FOSTER, CO. Atty., etc., v. STATE JOHNSTON, Atty. Gen.

112 U.S. 201 (5 S.Ct. 8, 28 L.Ed. 629)

FOSTER, CO. Atty., etc., v. STATE ex rel JOHNSTON, Atty. Gen.

Decided: October 27, 1884

Syllabus intentionally omitted

W. Hallett Phillips, for motion.

Argument of Counsel from pages 202-203 intentionally omitted

A. L. Williams, against motion.

WAITE, C. J.

The showing under this rule presents the following facts: The supreme court of Kansas rendered a judgment on the first of April, 1884, removing Foster, the plaintiff in error, from the office of county attorney of Saline county. A statute of the state makes it the duty of the judge of the district court of a county to fill the office of county attorney when a vacancy exists. A writ of error from this court for the reversal of the judgment of the supreme court was duly allowed in Washington on the fifth of April, and a supersedeas bond approved, and a citation signed. Notice of these facts was telegraphed on the same day, by the counsel of Foster in Washington, to his counsel in Kansas. On the 7th, the counsel in Kansas called on the judge of the district court of the county and exhibited to him the telegram, and notified him of what had been done in Washington. After this, and a little before 12 o'clock of the night of the 7th, the judge appointed Joseph Moore to the office in place of Foster. The bond of Moore, which had been executed on the 7th, and then approved by the clerk of the county, was accepted by the county commissioners on the eighth of April, and Moore thereupon assumed to discharge the duties of his office. Before this appointment was made, an authenticated copy of the record of the supreme court removing Foster from the office was presented to the judge. On the same day, the 8th, the writ of error and supersedeas bond arrived from Washington and were duly lodged in the office of the clerk of the supreme court of the state. At the next term of the district court, which began on the twelfth of May, Moore appeared and acted as county attorney, the judge ruling that he, and not Foster, was properly in office. On the twenty-sixth of May a rule was granted by one of the justices of this court requiring Moore to appear here on the second day of the present term, and show cause why he should not be attached for contempt in violating the supersedeas. There is no dispute about the facts, and the simple question is whether they make out a case of contempt on the part of Moore. We have no hesitation in saying they do not. It was decided in Board Com'rs v. Gorman, 19 Wall. 661, which was followed in Kitchen v. Randolph, 93 U. S. 86, that a writ of error operates as a supersedeas only from the time of the lodging of the writ in the office of the clerk where the record to be re-examined remains; and in Doyle v. Wisconsin, 94 U. S. 50, that the provision of section 1007 of the Revised Statutes, to the effect that in cases where a writ of error may be a supersedeas executions shall not issue until the expiration of 10 days, does not apply io judgments in the highest court of a state. We see no reason to modify these rulings. It follows that the supersedeas was not in force when Moore was appointed to and accepted the office.

The judgment operated of itself to remove Foster, and leave his office vacant. It needed no execution to carry it into effect. The statute gave the judge of the district court authority to fill the vacancy thus created. The judge was officially notified of the vacancy on the 7th, when the authenticated copy of the record of the supreme court was presented to him. The operation of that judgment was not stayed by the supersedeas until the 8th, that being the date of the lodging of the writ of error in the clerk's office. It follows that the office was, in fact, vacant when Moore accepted his appointment, gave his bond, and took the requisite oath. He was thus in office before the supersedeas became operative. What effect the supersedeas had when it was afterwards obtained, on the previous appointment, we need not now consider. This is not an appropriate form of proceeding to determine whether Foster or Moore is now logally in office.

The rule is discharged.

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