Craft v. Davidson

• Decision Date: 22 October 1920
• Citation: 189 Ky. 378,224 S.W. 1082
• Parties: CRAFT v. DAVIDSON ET AL. WILLIAMS v. DAVIDSON ET AL.
• Court: Kentucky Court of Appeals

224 S.W. 1082

189 Ky. 378

CRAFT v. DAVIDSON ET AL.

WILLIAMS v. DAVIDSON ET AL.

Court of Appeals of Kentucky.

October 22, 1920

Appeal from Circuit Court, Floyd County.

Separate election contests by I. T. Craft and by W. W. Williams against A. L. Davidson and others, which were heard together. Judgments dismissing each petition, and plaintiffs appeal. Affirmed.

C. B Wheeler, of Prestonsburg, for appellants.

J. D Harkins and Hamilton & Wallen, all of Prestonsburg, for appellees.

THOMAS J.

These two cases, heard together below and treated the same way here, involve contests over two of the six memberships in the board of councilmen of the city of Prestonsburg, Ky. The right to maintain the action is claimed to exist because of the provisions of subsection 12 of section 1596a of Carroll's Kentucky Statutes, Edition 1915. The final judgment dismissed each petition, and plaintiffs seeking a reversal of the judgments prosecute these appeals.

The record presents the preliminary question of the jurisdiction of the court to entertain the suits, which question is neither raised nor discussed by counsel for either side, but which we deem necessary to first dispose of. No one has an inherent right to an office, because of which fact there existed no remedy at common law by which an unsuccessful candidate upon the face of the returns could contest the right of his opponent to the office involved. 15 Cyc. 393 394; 20 Corpus Juris, 209, 210; 9 R. C. L. 1157; Pflanz v. Foster, 155 Ky. 15, 159 S.W. 641; and Stine v. Berry, 96 Ky. 65, 27 S.W. 809, 16 Ky. Law Rep. 279. This principle is thus stated in the Pflanz Case:

"There is no inherent power in the courts to pass upon the validity of elections or to try contested election cases; their authority * * * is wholly statutory and must be either given expressly or by necessary implication."

But most, if not all, the states by their Legislatures have prescribed statutory remedies whereby a defeated candidate may contest his opponent the right to the office. Our statute conferring such right is subsection 12, supra, and in so far as it makes provision for contesting the office here involved it says:

"In case there shall be a contest of the election * * * of any police judge, clerk, marshal, or other elective municipal officer, where there is no other provision by law for determining the contested election of such municipal officer, the contest shall be made by the filing of a petition in the circuit court of the county where the contestee resided."

The opinions of the various courts are in conflict as to whether such statutory remedies supersede and are exclusive of the common-law writ of quo warranto, but this court, in the case of Stack v. Commonwealth, 118 Ky. 481, 81 S.W. 917, 26 Ky. Law Rep. 343, aligned itself with the majority of the courts holding that a statutory contest remedy did not repeal or supersede the remedy by which courts at the instance of the sovereignty could oust a usurper from office, which was the only function of the common-law writ of quo warranto and which relief is now afforded in this commonwealth by an ordinary action as provided in section 480 of the Civil Code of Practice. But the instant cases are not proceedings to oust a usurper from office, and we need concern ourselves no further about this question.

There is likewise a conflict in the opinions as to whether the statutory right given to municipal councils to judge of the election and qualification of its members, to hear and determine contests of municipal offices, are exclusive or only cumulative with the jurisdiction to hear and determine election contests conferred by statute upon the courts. 20 Corpus Juris, 15; 15 Cyc. 396, 397; and 9 R. C. L. 1160, 1161. But in those jurisdictions where the remedy before the municipal council is held to be cumulative with a contest suit in court it is admitted that it is within the power of the Legislature providing the respective remedies to expressly or by necessary implication make the one exclusive of the other. Hence in 9 R. C. L., supra, it is said:

"The Legislature may, however, grant to city councils the right of final determination of contests for membership and exclude the courts from consideration of the question on the facts of the case."

