Tillman v. Otter

• Decision Date: 07 January 1893
• Parties: Tillman v. Otter.
• Court: Kentucky Court of Appeals

20 S.W. 1036

93 Ky. 600

Tillman v. Otter.

Court of Appeals of Kentucky.

January 7, 1893

Appeal from Louisville law and equity court.

"Not to be officially reported."

Proceeding by John J. Otter to oust William Tillman from the office of sinking fund commissioner for the city of Louisville. From a judgment for plaintiff, defendant appeals. Affirmed.

Pryor J.

The controversy in this case is over the office of a commissioner of the sinking fund of the city of Louisville. The plaintiff John J. Otter, who is the appellee in this court, claims to have derived title to the office by an election held by the general council of the city on the 25th of October, 1889, and the defendant, William Tillman, claims his title under an election by the commissioners of the sinking fund on the 12th of November following. The provision of the act in relation to the sinking fund, authorizing the election, reads as follows: "The general council shall, in the month of October in each year, elect a commissioner of the sinking fund to fill the place of the commissioner whose term of service expires that year. In the event the council fail to elect in that month, then the election shall be made by the commissioners themselves. If a commissioner shall die resign, or from any other cause there shall be a vacancy in the office of the commissioners of the sinking fund, the same shall be filled by the board of commissioners of the sinking fund at a regular meeting of said board." The mayor and the president of the board of aldermen are ex officio members, and three others, to be elected by the general council, one in each year, constitute the board being five in all. On November 12, 1889, W. R. Ray, president of the board, Charles D. Jacob, mayor, and George M. Griffith, president of the board of aldermen, elected the defendant, Tillman, as his own successor, and ignored the action of the general council electing Otter to that office on the preceding 25th of October.

A question has been raised as to the burden of proof, and, without discussing the sufficiency of the answer, it is sufficient to say that as the plaintiff, Otter, was asserting his title to the office, it was incumbent on him to make out his case, as it is well settled that such a proceeding is like the enforcement of any other private right, when prosecuted by or in the name of the party claiming to have been injured; but when in the name of the commonwealth, alleging the usurpation of an office by one of its citizens, the burden is on the defendant to show by what authority he holds it. State v. Harris, 3 Ark. 570; People v. Utica Ins. Co., 15 Johns. 358; Miller v. English, 21 N. J. Law, 317. In this case Tillman had been in possession of the office, and was again chosen by a board empowered upon a certain contingency to make the selection, and the burden was clearly on the plaintiff, Otter, to establish title in himself, although Tillman may have had no right to the office, and it also follows that, if the power of choosing a commissioner by this board was in violation of the constitution, -a question not necessary to be decided, -still the plaintiff must make out his case, as he has no right to appear for the state, and by an action in his own name show that some one is holding an office to which he is not entitled, when he (the plaintiff) has no claim to it himself.

Was the plaintiff, Otter, elected by the general council on the 25th of October, 1889? is the sole question in this case; and, if he was, then the judgment below should be affirmed. The board...