Patterson v. Miller, &C.

Decision Date04 January 1859
Citation59 Ky. 493
CourtKentucky Court of Appeals
PartiesPatterson vs. Miller, &c.

APPEAL FROM RUSSELL CIRCUIT COURT.

JAMES HARLAN, for appellant.

A. J. JAMES, for appellees.

T. CRAVENS, on same side.

CHIEF JUSTICE SIMPSON DELIVERED THE OPINION OF THE COURT:

This action was brought by William F. Patterson against James P. Miller and William H. Haynes, to recover damages for an alleged illegal seizure and sale by them of his personal property. The plaintiff stated in his petition that the defendant, Miller, pretending to be the sheriff of Russell county, when in reality he was not the constitutional sheriff of that county, unlawfully and without authority took into his possession and sold a sorrel mare, the property of the plaintiff; and that the defendant, Haynes, purchased said mare at the aforesaid illegal sale, and converted her to his own use.

The defendant, Miller, averred in his answer that he was the sheriff of Russell county, duly elected and qualified, according to law; and as such seized the property in the petition mentioned, and made sale thereof, under and by virtue of two executions which issued from the office of the presiding judge of the Russell county court, and were placed in his hands for collection. And the defendant, Haynes, in his answer, admitted that he had purchased the property so sold, and insisted that he had a right to make the purchase, as the property was sold under execution by a person who was acting as sheriff of the county. The defendant, Miller, read as evidence upon the trial the certificate of his election as the sheriff of Russell county, and the records of the county court, by which it appeared that he had qualified and executed an official bond as sheriff, according to law.

The plaintiff then offered to prove that Miller was not a resident of Russell county at the time he was elected; but was then, and still was, a resident of Adair county. This testimony was rejected by the court on the ground that the certificate of the examining board was conclusive evidence, not only of Miller's election as sheriff, but also of his eligibility to the office. The court, however, decided that evidence might be offered to show that he had removed from the county since his election, although evidence that he was not a resident of the county at the time of his election was inadmissible.

The correctness of this decision of the court below is the only question presented for our consideration.

By the sixth article of the constitution it is provided that no person shall be eligible to the office of sheriff who has not resided one year next preceding the election in the county for which he is a candidate.

The 11th section of the 8th article of the constitution provides that all civil officers for the Commonwealth at large shall reside within the State, and all district, county, or town officers within their respective districts, counties, or towns.

From these constitutional provisions it is manifest that no person is eligible to the office of sheriff unless he is a resident of the county in which he is elected, and has been a resident thereof for one year next preceding the time of his election.

By the 5th section of the 91st chapter of the Revised Statutes it is provided, that "wherever a sheriff shall cease to be a resident of the county in which he shall be sheriff, or shall accept any office of trust or profit under the Federal government, or any incompatible office under the State government, or shall be convicted of treason or felony, the county court shall enter such fact on its records, and that his office is thereby vacated."

A sheriff is required by the constitution to reside in the county of which he is the sheriff; and under the foregoing provision of the Revised Statutes, by ceasing to be a resident thereof he forfeits his office, which may be declared vacant by the proper tribunal.

The 532 section of the Civil Code provides, "that whenever a person usurps an office or franchise to which he is not entitled by law, an action by ordinary proceedings may be instituted against him, either by the Commonwealth or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise."

And the 535 section declares, that a person who continues to exercise an office after having committed an act, or omitted to do an act, the commission or omission of which, by law, creates a forfeiture of his office, shall be subject to be proceeded against for an usurpation thereof.

Whether the acts of a sheriff who has forfeited his office, by a removal from the county, would be valid, and could be relied on for his own protection, until his office should, by a direct proceeding against him, be declared vacant, it is not necessary now to determine. Such acts would, however, according to well settled principles, be legal and valid, so far as third parties were concerned.

But where a person is constitutionally ineligible to an office, he will not be the lawful incumbent thereof, although he may be elected, obtain a certificate of his election from the examining board, take the oath of office, and execute the bond prescribed by law.

Are the acts of the officer in such a case legal to any extent; and if so, to...

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