The county attorney of Wyandotte county resigned. The law provides for the. appointment of his successor by the two judges of the district court. (The State, ex rel., v. Meek, ante, p. 576, 120 Pac. 555.) The judges after consultation failed to agree and the judge of the first division, acting upon the theory that the statute gave him such authority, named James M. Meek. In the case just cited that appointment was held to be unauthorized and ineffectual. When that case was begun the attorney-general also brought the present proceeding, asking a writ of mandamus to require the two judges to confer together and endeavor to agree in the matter. Each j udge answered, stating in effect that he had' at all times been willing to meet and confer with the other in an effort to reach an agreement. The judge of the first division added that he had undertaken to make an appointment hhnself under a belief that the law authorized him to do so, but that he had not refused further conference on the subject with his associate, and would continue in the effort to reach an agreement, if this court should hold their joint action to be necessary to an appointment. The case is submitted for judgment on the pleadings. Prom this statement it appears that’ in any view of the law there has been no refusal on the part of either defendant to perform his duty. If the judge of the first division had pleaded a refusal on his part to confer on the matter, justifying his course by the contention that the vacancy had been filled, an issue would have been formed under which the effect of the statute might have been determined in this proceeding. But as, notwith- ’ standing his personal view, he has not declined to take part in negotiations looking to an agreement, he has not omitted to perform any duty required of him. The occasion of the present proceeding as a means for deciding the question of law concerning which there was *585a difference of opinion has been' removed by its decision in the quo warranto case. For the reasons stated the writ is refused.