132 Ky. 54 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
Appellant was elected treasurer of tire city of Paducah', a city of the second class, at the regular election November, 1903, for the term of four years;, his term expiring January, 1908. He qualified and served the term. At the November election, 1907, he was again elected for another term of four years beginning January, 1908. Conceiving that he was ineligible for re-election, the authorities called an election to fill the vacancy in the office at the No
Appellant contends that he was not ineligible because the office of treasurer of a city of the second class is not one filled by “election under this Constitution.” Section 160, supra, meant to disqualify two of the municipal officers of first and second class cities for re-election. One was the chief executive by whatever name he might be called, the other was the “fiscal officer,” by whatever name he might be called. That no doubt might arise as to what that term included the section excludes from its meaning assessing and auditing officers, and specifically, by elimination of all others, confines it to such officers only as collect or hold the public money. The namq of the officer was not given because the Legislature or the municipal board might confer upon some other office than treasurer by name the duty of collecting and holding the public money. It was intended to disqualify the person who discharges those functions, so he was described instead of named. A fiscal officer is one who officially is the custodian of the public treasure. Unless the words of the section apply to a city treasurer who collects and holds the public
But appellant’s main contention is that the city treasurer is an officer created not by the- Constitution, but by statute, and that it is only such fiscal ■officers as are “elected under this Constitution” that are ineligible for reelection; it being argued that, unless the office i's created by the Constitution, an election to fill it is not an election to an office under the Constitution. The section does not nor does any other provision of the Constitution create any municipal fiscal office. If appellant’s argument is sound, it would follow that the provision of section 160, disqualifying fiscal officers of cities of the first and second classes for re-election would fail of application in any state of. case. Such a construction cannot be favored. The Constitution was intended to be applied to actual conditions. If the words “elected under this Constitution” be left out of view for the moment, it would be perfectly clear that the disqualification applied to all fiscal officers of the first and second class cities, whether such officers were created by the Constitution or by statute. Looking to the purpose of the convention in adopting that provision, we know it was to prevent those public servants who were, custodians of the public money from continuing so long in office as to make it pos
Getting away from the main question, appellant contends that the case was not practiced right. Appellee’s petition to recover the office from appellant sets out the former’s election at the regular November election, 1908, and avers'that he took the oath of office and executed the bond required by law before the city clerk of Paducah, and that the bond was approved. He did not allege facts showing his eligibility to the office. A statute requires that one to be eligible to the office of city treasurer of a city of the second class must be at least 25 years of age, and a resident of the city for three years next preceding the election. Section 3131, Ky. St. One who sues to recover a public office must show title in himself, lie having the burden of proving every fact essential to show that he has the title. Tillman v. Otter, 93 Ky. 604, 20 S. W. 1036, 14 Ky. Law Rep. 586, 29 L. R. A. 110; Elliott v. Burke, 113 Ky. 483, 68 S. W. 445, 24 Ky. Law Rep. 292; Toney v. Harris, 85 Ky. 464, 3 S. W. 614, 9 Ky. Law Rep. 36. He must recover upon the strength of his own title, not upon the weakness of his adversary’s. Nor does the possession of a certificate of election raise any presumption of the eligibility of the person to whom issued. Hoglan v. Carpenter, 4 Bush, 91. The canvassing board merely tabulates and certifies the returns of the election. They neither can nor assume to pass upon the question of the eligibility of the person voted for. .The officer whose duty it is to administer the oath! of office and to accept the official bond has not the jurisdiction to inquire into the eligibility of the person presenting himself for qualification. He must
Appellee’s petition did not allege that he was eligible to the office, nor did it allege facts showing that he was eligible. Eligibility is a condition precedent to the right of any one to a public office. Before he can recover it from even a usurper, he must show that he himself is rightfully entitled to it. To show that fact, two things must concur: One, that he is eligible; second, that he has been elected. One is as essential as the other. If he is not eligible, he is not entitled to the office, even though elected; or, if eligible, he is not entitled unless elected. Lacking either, he would himself be a usurper if he were inducted into the office. The law will not lend its aid to one usurper to oust another. Appellee suggests in argument that' the burden is on the defendant to show the ineligibility of the plaintiff; that one who is a lunatic or an alien, or who has been convicted of a felony, or disfranchised by the judgment of a court, cannot hold a public office; and that all these are matters of defense. The law presumes all persons sane. Hence the one who claims the contrary has the burden of showing it. If one shows he is a citizen of a town, of 25 years of age, he necessarily shows he is not an alien. The disqualification of conviction for felony, or disfranchisement, • or having done any act vacating the office, such as engaging in a duel, are matters of
Appellee qualified by executing the bond required of the city treasurer, before the city clerk. The city clerk is a ministerial officer with the limited powers and duties conferred by statute. Sections 3133-3136, Ky. St. We do not find it in any statute when it is made his duty to approve the bond of the city treasurer. In section 3136, Ky. St., dealing with the duties of the clerk, this is stated: “He shall register and preserve in his ■ office all contracts, bonds, oaths or affirmations taken or given by city officers or employes, and may administer such oaths and affirmations.” The bond required of the city treasurer must be in the penal sum and with surety worth $20,000. The approval of such a bond is not a perfunctory matter, nor a clerical duty. It is executive, and of great importance, as great as it is to have it executed at all. Among the duties of the mayor we find this: section 3112, Ky. St.: “He shall see that every officer who is required to give bond has duly given said bond and qualified before he enters upon the duties of liis office. If the mayor permit any officer to be without
As the record now stands, the bond was not properly approved. But, if the bond1 be good, it may yet be approved. Appellee had not the right to the office until he had executed bond, approved by the council, and has not the right to it then, unless he shows he was eligible to be elected to it in November, 1908.
For the reasons indicated, the judgment must be-reversed, and the cause is remanded for proceedings not inconsistent herewith.- ¡