Schardein v. Harrison

Decision Date07 June 1929
Citation230 Ky. 1,18 S.W.2d 316
PartiesSCHARDEIN v. HARRISON et al.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Suit by George W. Schardein against William B. Harrison and others. From an adverse judgment, plaintiff appeals. Affirmed.

Grover G. Sales and Wm. F. Clarke, Jr., both of Louisville, for appellant.

Alfred Selligman, Charles G. Middleton, Howard B. Lee, and Harris W Coleman, all of Louisville, for appellees.

Allen Prewitt, of Frankfort, and Dodd & Dodd, of Louisville, amici curiæ.

McCANDLESS C.J.

At the regular November, 1925, municipal election, Arthur A. Will was awarded the certificate of election as mayor of Louisville. A contest ensued and that election was declared void and the office of mayor adjudged to be vacant. See Taylor v. Nuetzel, 220 Ky. 510, 295 S.W. 873. In June, 1927, Joseph T. O'Neal was appointed to fill the vacancy in the office of mayor, and as such appointee held that office until November, 1927, at which time William B Harrison was elected to fill the vacancy for the remainder of the term. Harrison is now a candidate for the Republican nomination for the same office in the 1929 primary. Claiming that under the provisions of section 160 of the Constitution Harrison is ineligible to succeed himself as mayor (though it is conceded that he is in every other way qualified) plaintiff, a Republican voter and taxpayer in the city of Louisville, filed this action under the Declaratory Judgment Act to prevent Harrison's name from being placed upon the ballot as such candidate in the primary. Both judges of the Chancery division of the Jefferson circuit court heard the case and concurred in an opinion delivered by Chancellor Barrett in which he denied the relief sought and dismissed the petition. Plaintiff appeals.

A preliminary question is raised as to appellant's right to maintain this appeal, but it is without merit. True, actions upon the part of candidates relating to the preparation of ballots in primary elections are restricted to the circuit court, which in relation thereto is made the court of last resort. See section 1550-27, Ky. Statutes. But the provisions of that section do not abridge the right of voters and taxpayers to maintain such actions. See Hager v. Robinson, 154 Ky. 495, 157 S.W. 1138. A right that has since been enlarged under the comprehensive provisions of the Declaratory Judgment Act, section 639a of the Civil Code.

The sole question is as to the proper construction of section 160 of the Constitution, which, so far as applicable, reads:

"The terms of office of Mayors * * * shall be four years, and until their successors shall be qualified. * * *

No mayor * * * of any city of the first * * * class, after the expiration of the term of office to which he has been elected under this constitution, shall be eligible for the succeeding term."

By the provisions of section 167 of the Constitution, the first election for mayor under the new Constitution was held at the regular November, 1893, election and chronologically the November, 1925, election was the date for electing a mayor for the full term, and the inquiry is: When Harrison was elected in November, 1927, to fill the vacancy in the mayor's office, was this an " election to the (a) term" within the meaning of the law?

1. Does the word "term" mean four years, or does it mean any other period of time for which one may be elected and hold the office? Differently stated, is the "term" which disqualifies a fixed and certain period, specified and designated in the Constitution, or is it an uncertain and movable period? The answer is found in the first paragraph quoted supra, "The term of office of mayor shall be four years." "Term" is thus identified and defined as a certain and fixed period of four years. It commences when the mayor is elected and inducted into office, and ends at the end of the four years for which he was elected. One or several persons may discharge the duties of the office during this period, but the term is not divided into smaller terms by the number of persons who may fill the office. It remains one and indivisible, and term follows term in successive cycles of four years each. Nor does it die with the incumbent. On the contrary, if the incumbent or the one elected to the office should resign, refuse to qualify, or be impeached or removed from office, the term would remain unbroken until the recurring election for that office. When so considered, the words, "No mayor, after the expiration of the term of office to which he has been elected * * * shall be eligible for the succeeding term," evidently refer to a term of four years, and mean that a mayor who is elected to a full term may not be re-elected within eight years.

