Benton v. Clay

• Decision Date: 14 October 1921
• Parties: BENTON, COUNTY CLERK, ET AL. v. CLAY.
• Court: Kentucky Court of Appeals

233 S.W. 1041

192 Ky. 497

BENTON, COUNTY CLERK, ET AL. v. CLAY.

Court of Appeals of Kentucky.

October 14, 1921

Appeal from Circuit Court, Henderson County.

Suit by C. L. Clay against Otis A. Benton, County Clerk, and others to enjoin printing names on a ballot for an election under the prior form of city government after alleged adoption of a new form. From a judgment deciding that the new form of government was legal but granting no affirmative relief defendants appeal. Appeal dismissed without prejudice.

Henson & Taylor, of Henderson, for appellants.

John C Worsham and G. O. Letcher, both of Henderson, for appellee.

THOMAS J.

At the regular election on November 2, 1920, the voters of the city of Henderson, Ky. a city of the third class, by a large majority adopted the commission form of government for such cities, as is provided by section 3480b, Kentucky Statutes Carroll's 1915 Edition. The votes of the election adopting that form of government were duly canvassed and certified as required by law, and nothing remained to be done to put into effect the commission form of government except the election of the necessary officers, including two commissioners in the year 1921, as provided in subsection 5 of the section referred to.

On June 8, 1921, this action in equity was filed by appellee C. L. Clay against appellant and defendant Otis A. Benton, the clerk of the county court of Henderson county, and George M. Royster, in which plaintiff sought an injunction against the clerk to prevent him from printing the name of his codefendant Royster on the ballot for the primary election on August 6, 1921, as a candidate for the Democratic nomination for councilman in one of the wards of the city, and to enjoin Royster from taking any steps seeking such nomination upon the ground that the commission form of government had been adopted, which dispensed with the office of councilman, and substituted therefor commissioners, and that plaintiff, as a taxpayer, was interested in preventing the expense of such illegal primary election. Answer was filed in which the validity of the election on November 2, 1920, adopting the commission form of government, was attacked on the sole ground that the sheriff, who held it under the order of the county court calling it, had not complied with the law requiring him to publish the order in a newspaper, as is provided in subsection 3 of the section supra. But in all other respects it was admitted by the answer that the election was legal.

Pursuant to notice the judge of the Henderson circuit court, on June 18, 1921, granted a temporary injunction in accordance with the prayer of the petition. The defendants, in due time, made motion before Judge Clay, a member of this court, to dissolve that injunction, and he, before the August primary, 1921 overruled that motion, three other members of the court concurring. No further action was taken in the case until the regular September, 1921, term of the Henderson circuit court, when on the 16th day of that month the cause was submitted for final judgment, and the court adjudged that the election adopting the commission form of government was legal and regular in all respects, but no reference whatever was made in the judgment to any affirmative relief by injunction or otherwise, either for or against any of the parties litigant. From that judgment this appeal by defendants is prosecuted. No prayer...