Collopy v. Cloherty

• Decision Date: 20 February 1894
• Citation: 25 S.W. 497,95 Ky. 330
• Parties: COLLOPY v. CLOHERTY.
• Court: Kentucky Court of Appeals

25 S.W. 497

95 Ky. 330

COLLOPY v. CLOHERTY.

Court of Appeals of Kentucky.

February 20, 1894

Appeal from circuit court, Campbell county.

"To be officially reported."

Action by William Collopy against John Cloherty. Judgment for defendant. Plaintiff appeals. Reversed.

Root &amp Root, for appellant.

Chas J. Helm, for appellee.

LEWIS J.

Appellant brought this action to recover possession of the office of "foreman of street repairs and overseer of the poor" in the city of Newport, alleged to have been unsurped, and then illegally held, by appellee; and this is an appeal from a judgment sustaining a general demurrer to the petition and dismissing the action.

1. It was not, as argued by counsel, necessary to set forth the entire ordinance of the board of councilmen creating the office in question, but to state, substantially, only so much thereof as is necessary to show, prima facie, his title and right to recover. It is alleged that in 1888 an ordinance was duly passed by said board, providing for the election of a person to act as foreman of street repairs and overseer of the poor in that city, and also sufficiently stated that the term of the office was to be for one year, beginning 1st day of each February; that one Roll was in January, 1891, elected for one term, but, before expiration thereof, tendered his resignation, which was accepted, and appellee was thereupon appointed by the board of councilmen to hold said office thus made vacant, during residue of the term ending February 1, 1892; that in January the board of councilmen duly elected appellant to said office for the term beginning February 1 1892, and ending February 1, 1893; whereupon, he took the oath of office, and executed the bond required by law; but that although he thereafter, and in due time, demanded of appellee possession of the office, he refused, and still illegally holds it. It seems to us there is enough stated in that connection to constitute a cause of action, if the petition be not defective in any other respect.

2. It is contended that the board of councilmen had no authority to create the office in question because it is not mentioned or provided for in the following section of the charter "The legislative, executive and ministerial power of said city shall be vested in a mayor and a board of councilmen consisting of two members from each ward, a city clerk, treasurer, attorney, engineer, marshal, physician,...