conferred, to fill a vacancy, appointed 'a person to the office of Justice of the Peace, made vacant by the resignation of the incumbent, it was held that the person appointed could hold only until the first election thereafter, which occurred more than thirty days after the happening of the vacancy, and if that election occurred before the expiration of the original term, the person chosen thereat could hold only for the remainder of the original term. Where the law fixes the term of an office, and provides when it shall be filled, as, for example, at the regular election in each alternate year, the term is not affected by the death, resignation or removal of the incumbent. The regular election for the full term must take place precisely as if no vacancy had occurred. The recitals in a certificate of election, as to the duration of the term, are at best but prima facie evidence of such duration, and can always be overthrown by competent testimony. It has been therefore held that where a person was elected at an election occurring in the middle of the original term of two years, the fact that he received a certificate declaring that he was chosen for two years, made no difference as to his rights. (Hale vs. Evans, 12

Kansas, 582.)

§ 262. It is essential to the validity of an election to office, that it be authorized by some statute in force at the time. By a statute of California it was provided as follows; "Harbor commissioners are elected and appointed, and hold their office as prescribed in the title VI, of part III, of this code." On referring to that portion of the code it was discovered that no provision for such election had been

made. It was accordingly held that where a Harbor commissioner resigned the office, no successor could be chosen by the people, until the passage of a law to authorize them so to do. It was further held that inasmuch as the Governor had power to fill all vacancies, the person appointed to fill the vacancy in the office of Harbor commissioner, occasioned by the resignation of the incumbent, would hold until the next legal or authorized election by the people. (People vs. Matthewson, 47 Cal, 442.)

§ 263. In State vs. Jones, (19 Ind., 359,) the following propositions were laid down:

1. "Where it appears prima facie that acts or events have occurred subjecting an office to judicial declaration of being vacant, the authority authorized to fill such vacancy, supposing the office to be vacant, may proceed before procuring a judicial declaration of the vacancy, and appoint or elect, according to the forms of law, a person to fill such office; but if, when such person attempts to take possession of the office, he is resisted by the previous incumbent, he will be compelled to try his title and oust such incumbent, or fail to oust him in some mode prescribed by law.

2. If such elected or appointed person finds the office in fact vacant, and can take possession uncontested by the former incumbent, he will be an officer de facto, and should the former incumbent never appear to contest his right he will be regarded as having been an officer de facto and de jure; but should such former incumbent appear after possession has been taken against him, the burden of proceeding to oust the then actual incumbent will fall upon him, and if in such proceeding it is made to appear that facts had occurred before the appointment or election,

justifying a judicial declaration of a vacancy, it will be then declared to have existed and the election or appointment be held to have been valid."

And it is doubtless true as here stated, that no judical declaration of a vacancy is absolutely necessary, and that if a vacancy in fact exists, the proper authority may fill it. But where the whole body of the electors constitute the proper authority to fill a vacancy, if they proceed upon the idea that its existence is a matter of general notoriety, and without any notice or proclamation of the same, it must appear that it was notorious and that the whole body of the electors, or at least the principal part of them were aware of it, and took part in the election to fill it, or had an opportunity to do so.

§ 263a. The office of councilman in a city is not a lucrative office, within the meaning of a constitutional provision which provides that no person shall hold more than one lucrative office at the same time. And see 25 La. Annual, 138.

§ 263b. An officer commissioned to hold office for the term of four years from March 2, 1845, was held to have been in office on that day. The word "from" includes the day of date. [Batesville Institute vs. Kauffman, 18 Wall., 120.]

CHAPTER VI.

PRACTICE AND EVIDENCE IN CONTESTED ELECTION CASES.

§ 264. At common law the proper remedy against a person claiming to exercise an office, and who was believed to be not entitled thereto, was by the writ of quo warranto, which was issued upon proper application for the purpose of inquiring into the authority of such person, and ousting him from such

office, in case no authority should be shown. In modern practice an information in the nature of a quo warranto, is resorted to, in the absence of any statutory proceeding. [Walker's American Law, p.566. Blackstone's Comm., Vol. 3, p. 263.] And in fact where there are special proceedings authorized by statute, they partake of the nature and retain most of the substance of the common law proceeding by quo warranto.

§ 265. According to the common law of England the information was filed in the Court of King's Bench, by the Attorney General. In this country it should be filed by a law officer of the government, and presented to a Court having the necessary common law jurisdiction. The proceeding was originally of a quasi criminal character, being intended to secure the punishment of the usurper by a fine as well as to oust him, or seize the office or franchise

for the crown. But it hath," says Blackstone, "long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor; the fine being nominal only."

§ 266. In an information setting forth that the respondent has usurped an office which is claimed by other persons, their claims should be set forth, and the judgment may order the ouster of the usurper, as well as the admission of the rightful claimant. [Gaud vs. The State, 10 Ohio State, 237.] Leave of Court must be had to file an information of this character, under the common law, though the Attorney General of England it seems might file it at his will. [4 Blackstone, 311.]

§ 267. On the trial of a contested election before a board or legislative body, the members returned as elected are not competent to vote upon the ques

tion of the validity of their own election. (Commonwealth vs. McKloskey, 2 Rawle, 369. Brightley's Election Cases, 196.) This rule grows out of the doctrine that no man should have a voice in deciding his own case. At common law it is held that even an act of parliament cannot require anything so repugnant to natural justice, as that the same person may be a party and a judge. (Davy vs. Savadge, Hobart, 87, 12 Mad., 687.) Out of this principle grows also the parliamentary rule which forbids a member of a parliamentary body to vote upon any question in which he is directly interested. The Court in Commonwealth vs. McKloskey, supra, does not put it too strongly when it says "for a man to constitute himself a judge in his own cause is indelicate and indecent." To the same effect are the following authorities : Rice vs. Foster, 4 Harrington, 485. Carson's Case, 2 Lloyd's Debates, 23. Stockton's Case, U. S. Senate, Cong'l Globe, 1865-6-page 1635. Cushing's Election Cases, 97.

268. It is true that the Senate of the United States permitted Hon. B. F. Wade, Senator from Ohio, to sit as one of the judges for the trial of Andrew Johnson, President of the United States, upon articles of impeachment, and that he voted upon the same, notwithstanding the fact that being President pro tempore of the Senate, and ex-officio Vice President of the United States, he would have become President, had the President been convicted. (2, Johnson's trial, 486-7, 496, 3 ibid, 360.) The question of Mr. Wade's right to be sworn as a member of the Court of impeachment was raised by Senator Hendricks of Indiana, and was debated at some