7 Atl. 381; Hunter v. Chandler, 45 Mo. 455; King v. Warlow, 2 M. & S. 75.

There remains the question, and in fact the only substantial question in the case, whether there was power in the court to render an effectual judgment ousting the defendant from the office for the remainder of the term to which he had been chosen. By the terms of the judgment he was not only ousted for the moment, but for the entire term. While the judgment expressly deprives the defendant of any right to the office forfeited for his misconduct for the balance of the term, it is not certain that it is any more effective than would have been a general judgment of ouster. If the unlawful acts pleaded and proven operated to forfeit the office for the term to which Rose was elected, a judgment in general terms declaring a forfeiture would probably take from him all that he had forfeited. What was involved in the proceeding? and of what was the defendant deprived by the ouster? It was the office of mayor, with its rights and privileges. The office is a trust, conferred by public authority, for a public purpose, and for a definite time. Justice Swayne said: "An office is a public station or employment, conferred by the appointment of the government. The term embraces the ideas of tenure, duration, emoluments, and duties." United States v. Hartwell, 6 Wall. (U. S.) 385, 393, 18 L. Ed. 830. In Re Attorneys, etc., 20 Johns. (N. Y.) 492, an "office" was defined to be "an employment on behalf of the government, not merely transient, occasional, or incidental." In defining "public office" the Court of Appeals of New York said: "It means a right to exercise generally, and in all proper cases, the functions of a public trust or employment. * * and to hold the place and perform the duties for the term and by the tenure prescribed by law." In re Hathaway, 71 N. Y. 238. The office of mayor, which was conferred on defendant at the general city election of 1905, was not a transient or occasional trust. The office, with its rights and privileges, was given to him for a fixed time. It was a two-year trust; an entire thing. It has been said that "in legal idea, an office is an entity, and may exist in fact, though it be without an incumbent." People v. Stratton, 28 Cal. 382. The same court later said that "In legal contemplation each term of office is an entity, separate and distinct from all other terms of the same office." Thurston v. Clark, 107 Cal. 285, 40 Pac. 435. See, also, Wardlaw v. Mayor, etc. (Super. Ct.) 19 N. Y. Supp. 6, 7; State v. Welsh, 109 Iowa, 19, 79 N. W. 369. The right to exercise the functions of the office of mayor and to enjoy its privileges for the two-year term was an entity conferred on the defendant, and it was that which was taken from him in the quo warranto proceeding. The resignation or the removal of an officer during his term and the election

or appointment of a successor does not divide the term nor create a new and distinct one. In such a case the successor is filling out his predecessor's term; and when the defendant re-entered the office and undertook to exercise its duties he was simply serving a portion of the very term which the court had decided that he was unfit to hold. Since, under the law, he forfeited and was ousted from the right to occupy the office for the remainder of the term no subsequent election or appointment could restore to him that which he was adjudged to have forfeited and lost. The electors of the city are as much bound by the law and the judgment rendered in pursuance of the law as their representatives and officers, and the special election did not warrant the defendant in ignoring or violating the judgment rendered under the law. In State v. Welsh, supra, the Supreme Court of Iowa went so far as to hold that an officer might be removed during the term for which he had been re-elected for official misconduct or neglect of duty during his previous term. After remarking that the object of the proceeding of removal from office is to rid the community of a corrupt, incapable or unworthy official, it was said: "The commission of any of the prohibited acts the day before quite as particularily stamps him as an improper person to be entrusted with the performance of the duties of the particular office as though done the day after. The fact of the guilt with respect to that office warrants the conclusion that he may no longer, with safety, be trusted in discharging his duties." It is not necessary to go to that extent in this case, but certainly the misconduct of which the defendant was found guilty stamps him as one not entitled to be entrusted with the duties of the particular office forfeited during the remainder of the term. State v. Jersey City, 25 N. J. Law, 536, appears to hold a contrary view, but a case more nearly in point, and which is in accord with our judgment, is State ex rel. v. Dart, 57 Minn. 261, 59 N. W. 190. There a county treasurer was removed in a proper proceeding for the misappropriation of public funds. Afterward the board of county commissioners, which had authority to fill the vacancy, elected him to fill out the term. The question arose whether there was power in the board to reinvest him with the office in that manner. In deciding that there was not, the Supreme Court of Minnesota said: "The removal proceedings cannot be nullified or reversed in that manner. Such removal proceedings are not merely for the purpose of ousting the person holding the office; they include a charge that he has forfeited his qualification for the office for the remainder of the term. They are brought to declare a forfeiture of a civil right, his eligibility, his qualification to hold that office for the rest of the term. The proceeding is not brought for his

re

moval from a day or a week or a month of his term, but from the whole of the remainder of his term. Nothing less is involved in the proceedings. Whether the voters at the polls could condone the offense by which he forfeited his office is not necessary here to decide. We are of the opinion that the county commissioners could not do so."