In this respect it will be observed that aside from a reference in section 161 to be presently noticed, no mention is made of the "term" of mayor in any other part of the Constitution. Provision is made for filling vacancies in all elective offices, save those of Governor, Lieutenant Governor, and Members of the General Assembly in section 152. The words "vacancy" "unexpired term," and "part of term" are used repeatedly in that section. But nowhere does the word "term" appear without qualification. It provides: " 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 [such described election], * * * 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 the vacancy and the character of election named supra, the office is to be filled by appointment until the second succeeding election of that character, 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." (Our italics.) This section demonstrates that the members of the convention had in mind a distinction between "a term of office" and "a part of a term" and understood how to use words to express this distinction. And the meticulous care they exercised in qualifying the word "term" wherever used therein indicates that they understood the word "term" to mean a full term of four years. It is also a significant fact that, though that section deals fully with the subject of elections to fill vacancies, it nowhere suggests that a person filling a vacancy is ineligible to succeed himself. The same thought was carried into other provisions of the Constitution, thus:

Section 70 provides that the Governor "shall be elected for a term of four years." Section 71 provides, "He shall be ineligible for the succeeding four years after the expiration of the term for which he shall have been elected." Sections 82 and 83, relating to Lieutenant Governor, are similar. Sections 84 and 85 take care of vacancies in the office of Governor. It being specifically provided in section 85, "Whenever a vacancy shall occur in the office of governor before the first two years of the term shall have expired, a new election for governor shall take place to fill such vacancy." Also as to other state officers section 91 provides for " a term of four years," and section 93 provides that these officers shall be ineligible for re-election 'for the succeeding four years after the expiration of the term for which they shall have been elected.'

The exact question here involved has not been passed upon by this court. But similar words appearing in other provisions of the Constitution have been considered, and the above definition of the word "term" adopted, though in some situations the application given it is not in entire harmony with the views above expressed. Thus, section 235 of the Constitution provides, "The salaries of public officers shall not be changed during the terms for which they were elected," and a similar provision in reference to city, county, town, and municipal officers is found in section 161 of the Constitution.

In Bosworth v. Ellison, 148 Ky. 708, 147 S.W. 400, it appeared that one Morgan was elected jailer in 1909. The compensation of the office was increased by an act effective June, 1911. Afterwards Morgan resigned as jailer and Ellison was appointed to fill the vacancy. Ellison asserted a right to the increased compensation, on the theory that the increase was made during Morgan's term and before his incumbency began, and that therefore the compensation was not changed during his (Ellison's) term of office, nor the increase interdicted by section 161 of the Constitution. As to this the court said: "* * * It was manifestly the intention of these sections that all persons holding offices of the same character and class should receive during the terms for which they were elected uniform compensation or salary, whichever it might be. We think the words 'during his term of office' in section 161 should be given the same meaning as the words 'during the term for which they were elected' in section 235, and that the compensation mentioned in section 161 as well as the salary mentioned in section 235 refers to the full term of the office and not to the person who may be filling the office. * * * Ellison was appointed to fill out a part of Morgan's unexpired term. He had no term of office apart from the term of Morgan. He was merely occupying the place that Morgan under his election would have filled except for his...

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22 cases
  • Fletcher v. Wilson
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 1, 1973
    ...v. Ray (1913), 154 Ky. 509, 157 S.W. 1147, the court made the same holding as in Hager. Sixteen years later, in Schardein v. Harrison (1929) 230 Ky. 1, 18 S.W.2d 316, a voter brought a suit under the Declaratory Judgment Act to prevent the placing on the primary election ballot of the name ......
  • Kotila v. Commonwealth of Kentucky, 2000-SC-0341-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 12, 2003
    ..."proximate cause" and "such language indicates that `the sole' rather than `a contributing' cause was meant."); Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316, 319 (1929) ("[I]f the makers of the Constitution had intended to qualify the word `office' [in Ky. Const. § 161] they would have i......
  • Herold v. Talbott
    • United States
    • Kentucky Court of Appeals
    • June 21, 1935
    ...Board of Education of Louisville v. Sea, 167 Ky. 772, 181 S.W. 670; Hazelrigg v. Hazelrigg, 169 Ky. 345, 183 S.W. 933; Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316. The of 1893 was the first act of the Legislature, following the adoption of section 106, dealing with the regulation of sal......
  • Herold v. Talbott, Auditor
    • United States
    • United States State Supreme Court — District of Kentucky
    • December 20, 1935
    ...Board of Education of Louisville v. Sea, 167 Ky. 772, 181 S.W. 670; Hazelrigg v. Hazelrigg, 169 Ky. 345, 183 S.W. 933; Schardein v. Harrison, 230 Ky. 1, 18 S.W. (2d) 316. The act of 1893 was the first act of the Legislature, following the adoption of section 106, dealing with the regulation......
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