Eagle v. Cox

• Decision Date: 26 March 1937
• Citation: 268 Ky. 58,103 S.W.2d 682
• Parties: EAGLE, Mayor, etc., v. COX.
• Court: Kentucky Court of Appeals

103 S.W.2d 682

268 Ky. 58

EAGLE, Mayor, etc., v. COX.

Court of Appeals of Kentucky

March 26, 1937

Appeal from Circuit Court, Whitley County.

Proceeding under Declaratory Judgment Law by Dr. William M. Cox against J. A. Eagle, Mayor pro tem and as Commissioner of the City of Corbin. From a judgment for plaintiff, defendant appeals.

Affirmed.

Hiram H. Owens, of Barbourville, for appellant.

Stephens & Steely, of Williamsburg, and M. A. Gray, of Corbin, for appellee.

MORRIS Commissioner.

The question for determination is whether or not appellee was legally elected to the office of Mayor of Corbin, Ky. on November 3, 1936. The court below, in a proceeding begun and conducted under the declaratory judgment law (Civ.Code Prac § 639a--1 et seq.), adjudged that appellee was so elected and enjoined appellant from refusing to recognize him as the lawfully elected mayor.

Corbin a city of the third class, during the period involved, was operating under the commission form of government. In November, 1935, appellant was elected as one of two commissioners then regularly elected for a two-year term assuming office in January, 1934. One S. B. Marcum had been elected to the office of mayor in 1933 for a four-year term, assuming office in January, 1934. Early in April, 1936, J. M. Tipton instituted a proceeding leading to the removal of the mayor, on the ground that he had entered into contracts for the purchase of materials to be used by the city, with a company in which he had an interest. Hearing on the charge was had, and on April 16, 1936, an order was entered removing the mayor from office. Reverting for the moment, it appears from the record that upon assumption of office by appellant, he was by the then mayor and his fellow commissioner elected mayor pro tem. (section 3480b-13) and as such invested with power to perform the duties of mayor in the event of the mayor's absence from the city or his inability to attend to official duties.

Upon the removal of the mayor, J. M. Tipton was appointed commissioner. Section 3480b-21 authorized an appointment of commissioner until the vacancy might be filled. Under the section supra, it is provided that in case of a vacancy in the office of mayor, the pro tem. mayor shall act as mayor and possess all the rights and powers and perform all the duties of the mayor under the official title, however, of the mayor pro tem., until such vacancy is filled, whereupon if his term has not then expired he drops back into the office of commissioner. Under the law Marcum's term as mayor would have ended January, 1938; his successor to be regularly elected in November, 1937.

Taking the view that a vacancy existed by reason of Marcum's removal and his failure to pursue necessary steps for his reinstatement, and that more than three months would intervene between the date of removal or vacancy in the office (Const. § 152), Dr. Cox circulated petitions to have his name printed on a ballot as an Independent candidate for Mayor of Corbin. The city of Corbin is located in two counties, Knox and Whitley; the larger part of the city being in Whitley.

Three petitions were circulated; one contained the names of voters living in the Whitley portion of the city, one signed by those living in the Knox portion, the third names of voters of both Knox and Whitley counties, all residents of Corbin. The one signed by the voters of both counties contained names of 30 voters; the one signed by Whitley voters about 28 or 29; and the one signed by the Knox voters contained 26 names. One of these petitions was filed with the clerk of Knox county, one with the clerk of Whitley county, and a third filed with the Secretary of State at Frankfort. The petitions filed with the county clerks on September 19, 1936, were certified to the Secretary of State; this is true of one of the petitions to say the least, and the Whitley county clerk was notified by the Secretary of State to place appellee's name on a ballot to be voted in the regular election.

The election was held on November 3, the result being certified by the election officers to the respective county clerks and to the State Board of Election Commissioners at Frankfort. Each of the clerks above mentioned certified to Dr. Cox that he had been elected mayor, as did the proper officer of the State Election Commission. In addition to these numerous precautionary filings and receipts of evidence of his election, appellee procured from the Governor of the State a commission evidencing his election as mayor of Corbin.