At the argument the question was mooted whether a county attorney, who had been removed from office, could be reappointed during the term. The statute authorizing removal would serve little purpose if the district judge would appoint the unfaithful officer for the term forfeited and thus again invest him with the office and the opportunity to continue the violations of duty and of the law. Suppose a county clerk, who was engaged in peculation with the connivance of the board of county commissioners, was removed from office; the board which has the power to fill the vacancy might be willing to give the defaulter a new lease of power to continue his frauds against the public until the end of the term, but to allow it to be done would be trifling with justice. No such purpose can reasonably be imputed to the Legislature Counsel for the defendant was inclined to concede that an officer removed for dereliction of duty could not be reappointed to fill the vacancy, but contended that a different rule obtains where provision is made for filling the vacancy by election. No room is seen for a distinction between an appointment and an election. The protection of the public is involved in the proceeding and judgment. Nothing in the statute suggests that electors, even, can condone the misfeasance, revive the forfeited rights, or limit the effect or enforcement of a judgment of ouster. It is said that this proceeding involves the title to an office, which can only be questioned in a direct proceeding, and that a contempt proceeding cannot be transformed into a quo warranto action. The determination of the title to the office is not directly drawn in question in this proceeding. The real inquiry is, has the defendant violated the judgment rendered? That involves the scope and effect of the judgment and whether the defendant has intruded into the office and is doing that which the judgment forbids. The right to the office is only incidental to the main question, whether he is acting in disobedience and contempt of the judgment of the court. It is conceivable that a person removed from the office might, for some purposes, be regarded as a de facto officer and yet be in contempt of a court which prohibited him from occupying the office. An ousted officer might again and again in some illegal way gain possession of the office, and such recognition in it as would give validity to his acts, but it would hardly be contended that the only way by which the state could meet such contumacy and

enforce the court's judgment would be to bring repeated quo warranto proceedings.

The contention that to deprive the defendant of the right to hold the office for the remainder of the term is to take away a right from him without due process of law, is not well founded. He is only made to suffer the penalty imposed for misconduct in office and violation of law. The office is created by statute. The grounds of forfeiture are prescribed by statute, and the statute provides the method by which the forfeiture is declared. He has no vested right to the office, and especially none which may not be forfeited and lost by misfeasance. Having violated the statute, he must suffer the penalty which the statute prescribes. Having disobeyed and violated the judgment lawfully rendered and still in force he is in contempt of this court, and will therefore be adjudged to pay a fine of $1,000, and the costs of this proceeding, and if the fine and costs are not paid within 20 days he shall be committed to the jail of Shawnee county until they are paid. All the Justices concurring.

(74 Kan. 301)

BROWN v. AKESON et al. (Supreme Court of Kansas. July 6, 1906.) 1. JUDGMENT-ACTION THEREON.

No action can be maintained upon a judgment which has been permitted to remain dormant for more than one year. Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630, followed.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1585, 1722.] 2. CONTRActs-Consideration.

The moral obligation of the debtor to pay such a judgment is a sufficient consideration to support a new promise on his part to do so. 3. SAME.

A chattel mortgage pledging personal property to the payment of an indebtedness which it declares to be owing from the mortgagor to the mortgagee is an enforceable contract, notwithstanding that it describes such indebtedness as consisting of a judgment which in fact has lost its vitality by remaining dormant for more than one year.

4. CHATTEL MORTGAGES-DEFICIENCY-ACTION TO RECOVER.

A promise of the mortgagor made in such an instrument that if the property fails to satisfy the debt he will pay the deficiency is such an assumption of a personal obligation on his part as will support an action against him for the amount of such deficiency.

5. SAME EVIDENCE.

In such an action, the judgment may looked to for the purpose of ascertaining the amount of the indebtedness so assumed. (Syllabus by the Court.)

Error from District Court, McPherson County; W. H. Lewis, Judge.

Action by Archy Brown against A. P. Akeson and Hilda C. Akeson. Judgment for Redefendants, and plaintiff brings error. versed and remanded.

