Goin v. Smith

• Decision Date: 21 March 1924
• Citation: 202 Ky. 486,260 S.W. 10
• Parties: GOIN ET AL. v. SMITH, MAYOR, ET AL.
• Court: Kentucky Court of Appeals

260 S.W. 10

202 Ky. 486

GOIN ET AL. v. SMITH, MAYOR, ET AL.

Court of Appeals of Kentucky.

March 21, 1924

Appeal from Circuit Court, Franklin County.

Action by D. D. Smith, Mayor, and others, against Henry Goin and another. Judgment for plaintiffs, and defendants appeal. Affirmed.

Frank Dailey and John D. Carroll, both of Frankfort, for appellants.

Morris & Jones, of Frankfort, for appellees.

CLARKE J.

At the regular election in November, 1921, a majority of the voters voting on a proposition to adopt the commission form of government in Frankfort, voted in the affirmative. Upon the assumption that that election was valid, appellants Goin and Hulette were elected city commissioners at the November 1923, election, to succeed councilmen whose term of office expired January 7, 1924, in the management of city affairs. Goin and Hulette were preparing to qualify as city commissioners, and as such to assume the management of city affairs, when this action to enjoin them from so doing was instituted by the mayor, administrative officers appointed by him, and a resident taxpayer. The lower court, having decided that the plaintiffs could maintain the action and that defendants were not entitled to office, granted the injunction, and defendants have appealed.

It is agreed that the submission at the November, 1921, election of the question of adopting the commission form of government was not advertised as is mandatorily required by section 3480b3 of the Statutes. It follows not only that the election was void (Seiler v. Dillon, 190 Ky. 779, 228 S.W 688), but also that there was no such office as city commissioner of Frankfort, and appellants were not elected to any office or entitled to discharge any official functions in city affairs.

It is earnestly insisted, however, that, notwithstanding defendants had no right to manage the affairs as city commissioners or otherwise, plaintiffs could not maintain an action to prevent them from so doing because of chapter 13 (sections 480-488 of the Civil Code), the pertinent sections of which read as follows:

"480. In lieu of the writs of scire facias and quo warranto, or of an information in the nature of a quo warranto, ordinary actions may be brought to vacate or repeal charters, and to prevent the usurpation of an office or franchise."

"483. If a person usurp an office or franchise, the person entitled thereto, or the commonwealth, may prevent the usurpation by an ordinary action."

"487. A person adjudged to have usurped an office or franchise shall be deprived thereof by the judgment of the court, and the person adjudged entitled thereto shall be placed in possession thereof; but no one shall be adjudged entitled thereto, unless the action be instituted by him. And the court shall have power to enforce its judgment by causing the books and papers, and all other things pertaining to the office or franchise, to be surrendered by the usurper; and by preventing him from further exercising or using the same; and may enforce its orders by fine and imprisonment until obeyed."

Reading these sections together, it is apparent that they contemplate not only the existence of an office to be usurped, but that has actually been usurped and is being administered by one not entitled thereto. The one conceivable reason for confining the right of action to the person entitled to the usurped office or the commonwealth is that the orderly administration of public affairs, by even a de facto officer, may not be halted or hindered by any one except those directly interested in the office itself. In other words, the sole purpose of this common-law action is to provide a means for ousting one wrongfully in the possession of an office. We expressly so held in Powell v. Hambrick, 164 Ky. 340, 175 S.W. 633, saying:

"The very purpose of these sections of the Code was to

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