These returns showed that appellee had received 1,255 votes, the combined total of all votes cast for others being 580. After the issuance of certificates to him, the appellee, on November 24, appeared in the county court of Whitley county, produced his evidences of title to office, executed bond in the sum of $10,000 as required by law, which was approved by the judge of the Whitley county court who administered to appellee the oath of office. Appellee filed duly certified copies of the qualifying orders with the Knox county clerk.

At a meeting of the Board of Commissioners held on the same night, appellee appeared with documentary evidence showing his election and qualification, which were presented to the board in session. The mayor pro tem., or acting mayor, with one Commissioner Tipton, refused to recognize the claims of appellee, directed the city clerk to lay aside the proffered documents, which he did, and appellee was not allowed to take any part in the proceedings.

On December 8, 1936, appellee filed his petition in equity in the Whitley circuit court setting out in detail the foregoing alleged facts and others which we deem immaterial to the issues, and upon these and a later amended petition, prayed the lower court for a declaration of his rights, seeking to have his election adjudged valid, and an order restraining appellant from further refusing to recognize him as the duly elected Mayor of Corbin.

Appellant in due time answered both original and amended petitions, denying therein each and every allegation of the pleadings and setting up affirmatively six or eight grounds which challenged the title to the office claimed by appellee; his right to maintain action against appellant; attacking the entire procedure whereby appellee was undertaking to establish his title. It was also pleaded that appellant had such a title to the office as could not be successfully attacked by appellee. In short, the issue came down to an assertion by appellee that appellant was usurping the office of mayor, while appellant said that appellee was attempting usurpation.

We shall not attempt to set out the numerous and various matters of defense plead as they appear in the answers, replies, and rejoinder, which completed the issues. It is sufficient for the purposes of this case to present, as briefly as possible, such defenses as are presented to us in brief, under the assumption that appellant has incorporated therein all claimed material contentions.

1. It is insisted that Dr. Cox could not have his name placed on the ballot for the November (regular) election, because he was not nominated as required by section 1550-1f, Ky.Stats., which became a law May 16, 1936, when the same is read in connection with section 3480b-10a, Ky. Stats. These two sections, as quoted in appellant's brief, read as follows:

"Hereafter all candidates for elective offices to be voted for at any general election shall be nominated by a primary held in accordance with the provisions of this Act. *** The provisions of this Act shall not apply to candidates for trustees of common schools or members of school boards nor to trustees in towns of the fifth and sixth class."

"Method of nomination and election.--The Mayor, Police Judge, Prosecuting Attorney of the police Court, and City Commissioners, shall be nominated and elected in the manner provided by the general election laws and general primary law of the State of Kentucky for the nomination and election of state and county officers."

It is noted that appellee sought to have his name on the ballot as a candidate of the Independent Party, his emblem to be the hand of justice balancing scales. He did not seek to be elected as a member of the Democratic or Republican Party, nor to have his name placed under the emblem of either of the dominant parties.

The act of 1936 (Ky.Stats. § 1550-1c et seq.), a re-enactment of the old primary law, is and was from the beginning a "party law" applying strictly to nominations by an affiliation or organization of electors representing a political party having a constituted authority for its government and regulation, and which at the last preceding election at which presidential electors were voted for cast at least 20 per cent. of the total vote. Such parties are required to elect all their candidates (with exceptions noted in section 1550-1g, Ky.Stats.) in the manner provided and not otherwise. Ky.Stats. § 1550-5. However, when we read section 1550-1e, Ky.Stats., we find it provided that "nothing in this Act shall be construed to prevent any political organization or party, not constituting a political party within the definition embraced in Section one thousand five hundred fifty-five (1550-5), Kentucky Statutes, Carroll's one thousand nine hundred thirty (1930) Edition, from making their nominations for any of the offices mentioned in this Act as they are now permitted by law to make same."

By comparing section 1550-5 of the 1930 statute with the same section of the 1936 statute, it will be found that they are identical. The court may not be advised as to whether or not there is a political organization or party known as the Independent Party, but we are cognizant of the fact...