Atchison v. Lucas

• Decision Date: 17 December 1885
• Citation: 83 Ky. 451,7 Ky.L.Rptr. 424
• Parties: Atchison, County Judge, v. Lucas. Duncan v. Lucas.
• Court: Kentucky Court of Appeals

83 Ky. 451

7 Ky.L.Rptr. 424

Atchison, County Judge, v. Lucas.

Duncan v. Lucas.

Court of Appeals of Kentucky.

December 17, 1885

APPEALS FROM DAVIESS CIRCUIT COURT.

C. S WALKER FOR APPELLANT ATCHISON.

1. The approval of an official bond is a judicial and not a ministerial act or duty, and is not compellable by mandamus. (Civil Code, section 477; Goheen v. Myers, 18 B Mon., 426; Cate v. Ross, 2 Duv., 244; Ex parte Harris, 52 Ala. 87; 23 Am. Rep., 559; General Statutes, chapter 61, section 1, page 565; Ibid., chapter 48, section 4, page 503.)

2. In determining that, pending the contest as to the election appellee was not entitled to qualify as jailor appellant acted judicially, and his decision can not be reviewed or corrected by mandamus. (General Statutes, chapter 33, article 7, section 8, page 392; Gorham v. Luckett, 6 B Mon., 157-8; Commonwealth v. Jones, 10 Bush, 749; General Statutes, chapter 33, article 7; Wood on Mandamus, 20-1; County Court of Warren v. Daniel, 2 Bibb, 573; Louisville v. McKean, 18 B. Mon., 17; Goheen v. Myers, 18 B. Mon., 426.)

3. Pending the contest about the office before the county board, appellee had no right to qualify as jailer. (General Statutes, chapter 33, article 7, section 4, page 390; Ibid., section 6, page 391; Ibid., section 8, page 392; Wood on Mandamus, 29.)

4. Mandamus will not lie where there is a specific legal remedy other than by the writ for the enforcement of one's rights. (Wood on Mandamus, 18; Goheen v. Myers, 18 B. Mon., 426; Stevens v. Wyatt, 16 B. Mon., 548; Ex parte Harris, 52 Ala. 87; 23 Am. Rep., 560.)

5. When one who has a certificate of election is notoriously ineligible to the office under the Constitution, it is the duty of the county court to refuse to qualify such an one on application to qualify and there is nothing in Patterson v. Miller, 2 Met., 493, in conflict with this proposition. (Civil Code, section 484.)

6. But whether the county court has or not the power to inquire into the eligibility of an applicant having a certificate of election, the circuit court clearly has no power to compel by mandamus the county court to qualify such an one, except as he has a constitutional right to the office. (Justices of Jefferson Co. v. Clark, 1 Mon., 82; Justices of Spencer Co. v. Harcourt, 4 B. Mon., 499; Lowe v. Phelps, 14 Bush, 647.)

7. In Kentucky a woman is not eligible to a constitutional office. (Constitution, article 2, section 8; Ibid., article 6, sections 1 and 2; 14th Amendment to Constitution of the United States; Amy v. Smith, 1 Litt., 332-3; Burkett v. McCarty, 10 Bush, 761; Webster's Dictionary, " Citizen; " Bouvier's Law Dictionary, " Citizen; " Minor v. Happersett, 21 Wall., 162; Robinson's Case, 131 Mass. 376; 41 Am. Rep., 239; General Statutes, chapter 67, section 1, page 610; The People ex rel Turman v. Clute, 50 N.Y. 451; 10 Am. Rep., 511; Bradwell v. The State, 16 Wall., 141.)

JAMES STUART, W. N. SWEENEY & SON AND WEIR, WEIR & WALKER ON SAME SIDE.

W. N. SWEENEY & SON FOR APPELLANT DUNCAN.

1. So soon as Duncan was appointed, the powers of Mrs. Lucas ceased. She, therefore, had no right to the fees allowed and certified in her favor, which accrued after she became functus officio. (Gen. Stat., pages 384, 386, 392, 567; 16 B. M., 546; Civil Code, section 488.)

2. That the appeal lies is clear. (Bruce v. Fox, 1 Dana, 447.)

JAMES STUART AND WEIR, WEIR & WALKER ON SAME SIDE.

GEO. W. WILLIAMS, HAYCRAFT & SLACK AND GEO. W. JOLLY FOR APPELLEE.

1. The title to an office can not be inquired into in an action for mandamus. (High on Ext. Legal Remedies, section 49; Moses on Mandamus, 49; People v. Olds, 3 Cal. 167; People v. Stevens. 5 Hill, 616; Ex parte Doughtry, 6 Iredell, 155.)

2. Appellee holding the certificate of election, the county judge was bound to allow her to qualify. He had no power to inquire as to her eligibility or qualifications. ( Patterson v. Miller, 2 Met., 497; Cate v. Ross, 2 Duv., 244.

