Davis v. Claus
| Decision Date | 07 March 1907 |
| Citation | 100 S.W. 263,125 Ky. 4 |
| Parties | DAVIS v. CLAUS. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Campbell County.
"To be officially reported."
Action by Richard B. Davis against Martin Claus. From a judgment dismissing plaintiff's petition, he appeals. Reversed and remanded.
Hodge & Wolff, for appellant.
Horace W. Root, for appellee.
This action involves the right to the office of market master of the city of Newport, Ky. It was instituted by the appellant who, in his petition, claims that he was duly and legally elected by the general council of Newport in joint session assembled and that he thereafter qualified as by law required, and demanded the office of the appellee, who was wrongfully holding the same, and who, upon such demand, refused to deliver possession to the appellant, or to allow him to exercise the duties of the office to which he had been elected. Appellee filed an answer in two paragraphs. The first traversed every material allegation of the petition. The second pleaded that the election of the appellant was void, because the joint session at which it was held had not been called by the mayor; nor had he authorized the same to be called. Appellant replied to this paragraph by stating that the present mayor of Newport had held that office since January 1, 1904, and for the purpose of holding the defendant in office he had refused at all times since to allow the general council to meet for the purpose of electing his successor; that appellee had been holding the office of market master during the last three years without any election, and without right; that by the charter the board of councilmen of the city of Newport consists of 12 members, and the board of aldermen of 5 members, the two boards composing the general council; that on the 14th day of March, 1906, two members of the board of councilmen and two aldermen joined in a written request to the mayor to call a joint session of the general council to elect a market master for the city, but that the mayor refused to do so, and these four members then induced Peter J. Krebs, the city clerk of Newport, to call such meeting; that the clerk issued notices to the 17 members of the general council to meet on the 16th day of March 1906, at the regular meeting place of the board in the council chambers of the city of Newport, and each of them was served with the notice; that on the 16th day of March, 1906, at 8 o'clock p. m., 10 members of the board of councilmen and 2 members of the board of aldermen, in pursuance of the notice, met at the council chambers at the appointed time, and, in the absence of the presidents of either of the boards, the clerk, Peter J. Krebs, called the meeting to order, and John J. Higgins, a member of the general council, was duly elected president pro tem., and took the chair; that a resolution was then offered reciting the vacancy in the office of market master, and that it was the sense of the general council that the vacancy be filled by an election then to be had, which resolution was duly passed, receiving the votes of the 12 members present; that thereupon the appellant (plaintiff) was placed in nomination for the office of market master, and received all of the votes of the 12 members present, and was declared to be elected market master, whereupon he took the oath of office and executed a bond as by law required, which was approved by the joint session; that thereafter the appellant (plaintiff) demanded of the appellee (defendant), who was wrongfully in possession of the office of market master, that he deliver the same to appellant, with all the books, standard weights and measures, and other paraphernalia of the office, as it was his duty to do, which demand was refused. A general demurrer to this reply was filed by the appellee and sustained by the court, and, appellant declining to plead further, his petition was dismissed, and from this judgment he has appealed.
The ordinance of the city of Newport creating the office of market master, and prescribing his term and manner of election provides, in part, as follows:
The ordinance regulating the meetings of the general council of Newport is as follows:
"Section 1. That the board of councilmen shall meet at the council chambers each alternate week, beginning Thursday, March 1st, 1900, and from April 1st to October 1st at eight o'clock p. m., and from October 1st to April 1st at half-past seven o'clock p. m.
Sec. 2. The board of aldermen shall meet at the council chambers each alternate week, beginning Thursday, February...
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