Town of Nortonville v. Woodward

• Decision Date: 31 May 1921
• Citation: 231 S.W. 224,191 Ky. 730
• Parties: TOWN OF NORTONVILLE v. WOODWARD.
• Court: Kentucky Court of Appeals

231 S.W. 224

191 Ky. 730

TOWN OF NORTONVILLE v. WOODWARD.

Court of Appeals of Kentucky.

May 31, 1921

Appeal from Circuit Court, Hopkins County.

Action by S. L. Woodward against the town of Nortonville. Judgment for plaintiff, and defendant appeals. Affirmed.

J. A Jonson, of Madisonville, for appellant.

Letcher R. Fox and Laffoon & Waddill, all of Madisonville, for appellee.

SAMPSON J.

The appellant town of Nortonville is and was at all the times herein mentioned a town of the sixth class. In January, 1910 there was a vacancy in the office of marshal of the said town, and the new city council, on coming into office undertook, on January 3d, to fill it by appointing or electing appellee, S. L. Woodward, to said office. Its first regular meeting on the night of Monday, January 3d, was for the purpose of organization and election of a chairman and other officials of the board, and a marshal. By statute such meetings are fixed on the first Monday in January. The following is a copy of the minutes of that meeting:

"First called meeting of the new board of trustees of Nortonville, Ky. January 3, 1910. Purpose of meeting was to qualify as councilmen for town and to elect chairman, marshal, clerk, and treasurer for same.

All the board members for 1910 were present and were qualified by Judge J. R. Harrison as councilmen for town. House was now declared ready for applications for marshal. Mr. S. L. Woodward and Mr. T. W. Wiggins made. After hearing applications heard by the clerk, a ballot was made and a vote taken by secret ballot and counted by the chairman and clerk, which showed two votes for S. L. Woodward and two votes for T. W. Wiggins. Chairman J. W. Gatlin cast his vote for S. L. Woodward, which untied the vote and elected S. L. Woodward marshal for the town of Nortonville, Ky.

Motion duly made and seconded to adjourn to meet January 5, 1910, for further business.

J. W. Gatlin, Chm.

C. M. Oates, Clerk."

Although the minutes of the meeting denominate it the "first called meeting," it was, in fact, the regular meeting of the board of council, and of this fact the court takes judicial notice. At such meeting the council had the right to fill a vacancy in the office of marshal. This was an appointment, not an election, within the meaning of our Constitution and statutes, and the mere fact that members of the council, in ascertaining the choice of that body for marshal, took a secret ballot did not in any way invalidate the appointment of Woodward.

That part of our Constitution reading, "In all elections by persons in a representative capacity, the voting shall be viva voce, and made a matter of record," has no application to the facts of this case, because the marshal was not, in the constitutional sense, elected, but only appointed, the statute so designating the act of filling such vacancy.

Another meeting of the council was had on January 5th, but, as Woodward was not ready to execute bond, it was adjourned until the 18th, at which time the council again met, and the marshal's bond was executed and approved by the council. At this meeting the minutes of the regular meeting were read and approved.

Woodward insists that, when he was installed as marshal on the 18th of January, the date of the execution and approval of the bond, he was a de jure, not a de facto officer, and entitled to the regular fixed compensation and emoluments of the office. The city insists that it entered into a verbal agreement and contract with Woodward before his election, by which he was to accept the office of marshal and perform all the duties thereof for a salary of $25 per month and the fees, and a per cent. of the taxes, and to prove this it called several of its ex-officials who participated in the election of Woodward as witnesses, and also introduced a number of reports and claims made out by Woodward against the city in which his salary was fixed at $25 for a part of the time, at $35 for a part of the time, and at $45 for the balance of the time.

This litigation was commenced in 1917 by Woodward, against the city, to recover $1,548, with interest,...