McCreary v. Williams

• Decision Date: 20 March 1913
• Citation: 153 Ky. 49,154 S.W. 417
• Parties: McCREARY, Governor, v. WILLIAMS.
• Court: Kentucky Court of Appeals

154 S.W. 417

153 Ky. 49

McCREARY, Governor, v. WILLIAMS.

Court of Appeals of Kentucky.

March 20, 1913

Appeal from Circuit Court, Franklin County.

Proceedings by James E. Williams against James B. McCreary, Governor. From a judgment for plaintiff, defendant appeals. Affirmed.

James Garnett, Atty. Gen., M. M. Logan, Asst. Atty. Gen., L. G Campbell, of Pine Knot, and W. R. Cress & Son, of Monticello for appellant.

Denton & Flippin, of Somerset, for appellee.

LASSING J.

Section 5 of the legislative act of 1912, creating the county of McCreary, provides: "It shall be the duty of the Governor to appoint from the eligible citizens of said county, all of the officers provided for a county by the Constitution and laws of this state. *** Such officers shall be required to give bond as is required of similar officers under the Constitution and laws of this state, and they shall hold office until the next regular county election and until their successors are elected and qualified." Laws 1912 c. 46. Under this authority, the Governor, on June 12, 1912, when the act became a law, appointed J. C. Goode to the office of county judge. He accepted the appointment, qualified, and entered upon the discharge of his duties. In October, 1912, he resigned, and one Henry Jones was appointed in his stead and still holds the office. On January 4, 1913, J. E. Williams filed suit in the Franklin circuit court, in which he sought, by mandamus, to compel the Governor to issue to him a commission as judge of McCreary county. In his petition, he alleged facts showing that he was legally qualified to hold the office of county judge; the creation of the county by legislative act was set out at length. The vacancy in the office of county judge on June 12, 1912, when the act became a law was set out, and plaintiff alleged that it was required to be filled by election at the regular November election in 1912; that he procured the Republican nomination for said office and caused this fact to be certified to the county court clerk of McCreary county, within the time prescribed by law; that the clerk caused his name to be printed on the official ballot used at said election under the Republican emblem; that there were two other candidates for said office at said election; that one of them received 84 votes, the other 305 votes, while he received 525 votes, making a total of 914 votes cast for judge, out of a total of 1,261 cast at said election for presidential electors; that, prior to said election, he made an active canvass for said office, and his candidacy was well known; that after said election, at the time required by law, the board of election commissioners for said county met at the then seat of government and canvassed the returns of said election, and, having done so, issued a certificate in triplicate showing the election of plaintiff to the office of county judge; that one copy of said certificate was delivered to the plaintiff, one lodged in the county court clerk's office, and one forwarded to the Secretary of State at Frankfort; that, notwithstanding his election to said office, the Governor refused to issue to him his commission, and he was on that account deprived and kept out of his office. He prayed for a writ of mandamus requiring the Governor to issue said commission. The defendant demurred to the petition. Pending a decision thereon, the following agreed stipulation of facts was filed, with the understanding that, on the pleadings and this stipulation, the case should be submitted: "It is agreed that, at the time the bill creating McCreary county went into effect, J. C. Goode was by the Governor of Kentucky appointed as county judge of McCreary county, and said Goode held said office until within three months before the regular election, 1912, and then resigned as said county judge of McCreary county, and thereupon and within three months before said November election, 1912, the said defendant, as Governor of the commonwealth of Kentucky, appointed one Henry Jones to said office of county judge of McCreary county, who executed bond and took the oath as required by law and is now the acting county judge of said McCreary county." Thereupon the court entered judgment for plaintiff. The defendant appeals.

Section 102 of the Constitution provides: "When a new county shall be created, officers for the same, to serve until the next regular election, shall be elected or appointed in such way and at such times as the General Assembly may prescribe." And section 152 provides: "Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment as follows: If the unexpired term will end at the next succeeding annual election at which either city, town, county, district or state officers are to be elected, the office shall be filled by appointment for the remainder of the term. If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or state officers are to be elected, and if three months intervene before said succeeding annual election at which either city, town, county, district or state officers are to be elected, the office shall be filled by appointment until said election, and then said vacancies shall be filled by election for the remainder of the term. If three months do not intervene between the happening of said vacancy and the next succeeding election at which city, town, county, district or state officers are to be elected, the office shall be filled by appointment until the second succeeding annual election at which city, town, county, district or state officers are to be elected; and then, if any part of the term remains unexpired, the office shall be filled by election until the regular time for the election of officers to fill said offices. Vacancies in all offices for the state at large, or for districts larger than a county, shall be...