Howard v. Cornett

• Decision Date: 03 June 1886
• Citation: 1 S.W. 1
• Parties: HOWARD v. CORNETT.
• Court: Kentucky Court of Appeals

1 S.W. 1

HOWARD v. CORNETT.

Court of Appeals of Kentucky.

June 3, 1886

Appeal from circuit court, Harlan county.

Hargis & Eastin, for appellant, E.M. Howard. C.W. Lester, for appellee, A. B. Cornett.

PRYOR C.J.

This is a controversy between the appellant and the appellee over the office of county superintendent of common schools in the county of Harlan. The appellant was the school commissioner prior to the act of May 12, 1884, entitled "An act to amend and reform the common-school laws of the commonwealth." The appellee and appellant were candidates for the office of superintendent at the August election, 1884, and, although the appellee had a majority of the votes cast, was not permitted to qualify, and in fact was ineligible, because he had no certificate that he was qualified, from the circuit court judge, as required by the provisions of the fourth section of article 6 of the act of May 12, 1884. There was, then, no election for that office and, as we construe the act in question, the third section of article 6 provides who shall act as superintendent until one is regularly elected and qualified.

That section reads: "The commissioners now in office shall hold their offices until the county superintendent is elected and qualified under this act, and those elected under the provisions of this law shall hold their offices for two years, or until their successors are elected and qualified." By section 27 of the same act: "In case of the death, removal, resignation, or inability of the county superintendent elected, or in the event of a vacancy or for any other cause, the presiding judge of said county is hereby authorized to appoint a successor, to continue in office until the succeeding annual election, when one shall be elected."

There was no vacancy in the office by reason of the ineligibility of the appellee, because the act provided that the commissioner then acting should hold his office " until the county superintendent is elected and qualified." No superintendent had ever been elected and qualified, and this must happen before the power of appointment exists, under section 27 of the act of 1884.

The provision of the General Statutes on the subject of elections has no application to a case like this, as the question here must be controlled by the act of May 12, 1884. It results therefore, that the appellant is the superintendent, and will hold until one is elected and...