Com. ex rel. Wootton v. Berninger

• Decision Date: 25 September 1934
• Parties: COMMONWEALTH ex rel. WOOTTON, Atty. Gen., v. BERNINGER.
• Court: Kentucky Court of Appeals

74 S.W.2d 932

255 Ky. 451

COMMONWEALTH ex rel. WOOTTON, Atty. Gen., v. BERNINGER.

Court of Appeals of Kentucky

September 25, 1934

Appeal from Circuit Court, Campbell County.

Action by the Commonwealth, on the relation of Bailey P. Wootton Attorney General, against John A. Berninger. From a judgment of dismissal, the Commonwealth appeals.

Affirmed.

Reuscher & Reuscher, of Newport, and Bailey P. Wootton, Atty. Gen for appellant.

C. W Yungblut, of Newport, for appellees.

CLAY Justice.

The commonwealth of Kentucky, on relation of the Attorney General, brought this action against John A. Berninger to oust him from the office of commissioner of the city of Newport on the ground that he was a usurper. Berninger answered in two paragraphs. In the first paragraph he denied certain material allegations of the petition, and in the second paragraph pleaded certain facts which will be hereafter noted. Having declined to plead further after its demurrer to each of the paragraphs had been overruled, the petition was dismissed, and the commonwealth appeals.

The facts pleaded in the second paragraph of the answer, and admitted by the demurrer, are: At the regular election held in the year 1933, Berninger was elected one of the commissioners of the city of Newport for a term of two years. Within the proper time he qualified by taking the necessary oath and executing the required bond, and entered upon the duties of his office on the first Monday in January, 1934. Thereafter he attended the regular sessions of the board of commissioners and performed the duties of his office until January 30, 1934. On that day the board was in regular session and he submitted to the board the following communication signed by him and addressed to the mayor and the city commissioners: "Accept my resignation as City Commissioner to be effective on this date, January 30th 1934."

On the reading of the communication by the clerk it "was laid over indefinitely" by unanimous vote. No further action on the communication was taken by the board until its regular session held on March 13, 1934. Berninger was present on that occasion and presented and had read a communication stating in substance that he had been informed that his resignation was not effective for the reason that it had never been accepted by the board, and no successor was appointed or qualified to fill the office, and that he desired to withdraw the resignation, giving as his reasons the fact that his health had been restored by his recent vacation; that if his resignation became effective, it would mean considerable expense to the city in holding an election in November; and that he had received many communications from the business organizations of the city and petitions signed by many citizens of the community requesting his return. For these reasons he felt honor bound to continue in the office and perform the trust imposed upon him by the voters of the city. The communication was received by the board and ordered filed and spread upon its minutes. No further action was taken by the board. By reason of these facts the resignation was never accepted by the board or any officer, and no vacancy in the...