Salamanca Township v. Wilson/Opinion of the Court

In this case the judges holding the circuit court have certified a difference of opinion between them upon the hearing of a motion to set aside the service of summons on the plaintiff in error, being the defendant below. The return of service is in these words:

'Received the within writ, September the 12th, 1882. I served     the within summons on said township of Salamanca, Cherokee      county, state of Kansas, by delivering a true and certified      copy thereof to Joseph A. Jones, the last elected and      qualified treasurer of said Salamanca township, in the county      of Cherokee, state and district of Kansas; and I made      diligent search and inquiry for, but could not find, in the township of Salamanca, or county      of Cherokee, state and district of Kansas, the last elected      and qualified trustee or clerk of said within defendant,      township of Salamanca.

'All done this eighteenth day of September, A. B. 1882.

'B. F. SIMPSON,

'U.S. M., Dist. of Kansas.

'By J. H. SMITH, Deputy.'

The controlling question certified is as follows:

'(2) Whether service of said summons upon Joseph A. Jones,     the last elected and qualified treasurer of said township,      after said Jones had removed out of said township and across      the line into the adjoining township of Crawford, in said      county of Cherokee, was good and sufficient service of said      summons.'

It is not denied that the service was good if Jones was, in law, the treasurer of the township when served. By the constitution of Kansas, art. 9, § 4, township officers, except justices of the peace, hold their offices one year from the Monday next succeeding their election, and until their successors are qualified. Jones was therefore presumptively in office when served, unless his removal across the line into Crawford township of itself created a vacancy. Borton v. Buck, 8 Kan. 302; Rheinhart v. State, 14 Kan. 318; Hubbard v. Crawford, 19 Kan. 570.

There is nothing in the constitution or laws of Kansas which requires a township treasurer to be a resident of or voter in the township when elected or qualified; neither is there anything which vacates the office if the officer removes from the township during the term for which he was elected. Justices of the peace are township officers, and as to them it is expressly provided that they 'shall reside and hold their office in the township for which they shall have been elected.' Section 4, (5970,) Dass. Comp. Laws, (1879,) 978. As no similar provision is made in respect to any other township officer, the implication necessarily is that actual residence in the township is not required of them. Expressio unius est exclusio alterius. That residence, as a qualification for office, was in the minds of the framers of the constitution and of the legislature is apparent, for article 3, § 11, of the constitution, provides that all judicial officers 'shall reside in their respective townships, counties, and districts during their respective terms of office;' article 2, § 4, that 'no person shall be a member of the legislature who is not at the time of his election a qualified voter of and resident in the county or district for which he is elected;' and section 218 (1643) of the General Statutes, (Dass. Comp. Laws, 311,) that 'ceasing to be an inhabitant of the county for which he was elected or appointed' vacates the office of a county officer. Undoubtedly the removal of a township treasurer from a township may, under some circumstances, vacate his office and authorize the county commissioners to fill the place,-section 12, (1978,) Dass. Comp. Laws, 978;-but we think it does not necessarily vacate the office under all circumstances. In the present case the question is whether moving 'across the line' into an adjoining township of itself has that effect. In our opinion it does not, and consequently we answer the second question certified in the affirmative.

The motion to set aside the service was therefore properly overruled, and the judgment is affirmed.