3. Mandamus is the proper remedy where the act to be performed is ministerial in its character, or if judicial, where the object is to compel the inferior tribunal to entertain and decide the matter. (Clark v. McKenzie, 7 Bush, 523; Arberry v. Beavers, 6 Texas, 457; High on Ext. Legal Remedies, sections 151 and 152.)

4. Votes cast for a candidate who is ineligible are not void. (Commonwealth v. Cluly, 56 Pa. St., 270; Smith v. Brown, 2 Bartlett, 395; McCrary on Elections, sections 233, 234; Cochrane v. Jones, 14 Am. Law Reg., 235; In matter of Corliss, 16 Am. Law Reg., 15; Leeman v. Hinton, 1 Duv., 37; Gen. Stat., chapter 33, article 7, section 8.)

5. It was the intention of the law-makers that, pending a contest, the person holding the certificate of election should qualify and exercise the functions of the office. This rule of law is universal. (McCrary on Elections, section 204 and section 221, and authority cited.)

6. The right to hold office " belongs equally to all persons whomsoever not excluded by the Constitution." ( Gibbons v. Ogden, 9 Wheaton, 188; Magna Charta; Const. of Ky., article 6, section 2; Bill of Rights, section 4; Cooley's Const. Limit. (5th ed.), pages 36-7; Hamilton v. St. Louis County Court, 15 Mo. 13; Barker v. The People, 3 Cowen, 686.)

W. P. D. BUSH AND R. W. SLACK FOR APPELLEE IN DUNCAN V. LUCAS.

Duncan was not appointed and qualified as provided by law, and, therefore, his appointment and qualification did not divest Mrs. Lucas of the right conferred by her appointment to " act for the occasion." It is, therefore, clear that Mrs. Lucas is entitled to the allowance made under and by virtue of her appointment. (Gen. Stat., chapter 61, article 1, sections 8 and 9.)

STATEMENT OF FACTS IN DUNCAN V. LUCAS.

On the 14th day of July, 1884, there being a vacancy in the office of jailer of Daviess county, caused by the death of the last jailer, the widow and a son of the deceased jailer were appointed by the county judge as a " committee," to take charge of the jail and diet the prisoners. On the 4th day of August following an election was held to fill the vacancy in the office, and M. C. Lucas, the widow of the deceased jailer, being a candidate, and receiving the highest number of votes, received the certificate of election. Appellant Duncan, the opposing candidate, contested the election of Mrs. Lucas, the appellee, and on the 19th of September, 1884, the contesting board adjudged that Mrs. Lucas was ineligible. Thereupon the county court entered an order " " discharging" appellee and her son as a " committee," declared the office vacant, and appointed Duncan to fill the vacancy. In the meantime, however, the circuit court had awarded a mandamus against the county judge, requiring him to permit Mrs. Lucas to qualify, but the execution of the writ had been superseded. Duncan having taken the oath and executed bond, which was approved, demanded of appellee the possession of the jail and prisoners, which was refused. November 1, 1884, appellee, who was still acting as jailer, presented her claim to the circuit court for dieting prisoners, etc., from August 21 to October 21, 1884. The claim being allowed, appellant filed his petition asking the court to set aside the order of allowance, and to certify the claim in his favor, setting up his title to the office by virtue of his appointment. This appeal is prosecuted by Duncan from an order of the court refusing to set aside the order of allowance to appellee.

The facts in the case of Atchison, County Judge, v. Lucas are stated in the opinion.

OPINION

PRYOR JUDGE:

The appellee, Mrs. M. C. Lucas, filed her petition in the Daviess Circuit Court, asking a mandamus against the appellant, who was the county judge of Daviess county, compelling him to permit her to qualify as jailer of that county. It is alleged in her petition that she was elected to that office at the August election, 1884, by the qualified voters of the county, receiving the highest number of votes cast; that by a comparison of the poll-books by those authorized by law to compare them, it was ascertained that she was elected, and a certificate of that fact is filed with and made part of her petition; that she appeared in the Daviess County Court, of which court the appellant Atchison was the presiding judge, his court being then in session, and producing to him her certificate of election, offered to qualify by taking the oath and executing a bond with good and sufficient sureties; that the defendant refused to permit her to qualify, to administer the oath, or accept her bond.

S. F. Duncan, the opposing candidate, who had been defeated by her at the polls, was, at the time the appellee offered to qualify, contesting her right to the office before the county board, on the ground that the appellee, being a female, was ineligible; and this was substantially the defense relied on by the county judge.

A demurrer was sustained to his answer, and failing to plead further, a peremptory mandamus was awarded, directing the appellant to permit the appellee to qualify as jailer.

This action of the circuit court was stayed by supersedeas, and the case is here on the appeal of the county judge as well as the appeal of the contestant, Duncan.

It is maintained by counsel for the appellee that the county judge had no right to supersede the execution of the writ, and if permitted to do so the effect would be to destroy a remedy for immediate relief, and where no delay should exist in its execution.

While the writ is purely mandatory and not remedial, we find nothing in the Code of Practice with reference to the right of appeal distinguishing a proceeding of this character from a final order or judgment in other cases. No exception has been made, but, on the contrary, when the Commonwealth...