Whitt v. Wilson

• Citation: 212 Ky. 281
• Parties: Whitt, et al. v. Wilson, et al.
• Decision Date: 18 December 1925
• Court: United States State Supreme Court (Kentucky)

212 Ky. 281

Whitt, et al. v. Wilson, et al.

Court of Appeals of Kentucky.

Decided December 18, 1925.

Municipal Corporations — Act Reclassifying Cities Held Inapplicable to Members of Board of Education. — In view of Constitution, section 183, Act of General Assembly approved March 22, 1924 (Laws 1924, chapter 82), reclassifying cities of the state and providing that officers holding offices in cities changed from a class other than they were at time such officers were elected will hold their office until the term for which they were elected expired or until their successor qualified, applies only to city or municipal officers and is inapplicable to members of boards of education of

city of Ashland elected under Kentucky Statutes, section 3235a-10, public schools of which city are governed by its charter, subdivision 9, and Kentucky Statutes, sections 3462-3480.

Appeal from Boyd Circuit Court.

DYSARD & MILLER for appellants.

S.S. WILLIS and FRANK C. MALIN for appellees.

OPINION OF THE COURT BY JUDGE SETTLE.

Affirming.

By an act of the General Assembly, approved March 22, 1924, reclassifying cities of the state, Ashland, theretofore, a city of the third class, was transferred to and made a city of the second class. The act referred to contains the following provision:

"All officers now holding office in any of the cities changed from a class other than they were at the time such officers were elected, will hold their office until the term for which they were elected has expired and until their successor has been elected and qualified."

Prior to the passage of the act, supra, the public schools of Ashland, as in other cities of the third class, to which it then belonged, were governed by subdivision 9 of its charter, consisting of sections 3462 to 3480, inclusive, Kentucky Statutes, section 2462, providing for a board of education of nine members, five of whom held office for four years and four for two years. It being a requirement of section 3462 that the board of education in cities of the third class should be elected in the odd years, these nine members of the board of education were elected in 1921, and as the terms of office of four members of the board were by the statute required to end with the close of the year 1923, at the November election, 1923, four persons were elected members thereof for a term of four years each, to complete its required membership of nine; the new terms to begin on the first Monday in January, 1924, at which time the four elected in November, 1923, were inducted into office and began the performance of their duties as members of the board of education of Ashland, then still a city of the third class.

The appellants, W.B. Whitt and John F. Haney, plaintiffs in the court below, and the appellees, John W. Woods and W.M. Gambill, two of the defendants in the court below, were the four persons elected members of the Ashland board of education at the November election, 1923. The legislative act by which Ashland was made a city of the second class contained an emergency clause and went into effect March 22, 1924; and thereafter during the same year, within the time and in the manner required by section 3235a-10, Kentucky Statutes, the names of the appellees, B.S. Wilson, D.H. Wade, W. L. Gambill, Charles Russell and John W. Woods, by virtue of a petition signed by more than one hundred citizens and legal voters of the city of Ashland, were placed upon the ballots as candidates for membership on the board of education of that city, to be voted for at the November election, 1924, which was duly called and held for that purpose, and at which election each of them received a majority of the votes cast and was by the board of election commissioners awarded a certificate declaring him elected a member of the board of education of the city of Ashland.

Section 3235a-1, Kentucky Statutes, provides for the creation of a board of education in each city of the second class composed of five members, and confers upon such board certain corporate functions and powers, and sub-section 10 thereof provides the qualifications of its members and the time and manner of their election.

The appellees assumed their offices on the first Monday in January, 1925, as provided by the statute, supra, and entered upon the discharge of their duties as the members constituting the board of education of the city of Ashland. Shortly thereafter this action was brought by the appellants, attacking the validity of the election by which the appellees claim to be and are assuming to act as members of the board of education of the city of Ashland, and, asserting their own alleged right to membership on the board and to participate in its meetings and the performance of its duties, until the four year term for which they were each elected a member thereof in November, 1923, shall have expired. By the prayer of the petition the court was asked to adjudge them entitled to continue as members of the Ashland board of education until the end of the year 1927, and that the appellees be enjoined from interfering...