Middleton v. Middleton

• Decision Date: 04 June 1931
• Citation: 239 Ky. 759
• Parties: Middleton v. Middleton et al. (Two Cases)
• Court: United States State Supreme Court — District of Kentucky

239 Ky. 759

Middleton v. Middleton et al. (Two Cases)

Court of Appeals of Kentucky.

Decided June 4, 1931.

1. Schools and School Districts. — School trustees may perform only duties enumerated in statute (Ky. Stats., sec. 4465).

2. Schools and School Districts. — Action by school trustees in declaring vacancy by trustee's acceptance of another office, and declaring another elected to fill vacancy held void for lack of jurisdiction (Ky. Stats., sec. 4465)

3. Schools and School Districts. — Action of school trustees in declaring vacancy by trustee's acceptance of another office and declaring another elected to fill vacancy held void where person elected was interested party acting in own behalf (Ky. Stats., sec. 4465).

4. Officers. — Constitution and statute held intended to prohibit same person from filling two offices at same time (Ky. Stats., sec. 3746; Constitution, sec. 165).

5. Municipal Corporations. — Office of school trustee is "state office," and office of city councilman or town trustee is "municipal office" and are incompatible (Ky. Stats., sec. 3746; Constitution, secs. 155, 165).

6. Schools and School Districts. — Where party was elected and qualified as trustee of school district, subsequent qualification, and assumption of duties as city councilman made vacancy in office of school trustee (Ky Stats., secs. 3744, 3746, 4465; Constitution, secs. 155, 165).

In Court of Appeals.

OPINION OF JUDGE RICHARDSON.

Sustaining Order Dissolving Temporary Restraining Order in First Action, and Setting Aside Order Granting Temporary Injunction in Second Action.

In the first above styled action, G.W. Middleton, Millard Kelly, Dan Kelly, Joe Cawood, and Bob Wilson are defendants. The last four named defendants are members of the board of trustees of the Evarts graded school district in Harlan county. G.W. Middleton was elected a member of it in May, 1929. At the November election, 1929, he was elected a member of the board of trustees of the city of Evarts, qualified on the first Monday in February, 1930, took oath of office and entered upon a discharge of his duties. After his election and qualification as a member of the board of trustees of the city of Evarts, he continued to discharge the duties as trustee of the Evarts graded school district. At the same time, he discharged the duties of the office of trustee of the city of Evarts and continued to do so until some time during the year 1931. During this time, Millard Kelly, Dan Kelly, Joe Cawood, and J. Morgan Middleton were the qualified and acting comembers with G.W. Middleton as trustee of the Evarts graded school district. The terms of Joe Cawood and J. Morgan Middleton expired in May, 1931, the date of the regular election and the time for the election and qualification of their successors in office. Several candidates were presented to the people of this school district at the May, 1931, election as candidates for the office. At this election Joe Cawood, Bob Wilson, and J. Morgan Middleton were candidates and were voted for, for the office of trustee of the school districts. Joe Cawood received 493 votes, Bob Wilson 472, and J. Morgan Middleton 166, votes. The officers who held the election made returns of the poll books and certified the result of the election to the Board of trustees of the Evarts graded common school district; three of whom duly convened at the office of the county court clerk of Harlan county, examined and compared the same, and issued certificates of election to Cawood and Wilson for the regular terms of three years each. At this meeting of the board of trustees there were present and participating in the performance of its official duties, Millard Kelly, Dan Kelly, and J. Morgan Middleton. In addition to discharging the duties imposed upon them by section 4465, Ky. Statutes, they proceeded to declared:

"That G.W. Middleton having heretofore been elected a member of the board of trustees of the Evarts graded school district and qualified as such and thereafter at the November election, 1929, was elected a member of the board of trustees of the town of Evarts, a civil office incompatible with the office of board of trustees for the Evarts graded school district, and thereafter said G.W. Middleton accepted said office of board of trustees of the town of Evarts and qualified as such and entered upon the discharge of his duties as such and thereby vacated the office of member of the board of trustees of the Evarts graded school district."

Following the making of a record of this declaration, a motion was made, seconded, and "unanimously carried" by which they declared a vacancy to exist in the office of the board of trustees of the Evarts graded school district on May 1, 1931, the date of the regular school election, and that J. Morgan Middleton having received the next highest vote cast at the election for school trustee, he was duly elected to fill the vacancy created by the acceptance by G.W. Middleton of the office of trustee of the city of Evarts. Following this, J. Morgan Middleton took the oath of office as trustee and began to engage in the official actions of the board of trustees and otherwise to discharge the duties of the office.

He filed the first entitled action on the 8th day of May, 1931, and procured a temporary order against G. W. Middleton restraining him from interfering with him (J. Morgan Middleton) in the discharge of his duties as a member of the board of trustees of the Evarts graded school district. On the 12th day of May, 1931, G.W. Middleton filed the second entitled action against J. Morgan Middleton, Millard Kelly, Dan Kelly, Joe Cawood, and Bob Wilson, as members of the board of trustees of the Evarts graded common school district. He set up his election and the election of his comembers of the board for a term of three years from the date of their respective elections, his qualifications, and acceptance of the office. He charged that J. Morgan Middleton was not a member of the board of trustees of the Evarts graded common school district; that at the election in May, 1931, there were two vacancies to be filled, and that Joe Cawood and Bob Wilson were candidates at that election and received the highest number of votes respectively, and were duly elected to fill those two vacancies; that J. Morgan Middleton was a candidate at that election for a full term of three years to fill one of the two vacancies, and that he was defeated by receiving a smaller number of votes than Cawood or Wilson. He sought an injunction against J. Morgan Middleton and other members of the board of trustees, enjoining J. Morgan Middleton from participating in the actions of the board of trustees, and against his codefendants restraining them from recognizing him (J. Morgan Middleton) as a member of the board of trustees. The respective motions of J. Morgan Middleton and G.W. Middleton came on for hearing before Judge D.C. Jones. By agreement the actions were consolidated, and it was agreed that they be heard and determined together. At the hearing the temporary restraining order that had been issued in the first entitled action was dissolved. In the second entitled action the court granted a temporary injunction "enjoining the defendant, J. Morgan Middleton from acting or attempting to act as a member of the board of trustees of the Evarts graded common school district and from interfering in any way with George W. Middleton in the discharge of his duties as trustee of the district until final judgment in the case." J. Morgan Middleton excepted to the rulings of the court in both cases, asked for and was granted 15 days in which to enter his motion before a judge of this court as provided by sections 296 and 297, Civil Code of Practice.

On the hearing before Judge Jones a stipulation of fact was entered into and filed. M.G. Smith was introduced as a witness, and certain exhibits were made a part of the record by his testimony. The record including the evidence read and heard on the trial, together with a copy of notice of this application in the two consolidated actions, are presented to me as a judge of the Court of Appeals for proper orders.

From a statement of the case it is shown that J. Morgan Middleton was present and participated with two of his fellow members of the board of trustees of the Evarts common school district in the declaring that G.W. Middleton had vacated his office by reason of his election, qualification, and acceptance of the office of member of the board of trustees of the city of Evarts and in declaring J. Morgan Middleton duly elected to fill that vacancy at the election held May 1, 1931. A copy of the petition signed by the legal voters of Evarts common school district, placing the name of J. Morgan Middleton as a candidate for the office of trustee of the Evarts graded common school district for the regular term expiring in 1934, is a part of the record. It shows that he was not a candidate, nor voted for as a candidate, to fill a vacancy created by G.W. Middleton accepting the office of trustee of the city. The three members of...