Frank O. Johnson, for plaintiff in error. John D. Milliken, and Grattan & Grattan, for defendants in error.

MASON, J. On January 5, 1889, Archy Brown recovered against A. P. Akeson and Hilda C. Akeson a money judgment, the last execution on which was issued May 18, 1892. On May 25, 1898, the Akesons executed to Brown a chattel mortgage the material portions of which read as follows: "Know all men by these presents, that Hilda C. Akeson, A. P. Akeson, and wife, of McPherson county, state of Kansas, of the first part, is indebted to Archy Brown, of the second part, in the sum of four hundred and 30/100 dollars, to be paid as follows, one certain judgment, dated, Jan. 5, 1889, in favor of said Archy Brown v. said first parties said judgment to be and remain in full force and effect with 12% interest from date of judgment: Now, therefore, in consideration of such indebtedness, and to secure the payment of the same, as aforesaid, said party of the first part does hereby sell, assign, transfer and set over to said party of the second part, the property described in the following schedule, viz.:

And

if from any cause, said property shall fail to satisfy said debt, interest and costs aforesaid, said parties of the first part, hereby agree to pay the deficiency." On May 15, 1903, Brown sued the Akesons, setting out the facts above stated, and adding, with other averments which do not require mention, that nothing had been realized from the mortgage, and that the defendants were still indebted to the plaintiff. An answer and reply were filed. When the case was called for trial the plaintiff made a statement of his case substantially in accordance with his pleadings. The defendant moved for judgment. The motion was sustained, and the plaintiff prosecutes error.

Two questions are presented: (1) Did the fact that no execution had been issued for five years, and that an additional year then passed without revivor proceedings being had, preclude the plaintiff from maintaining an action upon the judgment? and (2) if so, can he maintain an action upon the promise contained in the mortgage that the mortgagors would pay any deficiency if the property should fail to satisfy the indebtedness therein referred to? The first question must be answered in the affirmative, unless Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630, and decisions there followed, are to be overruled. The plaintiff in error recognizes this, but invites a reconsideration of the doctrine of that case, and an acceptance of the views expressed in the dissenting opinion filed therein. The matter is one of statutory interpretation. If practical evils flow from the construction heretofore adopted they can be corrected by legislation. It is not desirable to treat the subject as still open. The prior decisions are approved. In considering the second question it is to be noted that at the time the mortgage

was made the judgment had been dormant for more than one year. If, while the judgment had been in full force the defend ants had given a mortgage to secure it, and the judgment had afterwards been permitted to die, it might well be argued that the mortgage, being only an incident to the judgment, had died with it. But in fact the mortgage was executed to secure the payment of a judgment which was already dead; that is one which was absolutely unenforceable by any method except through the consent of the defendant. The giv ing of the mortgage did not revive the judgment. That result could only be accomplished by an order of the court made in conformity to the requirements of the statute. But the mortgage itself was a valid contract. It was open to but one objection, namely, that it was given to secure the payment of a sum of money by the mortgagors for which they could not otherwise be held; that is to say it was a contract the only considération of which was founded upon an obligation not legally enforceable. But although the judgment had completely lost its vitality it had never been paid, and the defendants owed a moral duty to the plaintiff to pay him its amount. This moral duty was based upon an antecedent legal obligation which had been extinguished but never performed, and therefore was a sufficient consideration to support a new promise. 6 A. & E. Encycl. of L. (2d Ed.) 680; 9 Cyc. 362, paragraph "h." The agreement incorporated in the mortgage that if the property failed to satisfy the debt the mortgagors would pay the deficiency was an express assumption of personal liability. It was supported by a valid consideration, and was capable of enforcement by action. Henley v. Wheatley, 68 Kan. 271, 74 Pac. 1125.

It is true that the plaintiff claimed that the judgment was still in force and that he attempted to use it as the basis of his action, but his petition stated all the facts necessary to entitle him to recover upon the terms of the chattel mortgage. His misconception of the status of the judgment did not affect his right to rely upon the subsequent promise to pay. The allegations regarding the judgment are not even surplusage. They are proper by way of inducement, as leading up to the making of the mortgage. Moreover the judgment, although lifeless and unenforceable, is not without a function to perform. It may be looked to for the purpose of ascertaining the precise amount of indebtedness which the mortgagors assumed and agreed to pay.

The judgment of the district court is reversed, and the cause remanded with directions to overrule the motion for judgment for the defendants on the pleadings. All the Justices concurring.

