95 Ky. 330 | Ky. Ct. App. | 1894
DELIVERED THE OPINION OF TIIE COURT.
Appellant brought this action to recover possession of the office of “ foreman of street repairs and overseer of the poor,” in the City of Newport, alleged to have been usurped and then illegally held by appellee. And this is an appeal from a judgment sustaining general demurrer to'the petition, and dismissing the action.
1. It ivas not, as argued by counsel, necessary to set forth the entire ordinance of the Board of Councilmen creating the office in question, but to state, substantially, only so much thereof as is necessary to show 'prima fade his title and right to recover. It is alleged that in 1888 an ordi
2. It is contended the Board of Oouncilmen had no' authority to create the office in question, because it is not mentioned or provided for in the following section of the 'charter: ^ The legislative, executive and ministerial power of said city shall be vested in a Mayor and a Board of Oouncilmen, consisting of two members from each ward, a Oity Clerk, Treasurer, Attorney, Engineer, Marshal, Physician, Assessor, Market Master, Weigher and Measurer, Wharf Master and Jailer, and such necessary deputies or assistants as may be required; each to possess the qualifications and serve for the terms hereinafter prescribed.”
3. It does not seem to us to have been necessary for appellant to allege in terms he was eligible to the place, for it was not the duty of the Board of Councilmen to prescribe in terms any specific conditions or qualifications for such an office, and consequently the election of appellant, which he alleges took .place duly and regularly, is conclusive in this case of his eligibility.
4. It is alleged a quorum of the Board of Councilmen was present when appellant was elected to the office, and he received a majority of the votes, which was, we think,
In our opinion all facts necessary to constitute a cause of action in favor of appellant against appellee were stated in the petition, and it was error to sustain the general demurrer.
'Wherefore the judgment is reversed and cause remanded for proceedings consistent with this opinion.