Pinson v. Morrow
| Decision Date | 15 October 1920 |
| Parties | PINSON v. MORROW, GOVERNOR, ETC. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Franklin County.
Action by George Pinson, Jr., against Edwin P. Morrow, Governor etc. From a judgment for defendant, plaintiff appeals. Affirmed.
Willis Staton, E. D. Stephenson, and Hobson & Hobson, all of Pikeville, for appellant.
Chas I. Dawson, Atty. Gen., J. W. Jeffers, of Frankfort, and J. J Moore, of Pikeville, for appellee.
This is a controversy over the office of police judge of Pikeville, a city of the fourth class.
There is no dispute about the facts. At the November election, 1917, Sydney Trivette was elected police judge for a term of four years, beginning on the first Monday in January, 1918. In August, 1918, Trivette resigned, and W. W. Reynolds was appointed by the council to fill the vacancy. At the November election, 1919, George W. Pinson, Jr., became a candidate before the people for the office of police judge, to fill what he thought was the vacancy caused by the resignation of Trivette, and received a majority of the votes. After that election, and before the council then elected had qualified, Reynolds resigned as police judge, and on the same day the outgoing council passed an ordinance or resolution, appointing him police judge for the remaining term of Trivette, which would expire on the first Monday in January, 1922.
When the new council elected in November, 1919, came into office, it appointed Pinson in December, 1919, to fill the vacancy for the remainder of Trivette's term. The Governor of the state issued a commission to Reynolds as police judge, and Pinson brought this suit to obtain a commission and for possession of the office. The circuit court decided in favor of Reynolds, and Pinson appeals.
Pinson claims the office under his election by the people in November, 1919, and also his appointment in December, 1919, by the council that was elected in November, 1919, and took office a few days later, while Reynolds claims the office by virtue of his appointment in November by the old or outgoing council after the November election, 1919, but before the new council went into office.
The correctness of the decision of the lower court depends on the solution of three questions raised by counsel for Pinson, but before stating these questions reference to the Constitution, the statute, and the proceedings of the council should be made. The Constitution provides in section 160 that "a mayor or chief executive and police judges of the towns of the fourth, fifth and sixth classes may be appointed or elected as provided by law."
Section 3510 of the Kentucky Statutes provides, in part, that a judge of the police court "shall be elected by the people at the general election in November, or appointed by the board of council, as the board may determine by ordinance, enacted at least sixty days previous to any election, in November, and who shall hold his office for the term of four years.
It will be observed that when Trivette was elected police judge in November, 1917, for a term of four years, his election was by the people, because at that time the council had not by ordinance provided that the police judge should be appointed by the council, but in March, 1919, the council adopted an ordinance, providing that the police judge and other city officers should be appointed by the council to hold their terms of office as provided by law, and repealed the ordinance previously passed, providing that a police judge and other officers should be elected by the people.
The council was composed of six members, and when this ordinance of March, 1919, was adopted it appears that there was present and voting only three members of the council, all of whom voted for the ordinance. The mayor was also present, but did not vote, although he approved the ordinance. It was pursuant to this ordinance that the old council on November 12, 1919, appointed Reynolds police judge to fill the vacancy in the office caused by the resignation of Trivette, for the remainder of his term, which expired in January, 1922.
After the new council went into office, and in December, 1919, it enacted an ordinance, setting aside and holding for naught the ordinance adopted on November 12, 1919, by the old council, appointing Reynolds police judge, and proceeded to and did enact an ordinance appointing Pinson police judge, in his place, to fill out the remainder of the term of Trivette.
On this appeal it is contended: First, that the amendatory statute...
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... ... member of a body and has already voted as such. But such ... power may be expressly given by statute or a rule. Pinson ... v. Morrow, 189 Ky. 291, 224 S.W. 879; Cf. Hill v ... Taylor, 264 Ky. 708, 95 S.W.2d 566. Be that as it may, ... in this case we are sure that ... ...
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