(74 Kan. 314)

ATCHISON, T. & S. F. RY. CO. v.
FAJARDO et al.

(Supreme Court of Kansas. July 6, 1906.)

1. DEATH-RIGHT OF ACTION · ALIEN PARENTS.

- NONRESIDENT

Nonresident alien parents, next of kin of a minor son whose death was wrongfully caused by the negligence of another, may maintain an action to recover for his death.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Death, § 37.]

2. SAME-DAMAGES EVIDENCE.

In such a case proof as to the value of actual services rendered, or which might have been rendered by the minor son is not indispensable to a recovery, but there must be evidence to justify a reasonable expectation of pecuniary benefit to his parents in the continuance of his life. In the present case it is held that the testimony of the age, intelligence, and habits of the minor, his relationship and disposition toward his parents, and of their situation, is deemed to be sufficient to justify a reasonable expectation of future benefits, and to sustain the award which the jury made.

[Ed. Note. For cases in point, see vol. 15, Cent. Dig. Death, §§ 20, 96.]

(Syllabus by the Court.)

Error from District Court, Shawnee County; A. W. Dana, Judge.

Action by Mateo Fajardo and Emilia Davila Fajardo against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

W. R. Smith, O. J. Wood, and Alfred A. Scott, for plaintiff in error. B. J. Horton, R. S. Horton, and Bishop & Mitchell, for defendants in error.

JOHNSTON, C. J. This was an action for the negligent killing of Carlos M. Fajardo, brought by his father and mother against the Atchison, Topeka & Santa Fé Railway Company.

The Fajardos were native born inhabitants of Porto Rico, and the parents still reside there. Carlos, who was over 16 years of age when he died, had been sent to school in New York for about two years, after which he was placed in the University of Kansas, where he was being fitted for professional life in the law department of that institution. In June, 1903, he started on a trip to Porto Rico to spend the vacation with his parents, but was killed in a head-on collision of the railroad within the limits of Kansas. The father and mother, who were next of kin, brought this action to recover the value of his life, and the jury awarded them $4,000.

It is argued that the Fajardos cannot maintain the action, because they are aliens, or at least are not entitled to the protection of the statutes enacted for the benefit of the people of the state. It is difficult to think of nativeborn inhabitants and residents of Porto Rico as aliens. Living as they do in territory belonging to the United States, under laws enacted and regulations prescribed by the United States, and owing no allegiance to any other nation than our own, it is not easy

to regard them as aliens, who should be excluded from the courts and the remedies provided in our statutes. Some question has arisen as to whether the revenue provisions of the federal Constitution apply to the territories recently acquired from Spain, and as to their exact status in our government, but it is unnecessary in this case to determine whether Porto Ricoans are within the scope and operation of all our laws, fundamental and statutory, or whether legislation by Congress, extending citizenship to them and fixing their status in our government, is necessary. If we assume that they are not in fact citizens of the United States, the plaintiffs below were nevertheless entitled to maintain the action. The statute which permits a recovery in behalf of next of kin for wrongful death does not make it conditional on citizenship of the United States. It provides: "When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained the action had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased." Code Civ. Proc. § 422. As will be observed, the only conditions prescribed are that the act or omission which caused the death shall be such that if the party killed had lived he might have maintained an action against the wrongdoer for the injury resulting from the same act or omission; that the personal representatives of the deceased must begin the action within two years, and that the damages accruing to the next of kin are limited to $10,000. This section, giving the right of action, is general in its terms, and appears to apply to all widows and children, or next of kin of the deceased, regardless of residence or nationality. A number of cases brought under this section, where the beneficiaries were aliens, have passed through this court without contest, on the theory that this remedy, like all common-law remedies, was available to residents and nonresidents, citizens and aliens, alike. While statutes enacted by the Legislature have no operation outside the state they do apply to all who come within the state, and to all rights, arising within its limits. In jurisdictions where common-law principles obtain, and where no exceptions have been made, the theory is that the statute law is allpervading, operating alike upon all who are or come within the state. It recognizes every right arising within its jurisdiction. Generally speaking, all who are or come within the bounds of the state must yield obedience to the law, and all may appeal to it for protection and avail themselves of its remedies. It is true that an action for wrongful death could not be maintained under the common

