Donelan, &C. v. Bird, &C.

• Decision Date: 10 May 1904
• Citation: 118 Ky. 178
• Court: Kentucky Court of Appeals
• Parties: Donelan &c. v. Bird &c.

118 Ky. 178

Donelan &c. v. Bird &c.

Court of Appeals of Kentucky.

May 10, 1904.

APPEAL FROM CAMPBELL CIRCUIT COURT.

FROM THE JUDGEMENT DONELAN AND OTHERS APPEAL. AFFIRMED.

A. T. ROOT FOR APPELLANTS.

OPINION OF THE COURT BY JUDGE SETTLE — AFFIRMING.

The record herein presents an agreed case in which the parties sought in the court below, and are now seeking in this court, a decision of the question as to when an election in Campbell county for filling the vacancy in the office of circuit judge for the Seventeenth Judicial District, caused by the death of the Honorable John P. Newman, should take place — whether in November, 1904, or November, 1905. The decision of the question submitted must turn upon the construction to be given section 152 of the Constitution, for section 1522, Kentucky Statutes 1903, bearing on the subject, is but a repetition of what we find in the Constitution. The section of the Constitution supra reads as follows: "Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment, as follows: If the unexpired term will end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment for the remainder of the term. If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, and if three months intervene before said succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment until said election, and then said vacancy shall be filled by election for the remainder of the term. If three months do not intervene before the happening of said vacancy and the next succeeding annual election at which city, town, county, district or State officers are to be elected, the office shall be filled by appointment until the second succeeding annual election at which city, town, county, district or State officers are to be elected; and then, if any part of the term remains unexpired, the office shall be filled by election until the regular time for the election of officers to fill said offices. Vacancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor. All other appointments shall be made as may be provided by law. No person shall ever be appointed a member of the General Assembly, but vacancies therein may be filled at a special election, in such manner as may be provided by law."

It appears that John P. Newman was duly elected judge of the Seventeenth Judicial District at the regular election held therein on the 3d day of November, 1903, for the full term of six years, beginning the first Monday in January, 1904; that he received his certificate of election from the State Board of Election Commissioners, and his commission from the Governor, after which he took the required constitutional and statutory oaths. But before the arrival of the time for undertaking the performance of the duties of his office, Newman died — his death having occurred ...