Daugherty v. Arnold

110 Ky. 1 | Ky. Ct. App. | 1901

Opinion oe the coubt by

JUDGE GUFPY

Afeibmxng.

It is substantially alleged in the petition in this action that on the 8th of December, 1899, there was a vacancy in the office of justice of the peace for the Third District of Nelson county, caused by the death of AY. B. Nicholls, said Nicholls at the time of his death being a justice of the peace in said district; that on said date Gov. W. O. Bradley appointed and commissioned the appellee, Ed. H. Arnold, justice of the peace for said district. The jietition further shows that said Arnold was eligible to said office. It is further alleged that on the lGth of December, 1899, appellee took the oath of office required by tlie Constitution, and appeared before the appellant, Daugherty, judge1 of the Nelson County Court, and offered to execute his official bond, with good and solvent surety, but that appellant refused to permit him to execute the bond or to qualify as justice of the peace, and entered an order on the order book of the Nelson County Court showing the application of appellee, and the refusal of the appellant to accept the bond or permit the qualification. The plaintiff, Arnold, finally prayed' for a mandamus compelling the said1 county judge to- permit him to qualify as justice of the peace for said county. The material defense set up by the appellant is that on the 27th of November, 1899, in order to fill said vacan-cjq by an order entered upon the record books of his court he duly appointed one John Bell, who at the time possessed, the qualifications necessary to fill said office, which appointment was thereafter' duly certified to W. O. Bradley, Governor, of the Commonwealth, who by law is charged with the duty of issuing to said Bell a commission to fill said office, he being requested to do so, which order was received by the Governor not later than November 29, 1899; that said order of appointment of Bell has never been revoked or set aside; and that said Bell- has accepted said office in so far as he cam without being commissioned. After the issues were made up and proof taken, the circuit court rendered a judgment in favor of said Arnold, and awarded him a writ of mandamus against said Daugherty, commanding him to permit the plaintiff, Arnold, to qualify as justice of the' peace by taking the oath of office and executing a bond as required of him, with good and solvent surety, and commanding him to approve said bond and cause same to be noted on the order book of the Nelson County Court; and from that judgment this appeal is prosecuted.

There is no brief for appellant on file. But, from the answer, we presume that the appellant claimed that no person could be legally appointed to fill the vacancy referred to without first having been appointed by the appellant as county judge, and therefore the appointment and commission relied on by the plaintiff conferred no right upon him. It is provided in section 152 of the Constitution that “vacancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law.’’ Section 7, art. 7, p. 14.G, Acts 1891-98, provides that a vacancy in the office of justice of the peace shall be filled by appointment of the countjr court temporarily until the successor shall have been elected as provided in section 2 of this,article. This act seems'to have been approved June 30, 1892. It further appears that by an act approved February 10, 1894 (Acts 1894, p. 11), the Legislature amended Acts 1891-93, and required the Governor to issue commissions to various officers, including justices of the. peace; and in said act it is provided as follows: “Should a vacancy ocgui- in any of said offices by reason of the death, resignation or removal of the officer, or from any other cause; or should a like vacancy occur in any other office where there is no provision of law for filling the same, such vacancy shall be filled by appointment of the Governor, subject to the provisions of the Constitution applicable thereto.” It necessarily follows that the act, supra, repeals all preceding acts' inconsistent therewith. It therefore follows that the judgment appealed from was .proper and in accordance with the law in force at the time, and the same is affirmed.