law until what is known as "Lord Campbell's Act," and state statutes similar to it, were enacted. The passage of these acts, however, removed the obstacle to a recovery for negligent killing, and the right of action is now as available as any of the common-law remedies. The statute giving the right of action is remedial in character, and should receive a liberal interpretation with a view of extending the remedy to those who have suffered damages from the death of a relative which was caused by the wrongdoing of another. It is said that the remedy is not available to aliens because they are not specifically mentioned in the statute. But our Legislature has never proceeded upon the theory that it was necessary to enumerate the classes to whom the law should apply, nor that the remedies afforded should not be available to aliens unless expressly conferred upon them. A great many statutory remedies are given in the Kansas statutes, but it has never been supposed that they were to be withheld from nonresident aliens, because not expressly enumerated in the statute. On the other hand, it has been the theory that in the absence of an express exception the remedies provided by statute are open to every one who appeals to our courts to the same extent as are the ordinary common-law remedies. The courts, in interpreting similar statutes, have held that nonresident aliens were entitled to avail themselves of the remedy given.

In Massachusetts it was held that a nonresident alien mother might recover for the wrongful death of her son. Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309. The same view was taken of the same statute in the United States Circuit Court in Vetaloro v. Perkins (C. C.) 101 Fed. 393.

In Iowa, where an Italian resident of that state was killed, it was held that his mother, who resided in Italy, might recover damages resulting from her son's death. In deciding the question, it was said: "Under the common-law theory laws are territorial in their operation, and, while a sovereign may legislate with reference to its subjects outside of territorial jurisdiction, general legislation is assumed to apply to all persons residing, all property situated, and all rights arising within its territorial jurisdiction, regardless of the status of the parties being citizens or aliens. As to the rights arising or recognized within the jurisdiction, a nonresident alien may maintain suits in the courts without any special statutory authority." Romano v. Capital City B. & P. Co., 125 Iowa, 591, 101 N. W. 437, 68 L. R. A. 132, 106 Am. St. Rep. 323.

In Illinois, in the case of Kellyville Coal Company v. Petraytis, 195 Ill. 215, 63 N. E. 94, SS Am. St. Rep. 191, a nonresident alien mother brought an action against a coal company for negligently causing the death of her son in a coal mine in that state. The Supreme Court sustained her right to maintain

the action, saying: "It may be said here that neither citizenship nor residence is requisite to entitle a person to sue in the courts of Illinois. That right is certainly not questioned when sought to be exercised here by citizens of other states, and we perceive no reason why it should be granted to citizens of other states of the Union but denied to per sons living in foreign countries."

The Supreme Court of Minnesota, in the case of Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N. W. 1057, 99 Am. St. Rep. 534, had before it the question whether a nonresident alien might bring an action under a statute authorizing the next of kin to bring an action for compensation for the death of a human being, due to the negligence of another. In construing the statute, and holding that the action could be maintained, it was remarked: "The object of the statute was to remedy the harshness of the common law, and in some degree compensate those dependent upon the person killed. It would indicate an unnatural and selfish motive to draw a distinction between the dependent relatives who reside in another state or foreign country and those residing in our own state, and unless such intention is manifest we are not at liberty to assume that the lawmakers were legislating upon any other basis."

A statute similar to our own was considered by the Appellate Court of Indiana, in the case of Cleveland, C., C. & St. L. R. Co. v. Osgood (Ind. App.) 73 N. E. 285, which was an action for wrongful death, and where the next of kin for whom the action was brought were aliens. It contained no exceptions because of alienage. The court treated the statute as remedial, one to be interpreted liberally, and, in upholding the right of an alien to its benefits, said: "The statute is broad and inclusive in terms. No exception is made where the beneficiaries named. are aliens. To deny the action because the widow, children and next of kin are nonresidents and aliens is to incorporate into it a restriction which it does not contain."

The Supreme Court of Arizona, in the re cent case of Bonthron v. Phoenix Light & Fuel Co. (Ariz.) 71 Pac. 941, 61 L. R. A. 563. held that residents of Canada might maintain an action under the statute for the negligent killing of their son in Arizona. After a general review of the authorities the court de termined that the weight of authority, both in this country and in England, was in favor of the theory that the remedy was equally open to aliens as well as citizens of this country. It was remarked: "We do not think that in order to entitle an alien to maintain this action specific authority therefor must be granted such alien by the Legislature. The act is broad and comprehensive, and by its terms includes any surviving husband, wife, child, or parent, irrespective of their residence or citizenship, and it includes aliens ir. the absence of any restrictive legislation. We know of no rule of law which prohibits