See, also, New Orleans v. Morgan (La.) 7 Mart. (N. S.) 1, 18 Am. Dec. 232; State v. Kempf, 69 Wis. 470, 34 N.W. 226, 2 Am. St. Rep. 753.

But the question is no longer an open one with us, since it was expressly held in the case of Stine v. Berry, supra, and impliedly so in the case of Scholl v. Bell, 125 Ky. 750, 102 S.W. 248, 31 Ky. Law Rep. 335, that municipal councils possessed exclusive jurisdiction for the trial of contest cases involving the right to a municipal office; the court in the Stine Case saying:

"We understand, and so adjudge, that the statute in regard to contested elections for state and county offices is exclusive, and that when a mode of contest is provided in a city charter for contesting the election of city officers, it excludes any other remedy."

In the Scholl Case the court took jurisdiction because, and only because, the title to the office of each member of the council was involved and for that reason the tribunal provided by law to hear and determine the contest was disqualified on account of personal interest. Upon this point the court said:

"In all cases where there is a contest over the seat of a minority of the members of the council, section 2771 applies; but where all, or more than a majority, are contested, then the contest must be by suit in the circuit court, as in a contest over county offices. It never was the intention of the lawmakers that one should be the judge of his own election."

Section 2771, referred to in the excerpt, is a part of the charter of cities of the first class, and it provides in part that "each board shall judge the eligibility and the election of its members," etc.; but, since the title of each member of the board to his office was involved in that case, the court held that the contest proceedings were rightfully brought in the circuit court, as is provided in subsection 12 of section 1596a, supra. That subsection confers jurisdiction upon the circuit courts in the case of a contest over municipal offices only "where there is no other provision by law for determining the contested election of such municipal officer." Section 3635 of the statute is a part of the charter of cities of the fifth class, and it contains the exact provision with reference to the council being the judge of the qualification and election of its members, as does section 2771, relative to cities of the first class. In addition to the powers conferred upon the council by section 3635, section 3659, being a part of the same charter of fifth-class cities, among other things, says:

"And contested elections in all cities for municipal officers shall be decided as may be provided by ordinance."

The city council for cities of the fifth class is composed of six members, and they are elected by all the qualified voters in the city from the city at large. No candidate for the office of councilman either runs for or is elected to any particular one of the six seats to be filled. Each candidate in the election is opposing all others, and the six receiving the highest number of legal votes are elected and entitled to serve. It is therefore necessarily true that in contest proceedings the title of each of the contestee members of the council to their respective offices is involved even in a single contest, for it might be that the contestant received a greater number of legal votes than either of those who were declared elected, and in case of there being two contests, as is true here, one contestant might be adjudged to have defeated all or a portion of the contestees and the other to have done likewise. In the two instant cases the petitions allege that each contestant received more legal votes than did either of the four contestees, and under such circumstances it necessarily follows that each of the four contestees was properly made a party and that the title to each of their offices is involved. This view is borne out by the text in the volume of Corpus Juris, supra, 223, which says:

"But where several candidates are voted for on the same ticket (as was true with appellees here), each candidate being opposed to every other candidate for the office, and none of them running for any particular one of the several places to be filled, all successful candidates and all persons who were candidates in the same election are necessary parties."

In the case of Conway v. Sexton, 243 Ill. 59, 90 N.E. 203, the plaintiff contested the right to the office of one of the five trustees of a sanitary district created and organized under an act of the Legislature of that state. The contestant made all five of those who had been declared elected parties defendants and contestees in his suit. It was objected that there was a misjoinder of parties, but the court held otherwise, saying: "Under this statute five trustees were to be elected. Each candidate was opposed to every other candidate who was running for the office of trustee. Neither candidate was running for any particular one of the five places to be filled, but under the law the five candidates that received the highest number of votes at this election were elected to the five positions."

The same proposition is in effect held by this court in the case of Burns v. Lackey, 171 Ky. 21, 186 S.W. 909. The office of four members of the city council of Prestonsburg is involved in these cases, which is more than a majority of the members of the board, thus disqualifying that body under the doctrine...