¶1The opinion of the court was delivered by
¶2On the 25th day of April, 1889, Patsie Dean was elected and afterward duly qualified as clerk of School District No. 21, of the county of Ellis, in this state. He immediately entered upon the discharge of the duties of the office, and has ever since occupied, and was at the times hereinafter stated occupying, the office by virtue of the election. The annual meeting of school district No. 21, for 1891, was held on the 12th day of August, and at that meeting Bernard Martin claims that he was elected clerk of the school board of the district. On the 12th day of August,' 1891, he qualified as such clerk, and on the same day demanded in person of Patsie Dean the records, books and papers belonging to the office. Dean refused to deliver them to him. He then filed a complaint before a justice of the peace of Ellis county, alleging that Dean, “ unlawfully, willfully and wrongfully refused to deliver to him the records and books of the clerk of said school district, or any part thereof.” A motion was filed before the justice to quash the complaint, which was overruled. The defendant, upon trial, was found guilty and sentenced to pay a fine of $10 and costs, and to be committed until the fine and costs were paid. He appealed to the district court of Ellis county, and in that court defended upon the ground that there was no legal election held for the office of clerk of the school district on August 12, 1891; that the complainant, Bernard Martin, had never been elected, and that he never had entered upon the discharge of the duties of the office, or attended any meetings of the board of the school district. The trial court dismissed the action and discharged the defendant. The state excepted, and brings the case here.
¶3*562The defense was presented somewhat irregularly by way of a plea in abatement. It seems to be conceded that the defendant, at the time of the trial, was still in the possession of his office, claiming to be the clerk of the school district, and also claiming that his successor had not been elected or qualified. The state admitted that no contest, action of quo warranto or other proceeding had been instituted to determine the defendant’s right to the office. Waiving the question whether the case is properly here for decision upon its merits, clearly the judgment of the district court must be sustained. A civil action in the nature of a quo warranto would have been a proper remedy in a case of this kind; but a criminal action is not the proper way to settle the title or possession of an office. (Hunt v. Cemetery Association, 27 Kas. 734.)
¶4A person having at some prior time been legally elected the clerk of a school district, still in the possession of the office, claiming the rightful possession thereof, and also claiming to be legally entitled to hold the same, cannot be convicted under § 52, chapter 92, General Statutes of 1889, relating to schools, (Gen. Stat. of 1889, ¶ 5613,) for neglecting or refusing to deliver the records, books and papers belonging to the office to one not in possession of the office, but claiming the same under a subsequent election.
¶5The judgment of the district court will be affirmed.