, among other causes, that every
county office shall become vacant on the
resignation of the incumbent; Section 1870
of the same act Comp. Laws, p. 434) is as
follows: "All county officers who hold their
office by election shall make their resigna-
ton to the officer or officers authorized by
law to fill such vacancies in such Office, re-
spectively.''
To show that this section is applicable to
this case, it is necessary to inquire: 1st. Is
the office of sheriff county office? Cd. If
lac is county officer, does he hold by cleo
ton aud Sd. If he is county officer, and
holds by election, to what officer or officers
should his resignation be made, or in other
words, what officer is authorized to ill the
vacancy, as provided in Sec. 1870? 1
That the Office of sheriff is county of
fee, and that the sheriff holds by election, is
unquestionable Constitution, Art.IX, Sec 8;
Comp. Laws, p. 422, Sec. 68 }, and these TWO
inquiries are only mentioned for the sake of
logical accuracy. This being determined,
the inquiry remains: Who is authorized to
fill vacancy in the Office of sheriff, and to
whom should resignation be made as provi-
ded in Section 1870?
Section 20 of the same act (Com
piled Laws, page 423) provides that al
sheriff, upon induction into Office, shall APP
point an under sheriff. Sec. IL OF the same
act provides that whenever vacancy occurs
IN the office CT sheriff of county, the under
sheriff shall execute the Office OF sheriff until
sheriff shall be elected and qualified. Sec.
86 of the same act Up. 1875, Comp. Laws
provides that when there shall be no sheriff
In county, the coroner shall perform the
duties of sheriff until one shall be elected
and qualified. Sec. 80 of the act regulating
elections Comp. Laws, p. 50O) provides
that all vacancies in any State or county
office. unless otherwise provided for by law, |
shall be TILED by appointment from the Gov
ernor until the next general election; and |
these are all the provisions of law bearing |
on the question. The order of succession,
then, to the Office of sheriff stands: first,
the under-sberitf on the disability of the I
sheriff; next, the coroner on the disability
of the under-sheriff; and last, the Governor |
shall appoint, on the disability of the coro-
ner to act. 1t would seem to be a matter
of no consequence whether the Governor
fills the Office Immediately on the disability
of the sheriff to act, or only upon the hap
pening of some other contingency. There
is no vacancy in the cffice of sheriff as con-
templated by Sec. $50, before referred to,
except upon the disability of both the under
riff ND To- v,latS ,safi