Poyntz v. Shackelford

• Decision Date: 16 January 1900
• Citation: 107 Ky. 546,54 S.W. 855
• Parties: POYNTZ et al. v. SHACKELFORD et al. [1]
• Court: Kentucky Court of Appeals

54 S.W. 855

107 Ky. 546

POYNTZ et al. v. SHACKELFORD et al. ^[1]

Court of Appeals of Kentucky.

January 16, 1900

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by C. B. Poyntz and others against Sam J. Shackelford and others to enjoin defendants from interfering with plaintiffs in the discharge of their duties as election commissioners. Judgment dissolving injunction, and the plaintiffs apply for a reinstatement thereof. Injunction reinstated.

Lewis McQuown, J. K. Hendrick, W. S. Pryor, Zach & Phelps, Aaron Kohn, and J. A. Scott, for appellants.

W. O Bradley, W. H. Yost, and T. L. Edelen, for appellees.

HAZELRIGG C.J.

By averments to the effect that they were the rightful board of election commissioners, selected and appointed in pursuance of the provisions of the present election law (section 1596a Ky. St.), and that the defendant Shackelford, clerk, was about to qualify his co-defendants, Mackoy and Cochran, as members of that board, and the latter were about to enter upon the discharge of their alleged duties as such members and thus interfere with the rightful possession of the office and discharge of its duties by them, the plaintiffs sought to enjoin the defendants from such alleged interference, and to that end, after notice, applied to the judge of the Fourteenth judicial district for an order of injunction of the character indicated. The chancellor, upon hearing, granted the injunction; but in the same order, and to the end, as held by him, that an application might, in view of the grave matters involved, be had at once to a judge or judges of the court of appeals for a reinstatement of the injunction, dissolved it, with leave to apply for its reinstatement as is provided by law. Hence this application to this court for reinstatement. The plaintiff Poyntz is a member of the state board by election or selection of the general assembly. His associate plaintiffs, Fulton and Yonts, were appointed such members by him upon the retirement of the two members (Pryor and Ellis) who had originally been members of the board. It is agreed that the vacancies on the board created by the retirement of Pryor and Ellis were filled by Poyntz in accordance with the requirements of the election law. The defendants Mackoy and Cochran are the appointees of the governor on said board, and are entitled to their respective offices, as they claim, in virtue of that appointment. The clerk, Shackelford, is a nominal party merely.

Aside from some preliminary questions to be considered later on, the vital matter in dispute is, has the governor, under the constitution and the law, the right to appoint to membership on the state board, or did that right devolve on Poyntz, the remaining member, in pursuance to the provisions of the statute? The competency of the legislature to create the election board, and elect its members, admittedly is settled in the Purnell v. Mann Case (Ky.) 48 S.W. 407, where the constitutionality of the act conferring such power on that body was carefully considered and upheld. When the force of this adjudication is considered, it can hardly be argued seriously that the legislature is lacking in power to provide how vacancies in their creature, the board, may be filled. Legislative competency to create the board and fill it implies legislative competency to provide how vacancies on the board may be filled. But, while such power may exist in the abstract, the right to fill such vacancies may be denied to the legislature because of some provision of the organic law conferring that right elsewhere; and that such right has been vested by the constitution on the governor exclusively is the contention of the defendants.

The right of the governor to fill the vacancies is sought to be upheld by reference to section 152 of the constitution, which is as follows:

"Sec. 152. 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 vacancy 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 annual 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 filled by appointment of the governor; all other appointments shall be made as may be prescribed by law. No person shall ever be appointed a member of the general assembly, but vacancies therein may be filled at a special election, in such manner as may be provided by law."

We think the meaning of this section is quite plain. Whenever a vacancy occurs in an elective office, it is to be filled by appointment. If the unexpired term ends "at the next succeeding annual election at which either city, town, county, district or state officers are to be elected," the appointment will last for the remainder of the term. If the unexpired term does not so end, and three months intervene from the time the vacancy occurs until the succeeding annual election of the description named, then the vacant office is to be filled by appointment until the said succeeding annual election. But, if three months do not so intervene, the office is to be filled by appointment until the second succeeding annual election of the description named, and then the office is to be filled by an election of the people for the remainder, if there be any remainder, of the term.

But it will be seen at once that, so far, the very purpose announced at the threshold of the section, of telling us the method of filling "vacancies in all elective offices," remains unfulfilled in a most important particular. It is true, we have been told, as already said, that, in all cases of vacancies, appointments shall be made filling them, and we have been told how long such appointments shall last. But the question who shall make these appointments for filling these elective offices when vacancies occur remains wholly unanswered. The section then naturally proceeds to complete its mission. And we learn that vacancies in all offices for the state at large, or for districts larger than a county shall be filled by appointment of the governor, and that all other appointments shall be made as may be prescribed by law. The first sentence of the section declares the purpose of the section to be to provide for the filling of vacancies in all elective offices, and that this was to be done by election and appointment. We are then told when elections may be held to fill these vacancies, and to what time appointments will run; and in the last clause we are told by whom these appointments are to be made. The first clauses tell us how long the appointees hold; the second clauses, by whom the appointments are made. This plain and natural meaning of the section was recognized,--indeed, announced,--in unequivocal terms by this court in the case of Shelley v. McCullough, 97 Ky. 164, 30 S.W. 193. In that case we had under consideration sections 152 and 160 of the constitution particularly as affecting the filling of vacancies of city offices. It was contended by counsel that section 160 conferred on the general assembly plenary power to provide how vacancies in town and city offices, whether elective or appointive, may be filled. We held, however, that it was the intention by this section (160) "to confer on the general assembly simply the power to provide how the vacancies in these offices may be temporarily filled, and also by whom they may be filled"; and we further said: "So we find in section 152 this language: 'Vacancies in all offices for the state at large or for districts larger than a county, shall be filled by appointment of the governor.' This language imports on its face the power of the chief executive to fill vacancies in offices for the unexpired terms thereof, which we know he may fill only temporarily, and until the next succeeding annual election after the happening of the vacancy. The power given is not to 'fill the vacancy,' in the ordinary acceptation of the words, but to fill only the appointive part thereof." Proceeding further we said: "By placing the sections in juxtaposition, this construction becomes apparent: 'Sec. 152. *** Vacancies in all offices for the state at large or for districts larger than a county shall be filled by appointment of the governor.' 'Sec. 160. *** The general assembly shall prescribe the qualifications of all officers of towns and cities, *** and how vacancies in such offices may be filled.' Both of these provisions apply only to the filling of the appointive part of the vacancy." And again we said: "As we have seen, section 152 applies alone to elective offices, and the words 'all other appointments' mean all other appointments to fill...