Sterritt v. McAdams

• Decision Date: 20 March 1896
• Citation: 99 Ky. 37
• Parties: Sterritt v. McAdams.
• Court: Kentucky Court of Appeals

99 Ky. 37

Sterritt v. McAdams.

Court of Appeals of Kentucky.

March 20, 1896.

APPEAL FROM HANCOCK CIRCUIT COURT.

SWEENEY, ELLIS & SWEENEY FOR APPELLANT.

GEO. W. JOLLY, W. S. MORRISON, E. C. VANCE, AND HORACE JOLLY FOR APPELLEE.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

In November, 1895, at a regular election, as provided by the Constitution, the appellee, Charles McAdams, was elected to fill the unexpired term of the office of circuit court clerk of Hancock county, made vacant by the death of R. L. Chambers who had been elected in November, 1892.

Chambers died on the 19th of November, 1894, leaving three years or more of the term of office to be filled. A part of the term was filled by an appointment by the circuit judge until the regular election, which took place in November, 1895. There were three candidates for the vacancy — Sterrett, the appellant, who had been appointed, Charles C. McAdams and John Owens — all of whom were voted for at the polls, McAdams receiving 767 votes; Will L. Sterrett, 632 votes; and John Owens 229 votes. The regularly constituted board canvassed the returns, and gave to the appellee, McAdams, a certificate of his election. He executed bond, took the oath of office, and demanded of the appellant, Sterrett, the custody of the books, records and papers of the office, and his demand was refused on the ground that no proclamation had been issued, or an election called by the circuit judge of that county to fill the vacancy. This is the only question involved on the appeal.

It appears that fully ninety per cent. of the voters cast their votes at the election, and that it was conducted in every respect as required by law, with the exception that no writ of election had been issued.

Section 1528 of the Kentucky Statutes provides that "a vacancy in the office of Commonwealth's attorney or circuit court clerk shall, in like manner, be temporarily filled for the same time by the circuit judge of the district, who shall also issue his writ of proclamation for an election to fill the remaining vacancies."

The circuit judge had the power to make the appointment, as is conceded, until the regular election in November, 1895, and his power of appointment then ceased, or the appointee's right to continue in office then ended; so if a failure to issue the writ of election renders the election void, there was no clerk for the county after November, 1895, or if the failure to call an election authorized the appointee...