Boyd v. Chambers

• Decision Date: 01 November 1879
• Parties: Boyd v. Chambers.
• Court: Kentucky Court of Appeals

Page 140

78 Ky. 140

Boyd v. Chambers.

Court of Appeals of Kentucky.

November 1, 1879.

APPEAL FROM DAVIESS CIRCUIT COURT.

MESSRS. WILLIAMS & POWERS FOR APPELLANT.

MESSRS. LITTLE & SLACK FOR APPELLANT.

W. N. SWEENEY FOR APPELLEE.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

The appellant, claiming to have been duly elected, commissioned, and qualified to the office of city judge of the city of Owensboro, instituted the present action against the appellee to prevent the usurpation of that office, and to compel the latter to surrender the office and records to him, &c. This character of action is authorized by sections 483 and 487 of the Civil Code.

It is alleged in the petition that the appellant was duly elected to the office in question, by the qualified voters of the city of Owensboro, on the first Monday in August, 1878; that he had been commissioned by the Governor; had taken the oath prescribed by law; executed his bond; and when attempting to enter on the duties of the office found appellee in possession of the records, claiming to act and to be the rightful incumbent, and was then exercising the powers and receiving all the emoluments of the office; that he refused to surrender on demand, although he had no right or title to the office.

A general demurrer was filed to the petition and sustained by the court below, the petition dismissed, and from that judgment the appeal is prosecuted. The single question in the case is, was the appellant legally elected and qualified to the office of city judge under the constitution and laws of the state. Section 41 of article 4 of the constitution provides as follows: "The city court of Louisville, the Lexington city court, and all other police courts established in any city or town, shall remain, until otherwise directed by law, with their present powers and jurisdiction, and the judges, clerks, and marshals of such courts shall have the same qualifications, and shall be elected by the qualified voters of such cities or towns, at the same time and in the same manner and hold their offices for the same term as county judges, clerks, and sheriffs, respectively, and shall be liable to removal in the same manner. The general assembly may vest judicial powers, for police purposes, in mayors of cities, police judges, and trustees of towns."

The appellant maintains that the election of city judge is regulated by this provision of the constitution, and, on the other hand, it is claimed for the appellee that the election of that officer, as to time, qualifications, &c., is regulated alone by the charter of the city, approved in February, 1866. The 4th section of the charter, or act of incorporation, passed in February, 1866, provides for a city judge, and the 25th section provides for his election on the first Monday in April succeeding, and biennially thereafter. His jurisdiction and powers are also clearly defined, and under this provision of the charter that officer has been elected since April, 1866, and the appellee is holding by virtue of an election held under the charter.

The 6th section of article 6 of the constitution provides, that "officers for towns and cities shall be elected for such terms, and in such manner, and with such qualifications as may be prescribed by law." It is insisted by counsel for the appellant that the case of the Trustees of Owensboro v. Webb is decisive of this case, and the clause of the constitution last quoted has no application to cities and towns incorporated at the time the constitution was adopted, and that such cities or towns as then had police courts organized, or courts with like jurisdiction, must be controlled in the election of such officers by section 41 of article 4 of the constitution. Although the case relied on conduces to sustain this view of the question, it is not necessary, if even deemed proper, to question the authority of that case or the conclusion reached by it, as the constitutionality of the act of February, 1866, can be maintained on other grounds. It was never intended by section 41 of article 4 of the constitution to take from the legislature the power to enlarge the boundaries of towns in existence at the...