Cawood v. Hensley

• Decision Date: 07 March 1952
• Parties: CAWOOD v. HENSLEY.
• Court: United States State Supreme Court — District of Kentucky

Page 27

247 S.W.2d 27

CAWOOD v. HENSLEY.

Court of Appeals of Kentucky.

March 7, 1952.

R. Campbell Van Sant, Frankfort, Ray O. Shehan and Daniel Boone Smith, Harlan, for appellant.

R. Kent Sampson, J. S. Greene, Jr., Harlan, for appellee.

STANLEY, Commissioner.

The issue is whether the appellant, W. Bruce Cawood, is entitled to the office of chief of police of Harlan. He appeals from an adverse declaratory judgment.

As authorized by KRS 95.720(1) the council of Harlan enacted an ordinance on May 4, 1949, providing that the chief of police should thereafter be elected by the voters. The office had theretofore been filled by appointment of the council. At the election in November, 1949, John L. Greenlee was elected for a four year term, beginning January 2, 1950. He resigned March 8, 1950. On March 13, 1950, the council repealed the ordinance of May 4, 1949, thus endeavoring to reinvest itself with the power of appointment. At the same session, March 13, the council appointed Logan Middleton to fill the vacancy. Middleton resigned August 13, 1951, and W. Bruce Cawood was appointed to fill the vacancy created first by Greenlee's resignation then Middleton's resignation. In naming Middleton, the council merely accepted his application for the place and did not declare whether it was to fill a vacancy in an elective office or an original appointment.

The resolution naming Cawood recites that it was under the Civil Service statute, KRS 95.761, within which the city had brought itself in September 1950, but that 'if it should be construed that the chief of police is not under Civil Service,' then Cawood was appointed to fill the vacancy created by Greenlee's resignation. Thus, it is made uncertain as a matter of law whether Cawood's appointment was (1) to fill a vacancy 'in any elective city office * * * subject to the provisions of Sec. 152 of the Constitution', KRS 86.240, which would be until a special election could be had to fill the unexpired term or (2) an indefinite term under the Civil Service statute, KRS 95.762(4), or (3) for two years, the term provided where the council has the original appointing power, KRS 95.720(3).

In the apparent belief that the ordinance of March 13, 1950, which returned to the council the original or exclusive power of appointing the chief of police, could not become effective until after the term for which Greenlee had been elected had expired, namely, the first Monday in January, 1954 (proposition (1) above), F. S. Hensley had his name placed on the ballot at the November, 1951, election as a candidate for the unexpired term, and he received a majority of the votes. He complied with the formalities of qualifying for the office and demanded its possession of Cawood but was refused. Hensley then filed this suit charging Cawood to be a usurper and asking that he be placed in immediate possession of the office. The trial court sustained Hensley's contention.

The essential question is whether it was proper for the election to be held in which Hensley was the successful candidate because he must recover the office from the alleged usurper on the strength of his own and not on the weakness of Cawood's title to it. Sec. 483, Civil Code of Practice; Saylor v. Rockcastle County Board of Education, 286 Ky. 63, 149 S.W.2d 770. The answer rests on the validity or invalidity of the action of the council in assuming the power of appointing the chief of police under KRS 95.720(1), and the effect of holding the election in 1951 instead of 1950 under the terms of Sec. 152, Constitution, and KRS 86.240(1).

The statute contemplates the appointment of a chief of police by the council of a city of the fourth class but permits the council 'by ordinance enacted not less than sixty days previous to any November election, to provide for his election by the voters of the city.' KRS 95.720(1). Where the chief of police has been appointed by the council, it is for a term of two years. KRS 95.720(3). Where he has been elected by the people, the term is four years. Sec. 160, Constitution, City of Pikeville v. Stratton, 257 Ky. 320, 78 S.W.2d 12.

May the council during that term change the method of selection and reinvest itself with the appointing process? If it may, then Hensley's election in November, 1951, was a nullity. If the change back to the original method of appointing was illegal, then Hensley has the right to the office and, therefore, may maintain the action against the incumbent as a usurper.

The circuit court delivered an opinion taking cognizance of Pinson v. Morrow, 189 Ky. 291, 224 S.W. 879, upon which the appellant, Cawood, relies, but regarded the applicable language as dictum. The case involved the office of the police judge of Pikeville, also a city of the fourth class. Trivette had been elected by the people. He resigned, and the council named Reynolds to fill the vacancy. Thereafter, in March, 1919, it passed an ordinance repealing the former ordinance and providing that the police judge should be appointed by the council. Pinson became a candidate at the ensuing November election and received a majority of the votes. Immediately thereafter Reynolds resigned, but the council renamed him to fill the vacancy created by Trivette's resignation. The opinion states one of three questions raised to be the validity of the ordinance of March, 1919, providing for the appointment of the police judge by the council. After full consideration of other questions, the opinion held Reynolds' appointment was not an original one under the new ordinance but was made under Sec. 3551, Ky.Stats., which gave the council power to fill a vacancy in the office for the remainder of the elected term. (It should be noted Sec. 3551 was later amended in respect to filling a vacancy in an elective office as it now appears as KRS 86.240(2).) However, in closing the opinion, the writer stated that Pinson's election in November, 1919, was a nullity 'because under the ordinance adopted in March, 1919, the police judge, whether as an original or a vacancy appointment, must be appointed by the council, and not elected by the people.' [189 Ky. 291, 224 S.W. 882.] This recognized as valid the reinvestment of the appointing power, though such recognition was not necessary to the decision, and the statement was made without analyzing or even discussing the proposition.

We have examined the original Pinson record. The validity of the ordinance of March, 1919, was merely lurking in it. There was some argument as to its retroactive effect and the legal right of the same councilmen to invest themselves with the power and then exercise it in order to circumvent newly elected members. As stated, the case was decided upon other grounds and the reference to the validity of the particular ordinance was surplusage. A statement in an opinion not necessary to the decision of the case is obiter dictum. It is not authoritative though it may be persuasive or entitled to respect according to the reasoning and application or whether it was intended to lay down a controlling principle. Utterback's Adm'r v. Quick, 230 Ky. 333, 19 S.W.2d 980. With his rare felicity of...