Collopy v. Cloherty

• Decision Date: 20 February 1894
• Citation: 95 Ky. 330
• Parties: Collopy v. Cloherty.
• Court: Kentucky Court of Appeals

95 Ky. 330

Collopy v. Cloherty.

Court of Appeals of Kentucky.

February 20, 1894.

APPEAL FROM CAMPBELL CIRCUIT COURT.

ROOT & ROOT FOR APPELLANT.

CHARLES J. HELM FOR APPELLEE.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Appellant brought this action to recover possession of the office of "foreman of street repairs and overseer of the poor," in the City of Newport, alleged to have been usurped and then illegally held by appellee. And this is an appeal from a judgment sustaining general demurrer to the petition, and dismissing the action.

1. It was not, as argued by counsel, necessary to set forth the entire ordinance of the Board of Councilmen creating the office in question, but to state, substantially, only so much thereof as is necessary to show prima facie his title and right to recover. It is alleged that in 1888 an ordinance was duly passed by said board providing for election of a person to act as foreman of street repairs and overseer of the poor in that city; and also sufficiently stated that the term of the office was to be for one year, beginning first day of each February. That one Roll was, in January, 1891, elected for one term, but before expiration thereof tendered his resignation, which was accepted, and appellee was thereupon appointed by the Board of Councilmen to hold said office, thus made vacant, during residue of the term ending February 1, 1892. That in January the Board of Councilmen duly elected appellant to said office for the term beginning February 1, 1892, and ending February 1, 1893. Whereupon he took the oath of office and executed the bond required by law. But that although he thereafter, and in due time, demanded of appellee possession of the office, he refused, and still illegally holds it. It seems to us there is enough stated in that connection to constitute a cause action, if the petition be not defective in any other respect.

2. It is contended the Board of Councilmen had no authority to create the office in question, because it is not mentioned or provided for in the following section of the charter: "The legislative, executive and ministerial power of said city shall be vested in a Mayor and a Board of Councilmen, consisting of two members from each ward, a City Clerk, Treasurer, Attorney, Engineer, Marshal, Physician, Assessor, Market Master, Weigher and Measurer, Wharf Master and Jailer, and such necessary deputies or assistants as may be required; each to possess the qualifications and serve for the...