People ex rel. Martin v. McCullough

It appears that the canvassers declared Mr. McCullough to be elected to the office of justice of the peace, and also Mr. Kassner; that McCullough was an incumbent, and Kassner received the most votes, both ■ being voted for for the full term of four years, commencing January 1, 1872: and that Martin, running for the short term, received more votes than his opponent. While I agree with the counsel for the people that this was error on the part of the canvassers, all the facts as alleged being admitted by the demurrer, yet my opinion on.that point will be of no effect, for that question is not before me.

*132The defendant McCullough oan not claim an office until the time has arrived to assume its duties. This court can only give a judgment of ouster, and that can only be done when a usurpation of the office is proved. A mere claim to exercise an office at some future time, is not sufficient. The action is premature as against McCullough. If, on the first of January next, he does intrude into the office, the action may be " brought to try his title to it. A mere claim to have the right to enter upon the office, cannot be tried. A man cannot claim an office until he is entitled to enjoy it. This time will not arrive until January next.

Demurrer sustained.