Howton v. Morrow
| Decision Date | 01 June 1937 |
| Citation | 269 Ky. 1,106 S.W.2d 81 |
| Parties | HOWTON v. MORROW et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Hopkins County.
Action by Elmer Howton against Carroll Morrow and others, wherein Frank D. Berry intervened. From the judgment, the plaintiff appeals.
Affirmed.
Neville Moore, of Madisonville, for appellant.
H.F.S Bailey, of Madisonville, for appellee Carroll Morrow.
B.N Gordon, of Madisonville, for appellee Irene Hatcher.
Frank D. Berry, of Madisonville, for other appellees.
In this action brought under the Declaratory Judgment Act (Civ. Code Prac. § 639a--1 et seq.) by Elmer Howton, a resident and voter of Hopkins county, the eligibility of the appellee Carroll Morrow for the office of county attorney of Hopkins county is in issue.
The appellee Morrow is a candidate for the nomination of the Democratic party for the office of county attorney of Hopkins county for the four-year term beginning the first Monday in January, 1938. His opponent for the nomination, Frank D Berry, intervened in the action and asked that Morrow be adjudged eligible to hold the office. The case was submitted upon an agreed statement of facts, and it was adjudged that Morrow was eligible to hold the office of county attorney for the term beginning on the first Monday in January, 1938, and it was further adjudged that it was the duty of the county clerk, who was made a defendant, to cause Morrow's name to be printed on the official Democratic ballot as a candidate. The facts giving rise to the controversy are these:
Morrow was issued a license to practice law in September, 1932, and on September 26, 1932, was administered the oath of office as attorney at law. He then entered into the practice of law in Hopkins county and continued to practice, and was a practicing attorney when he was elected clerk of the Hopkins circuit court at the regular election in November, 1933. He qualified as circuit clerk on the first Monday in January 1934, and since that time has not accepted any new employment in cases pending in the courts of this state. At the time he qualified as circuit clerk, he was acting as attorney in a number of cases pending in the Hopkins circuit court and in one bankruptcy proceeding, and he continued to act as attorney in these cases until they were disposed of. The last case was stricken from the docket in February, 1935. Since his qualification as clerk of the Hopkins circuit court, he has, at various times, rendered services as an attorney at law in the preparation of deeds, wills, and other legal instruments and documents. He possesses all of the other necessary legal qualifications.
It is appellant's contention that the appellee, by accepting the office of circuit court clerk, limited his right to practice law and therefore has not been a practicing lawyer since the first Monday in January, 1934, within the meaning of section 100 of the Kentucky Constitution, which provides that "no person shall be eligible to the office of county attorney unless he shall have been a licensed practicing lawyer two years." Section 110 of the Kentucky Statutes provides that a clerk or deputy clerk of any court "shall not practice law or render any service as an attorney or counsellor-at-law, in any of the courts of this Commonwealth, except in such cases as he may have been employed in previous to his election, or in cases in which he may be personally interested." All persons are equally eligible for office unless they are excluded by some constitutional or legal disqualification, and, consequently, provisions in statutes and Constitutions imposing restrictions upon the right of a person to hold office should receive a liberal construction in favor of his eligibility. McGinnis v. Cossar, 230 Ky. 213, 18 S.W.2d 988; Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316. It would be a narrow construction of section 100 of the Constitution to hold that appellee was not a practicing lawyer within its meaning after the first Monday in January, 1934, merely because his right to practice was limited to a certain extent by reason of his acceptance of the office of circuit clerk. He did continue to practice until February, 1935, in the courts of this commonwealth in cases in which he had been employed previous to his election, and he prepared wills, deeds, mortgages, and other legal instruments, gave legal advice, and held himself out as an attorney at law willing and ready to accept employment in all lines of the profession except the one prohibited by section 110 of the Statutes. The Supreme Court of South Carolina, in a proceeding against a disbarred attorney for contempt in practicing law, defined the term "practicing law" as follows:
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